Defaults Remedies. The occurrence of one or more of the following events will constitute a “Default” under this Note: (a) The nonpayment of any interest or principal under this Note when due, whether at maturity, by acceleration, or otherwise; (b) The filing by Borrower of a petition seeking relief for Borrower under any bankruptcy, insolvency, or debtor relief law; (c) The filing by any creditor of Borrower of a petition seeking the involuntary bankruptcy or insolvency of Borrower that is not dismissed or discharged within 60 days from the date of filing the petition; (d) The entry of a judgment against Borrower for the payment of money in an amount exceeding U.S. $50,000 that is not paid, stayed, or discharged within the time allowed by law for filing a notice of appeal of the judgment; (e) Borrower (i) makes a general assignment for the benefit of its creditors, (ii) admits in writing its inability to pay its debts generally as they mature, (iii) seeks, consents, or acquiesces to the appointment of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, or (iv) suffers the appointment, without its consent or acquiescence, of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, unless the appointment is vacated within 60 days after it becomes effective; (f) Any representation or warranty made by Borrower in this Note is incorrect in any material respect; (g) Borrower fails to observe or perform any covenant, condition, or agreement contained in this Note or any of the Credit Documents and the failure continues for 30 days after written notice to Borrower; (h) Borrower fails to pay when due any of its indebtedness (other than debt arising under this Note but including any other liability that it owes to Lender) or any interest or premium thereon when due (whether by scheduled maturity, acceleration, demand, or otherwise) and the failure continues after the applicable grace period, if any, specified in the agreement or instrument relating to the indebtedness; (i) One or more orders or judgments have been entered against Borrower and all those orders or judgments have not been vacated, discharged, stayed, or bonded pending appeal within 30 days from their entry; (j) The issuance of a writ of levy, distraint, execution, attachment, garnishment, or similar legal process (whether or not pursuant to a final judgment) against Borrower or any guarantor of this Note or any of their respective property in connection with a claim for the payment of money or damages in an amount exceeding $50,000; (k) The sequestration or assumption of custody by a court having jurisdiction of all or a substantial part of the property of Borrower or any guarantor of this Note, unless the custody or sequestration is terminated within 30 days after it is effective; (l) An attachment after judgment occurs on all or a substantial part of the property of Borrower or any guarantor of this Note, unless the resulting lien is discharged, or execution on the lien is stayed, within 15 days after it is issued or perfected; (m) A revocation or attempted revocation of any guaranty of this Note; (n) The violation of any law, or any act or omission, by Borrower or any guarantor of this Note that results in the imposition of a lien by operation of law on any of its property that is not discharged within 30 days after it attaches, unless the lien relates to a claim for payment of money or damages in an amount less than $50,000; (o) A sale or transfer or all or a majority of the assets (measured by fair value) or the outstanding voting common stock of Borrower pursuant to a sale, lease, merger, spin-off, foreclosure, dissolution, bankruptcy, liquidation, consolidation, tender offer, share exchange, reorganization, recapitalization, or other transaction; or (p) A breach or default by Borrower or any guarantor of this Note of any lease, contract, mortgage, agreement, instrument, promissory note, or other obligation or commitment to which it is a party or with respect to which it is otherwise liable that causes, with or without notice to Borrower or the guarantor, acceleration of the date when any liability, obligation, or indebtedness in the amount of $50,000 or more becomes due and payable. If a “Default” occurs, the entire unpaid principal amount of this Note will become immediately due and payable without further demand or notice or presentment by the holder of this Note, and the holder of this Note may proceed to protect his rights in the manner provided by applicable law. The rights, remedies, powers, and privileges provided to Lender are cumulative and not exclusive of any rights, remedies, powers, and privileges provided by law.
Appears in 1 contract
Sources: Equity Incentive Plan (Evolution Development Group, Inc.)
Defaults Remedies. The occurrence of one or more If any of the following events will constitute a (each, an “Event of Default” under this Note”) shall occur:
(a) The nonpayment 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 or additional rent) or any interest other charge or principal under this Note when due, payment whether at maturity, by acceleration, or otherwisenot herein included as rent;
(b) The filing by Borrower of a petition seeking relief for Borrower under Tenant violates or fails to perform or comply with any bankruptcynon-monetary covenant, insolvencyagreement or condition herein contained, or debtor relief lawand such failure is not cured within thirty (30) days after notice from Landlord; provided however, if Tenant’s failure to comply cannot reasonably be cured within thirty (30) days, Tenant shall be allowed additional time (not to exceed ninety (90) additional days) as is reasonably necessary to cure the failure so long as Tenant begins the cure within thirty (30) days and diligently pursues the cure to completion;
(c) The filing by Intentionally omitted; or
(d) An involuntary case under the federal bankruptcy law as now or hereafter constituted is commenced against Tenant or any creditor guarantor or surety of Borrower 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 of Borrower that is not dismissed or discharged within 60 days from the date of filing the petition;
(d) The entry of a judgment against Borrower for the payment of money in an amount exceeding U.S. $50,000 that is not paid, stayedother similar law, or discharged within consents to the time allowed appointment of or taking possession by law for filing a notice receiver or liquidator or assignee, trustee, custodian, sequestrator (or other similar official) of appeal Tenant or a Guarantor of the judgment;
(e) Borrower (i) 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 its creditors, (ii) creditors or admits in writing its inability to pay its debts generally as they maturebecome due or if Tenant is levied upon and is about to be sold out upon the Premises by any sheriff, (iii) seeks, consentsmarshal or constable, or acquiesces to the appointment of if Tenant or any Guarantor is a trusteecorporation and is dissolved or liquidated, receiverThen, liquidator, or fiscal agent for all or a substantial part of its property, or (iv) suffers the appointment, without its consent or acquiescence, of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, unless the appointment is vacated within 60 days after it becomes effective;
(f) Any representation or warranty made by Borrower in this Note is incorrect and in any material respect;
(g) Borrower fails to observe or perform any covenantsuch event, condition, or agreement contained in this Note or any at the sole option of the Credit Documents and the failure continues for 30 days after written notice to Borrower;
(h) Borrower fails to pay when due any of its indebtedness (other than debt arising under this Note but including any other liability that it owes to Lender) or any interest or premium thereon when due (whether by scheduled maturity, acceleration, demand, or otherwise) and the failure continues after the applicable grace period, if any, specified in the agreement or instrument relating to the indebtedness;Landlord,
(i) One or more orders or judgments have been entered against Borrower The whole balance of rent and all those orders or judgments have not been vacated, discharged, stayed, or bonded pending appeal within 30 days from their entry;
(j) The issuance other sums payable hereunder for the entire balance of a writ of levy, distraint, execution, attachment, garnishment, or similar legal process (whether or not pursuant to a final judgment) against Borrower or any guarantor the term of this Note Lease, herein reserved or any of their respective property in connection with a claim for the payment of money or damages in an amount exceeding $50,000;
(k) The sequestration or assumption of custody agreed to be paid by a court having jurisdiction of all or a substantial part of the property of Borrower or any guarantor of this Note, unless the custody or sequestration is terminated within 30 days after it is effective;
(l) An attachment after judgment occurs on all or a substantial part of the property of Borrower or any guarantor of this Note, unless the resulting lien is discharged, or execution on the lien is stayed, within 15 days after it is issued or perfected;
(m) A revocation or attempted revocation of any guaranty of this Note;
(n) The violation of any lawTenant, or any act or omissionpart 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 Borrower or any guarantor the terms of this Note Lease said balance of rent, charges and other sums and expenses were on that results date payable in the imposition of a lien by operation of law on any of its property that is not discharged within 30 days after it attaches, unless the lien relates to a claim for payment of money or damages in an amount less than $50,000;advance; and/or
(oii) A sale or transfer or all or 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 majority judgment for damages equal to the sum of the assets (measured by fair value) or the outstanding voting common stock of Borrower pursuant to a sale, lease, merger, spin-off, foreclosure, dissolution, bankruptcy, liquidation, consolidation, tender offer, share exchange, reorganization, recapitalization, or other transaction; orfollowing:
(pA) A breach or default by Borrower or any guarantor the unpaid rent and other sums which became due up to the time of this Note of any lease, contract, mortgage, agreement, instrument, promissory note, or such termination plus interest from the dates such rent and other obligation or commitment sums were due to which it is a party or with respect to which it is otherwise liable that causes, with or without notice to Borrower or the guarantor, acceleration 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 when any liability, obligation, or indebtedness in of the judgment exceeds the amount of $50,000 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 more becomes due and payable. If a “Default” occurswhich in the ordinary course would be likely to result therefrom including, without limitation, the entire unpaid principal amount cost of this Note will become immediately due repairing the Premises and payable without further demand reasonable attorneys’ fees; plus
(E) at Landlord’s election, such other amounts in addition to or notice or presentment by in lieu of the holder of this Note, and the holder of this Note foregoing as may proceed to protect his rights in the manner provided be permitted by applicable law. As used in the foregoing clause (B), the “present value at the time of judgment” shall be computed by adding to the rent past due or which would have become due interest at the Lease Interest Rate from the dates such rent was or would have become due to the date of the judgment; and/or
(iii) Landlord may terminate Tenant’s right of possession and may reenter and repossess the Premises by legal proceedings, force or otherwise, as allowed by law, 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 to relet the Premises or any part or parts thereof, either in Landlord’s name or otherwise, for a term or terms which may at Landlord’s option be less than or exceed the period which otherwise would have constituted the balance of the term of this Lease and at such rent or rents and upon such other terms and conditions as in Landlord’s sole discretion may seem advisable and to such person or persons as may in Landlord’s sole discretion seem best; and whether or not the Premises are relet, Tenant shall be liable for any loss, for such period as is or would have been the balance of the term of 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 or any parts thereof and Landlord shall apply such rents to Tenant’s unpaid rental obligations under this Lease. Notwithstanding any reletting without termination, 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 property as abandoned or at Landlord’s option store it in a public warehouse or elsewhere at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. Tenant waives the right to any notice to remove as may be specified in the Landlord and Tenant Act of Pennsylvania, Act of April 6, 1951, as amended, or any similar or successor provision of law. For the purposes of computing “the whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease,” “the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment” and “the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment,” as such quoted or any similar phrases are used in this Article 21, the amounts of additional rents which would have been due per year under this Lease shall be such amounts as Landlord shall reasonably estimate to be the per annum rates of additional rent for the calendar year during which this Lease was terminated or during which rent was accelerated, increasing annually on the first day of each calendar year thereafter at the rate of six percent (6%) per annum compounded. The rightsparties recognize that no adequate remedy at law may exist for a breach of Articles 6, remedies7 and 10 hereof. Accordingly, powersLandlord may obtain specific performance of any provision of Articles 6, 7 and 10 hereof. Neither such right nor its exercise shall limit any other remedies which Landlord may have against Tenant for a breach of such Articles, including, without limitation, all remedies available under this Article 21. The reference herein to specific performance in connection with Articles 6, 7 and 10 shall not preclude the availability of specific performance, in any appropriate case, for the breach or threatened breach of any other provision of this Lease. In addition to other remedies available to Landlord herein, Landlord may (but shall not be obligated to do so), cure any uncured Event of Default on behalf of Tenant, and privileges provided to Lender are cumulative 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 exclusive in lieu of any rights, remedies, powers, and privileges provided by law.of the foregoing rights granted to Landlord:
Appears in 1 contract
Sources: Lease Agreement (Trevena Inc)
Defaults Remedies. The occurrence of one or more of the following events will constitute a “Default” under this Note:
(a) The nonpayment occurrence of any interest or principal of the following shall constitute a default by Tenant under this Note Lease, each an “Event of Default;”
(i) if Tenant shall fail to pay any sum payable to Landlord hereunder when due, whether at maturityand such default shall continue uncured for more than ten (10) days after receipt of written notice that the same is due;
(ii) if Tenant shall fail to perform or observe any of the other covenants, by accelerationterms or conditions contained in this Lease for more than forty-five (45) days after written notice from Landlord, or otherwise;such longer period as is reasonably required to correct any such default, provided that Tenant promptly commences and diligently continues to effectuate a cure; or DRAFT
(iii) the filing of a petition by or against Tenant for adjudication as a bankruptcy or insolvency or for its reorganization or for the appointment pursuant to any local, state or federal bankruptcy or insolvency law of a receiver or trustee of Tenant’s property; or, an assignment by Tenant for the benefit of creditors; or, the taking possession of the property of Tenant by any local, state or federal governmental officer or agency or court-appointed official for the dissolution or liquidation of Tenant or for the operating, either temporary or permanent, of Tenant’s business; provided, however, that if any such action is commenced against Tenant the same shall not constitute a default if Tenant causes the same to be dismissed, stayed or discharged within ninety (90) days after the filing of same.
(b) The filing Upon the occurrence of an Event of Default, Landlord may:
(i) re-enter the Premises and remove all persons and all or any property therefrom, either by Borrower summary dispossession proceedings or by any suitable action or proceeding at law, and repossess and enjoy the Premises, together with all additions, alterations and improvements. Upon recovering possession of the Premises by reason of or based upon or arising out of an Event of Default on the part of Tenant, Landlord may, at Landlord’s option, either terminate this Lease or make such alterations and repairs as may be reasonably necessary in order to relet the Premises and relet the Premises or any part or parts thereof, either in Landlord’s name or otherwise, for a petition seeking relief term or terms which may at ▇▇▇▇▇▇▇▇’s option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and upon such other terms and conditions as in Landlord’s sole discretion may seem advisable and to such person or persons as may in Landlord’s discretion seem best.
(ii) terminate this Lease and the term hereby created without any right on the part of Tenant to waive the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; whereupon Landlord shall be entitled to recover damages for Borrower under any bankruptcy, insolvency, or debtor relief law;violation of Tenant’s obligations
(c) The filing No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy herein or by any creditor of Borrower of a petition seeking the involuntary bankruptcy law provided but each shall be cumulative and in addition to every other right or insolvency of Borrower that is not dismissed remedy given herein or discharged within 60 days from the date of filing the petition;now or hereafter existing at law or in equity or by statute.
(d) The entry No waiver by Landlord of any breach by Tenant of any of Tenant’s obligations, agreements or covenants herein shall be a judgment against Borrower for the payment waiver of money in an amount exceeding U.S. $50,000 that is not paidany subsequent breach or of any obligation, stayed, agreement or discharged within the time allowed by law for filing a notice of appeal of the judgment;
(e) Borrower (i) makes a general assignment for the benefit of its creditors, (ii) admits in writing its inability to pay its debts generally as they mature, (iii) seeks, consents, or acquiesces to the appointment of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, or (iv) suffers the appointment, without its consent or acquiescence, of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, unless the appointment is vacated within 60 days after it becomes effective;
(f) Any representation or warranty made by Borrower in this Note is incorrect in any material respect;
(g) Borrower fails to observe or perform any covenant, condition, or agreement contained in this Note or nor shall any of the Credit Documents and the failure continues forebearance by Landlord to seek a remedy for 30 days after written notice to Borrower;
(h) Borrower fails to pay when due any of its indebtedness (other than debt arising under this Note but including any other liability that it owes to Lender) or any interest or premium thereon when due (whether breach by scheduled maturity, acceleration, demand, or otherwise) and the failure continues after the applicable grace period, if any, specified in the agreement or instrument relating to the indebtedness;
(i) One or more orders or judgments have been entered against Borrower and all those orders or judgments have not been vacated, discharged, stayed, or bonded pending appeal within 30 days from their entry;
(j) The issuance of Tenant be a writ of levy, distraint, execution, attachment, garnishment, or similar legal process (whether or not pursuant to a final judgment) against Borrower or any guarantor of this Note or any of their respective property in connection with a claim for the payment of money or damages in an amount exceeding $50,000;
(k) The sequestration or assumption of custody waiver by a court having jurisdiction of all or a substantial part of the property of Borrower or any guarantor of this Note, unless the custody or sequestration is terminated within 30 days after it is effective;
(l) An attachment after judgment occurs on all or a substantial part of the property of Borrower or any guarantor of this Note, unless the resulting lien is discharged, or execution on the lien is stayed, within 15 days after it is issued or perfected;
(m) A revocation or attempted revocation Landlord of any guaranty of this Note;
(n) The violation of any law, or any act or omission, by Borrower or any guarantor of this Note that results in the imposition of a lien by operation of law on any of its property that is not discharged within 30 days after it attaches, unless the lien relates to a claim for payment of money or damages in an amount less than $50,000;
(o) A sale or transfer or all or a majority of the assets (measured by fair value) or the outstanding voting common stock of Borrower pursuant to a sale, lease, merger, spin-off, foreclosure, dissolution, bankruptcy, liquidation, consolidation, tender offer, share exchange, reorganization, recapitalization, or other transaction; or
(p) A breach or default by Borrower or any guarantor of this Note of any lease, contract, mortgage, agreement, instrument, promissory note, or other obligation or commitment to which it is a party or rights and remedies with respect to which it is otherwise liable that causes, with such or without notice to Borrower or the guarantor, acceleration of the date when any liability, obligation, or indebtedness in the amount of $50,000 or more becomes due and payable. If a “Default” occurs, the entire unpaid principal amount of this Note will become immediately due and payable without further demand or notice or presentment by the holder of this Note, and the holder of this Note may proceed to protect his rights in the manner provided by applicable law. The rights, remedies, powers, and privileges provided to Lender are cumulative and not exclusive of any rights, remedies, powers, and privileges provided by lawsubsequent breach.
Appears in 1 contract
Sources: Lease and Asset Transfer Agreement
Defaults Remedies. 8.1 The occurrence following shall constitute events of one or more default ("Events of the following events will constitute a “Default” under this Note") hereunder:
(a) The nonpayment of Lessee fails to make any interest or principal under this Note payments to Lessor when due, whether at maturity, by acceleration, or otherwisedue hereunder;
(b) The filing by Borrower any representation or warranty of a petition seeking relief for Borrower under Lessee contained herein or in any bankruptcy, insolvency, document furnished to Lessor in connection herewith is incorrect or debtor relief lawmisleading in any material respect when made;
(c) The filing Lessee fails to observe or perform any other covenant, agreement or warranty made by Lessee hereunder or under any creditor document delivered pursuant hereto and such failure continues for 10 days after written notice thereof to Lessee;
(d) any default occurs under any other agreement for borrowing money or receiving credit under which Lessee or any guarantor or general partner of Borrower Lessee may be obligated as borrower, lessee or guarantor, if such default (i) consists of a the failure to pay any indebtedness when due or perform any other obligation thereunder and (ii) gives the holder of the indebtedness the right to accelerate the indebtedness;
(e) Lessee, any guarantor of this Lease or any general partner of Lessee makes an assignment for the benefit of creditors or files any petition seeking or action under any bankruptcy, reorganization, insolvency or moratorium law, or any other law or laws for the relief of, or relating to, debtors;
(f) any guarantor of this Lease breaches or fails to perform any covenant in its guaranty, required by this Lease expires or terminates without Lessor's consent;
(g) an involuntary petition is filed under any bankruptcy statute against Lessee, any guarantor of this Lease or insolvency any general partner of Borrower that Lessee, or any receiver, trustee, custodian or similar official is not dismissed appointed to take possession of the properties of Lessee, any guarantor of this Lease or discharged any general partner of Lessee, unless such petition or appointment is set aside or withdrawn or ceases to be in effect within 60 days from the date of the filing the petition;or appointment; or
(dh) The entry Lessee, any guarantor of this Lease liquidates, dissolves, or sells, leases or disposes of a judgment against Borrower substantial portion of its business or assets.
8.2 If any Event of Default occurs, Lessor, at its option, may:
(a) proceed by appropriate court action or actions either at law or in equity, to enforce performance by Lessee of the applicable covenants of this Lease or to recover damages for the breach thereof; or
(b) by notice in writing to Lessee terminate this Lease, whereupon all rights of Lessee to retain possession of and use the Units shall terminate, but Lessee shall remain liable as hereinafter provided, and Lessor may, at its option, do any one or more of the following: (i) declare the aggregate Balance Due with respect to the Units and all Other Charges immediately due and payable and recover any damages and expenses in addition thereto Lessor sustains by reason of the breach of any covenant, representation or warranty contained in this Lease other than for the payment of money in an amount exceeding U.S. $50,000 that is not paid, stayed, or discharged within the time allowed by law for filing a notice of appeal of the judgment;
(e) Borrower (i) makes a general assignment for the benefit of its creditors, rent; (ii) admits in writing its inability enforce the security interest given hereunder pursuant to pay its debts generally as they mature, the Uniform Commercial Code or any other law; (iii) seeks, consents, or acquiesces to enter upon the appointment premises where any of a trustee, receiver, liquidator, or fiscal agent for the Units may be and take possession of all or a substantial part any of its property, or such Units; and (iv) suffers require Lessee to return the appointmentUnits as provided in Section 9.
8.3 Lessor shall have any and all rights given to a secured party by law, without its consent and may, but is not required to, sell the Units in one or acquiescencemore sales. Lessor may purchase the Units at such sale. Lessee acknowledges that sales for cash or on credit to a wholesaler, retailer or user of a trustee, receiver, liquidatorthe Units, or fiscal agent at public or private auction, are all commercially reasonable. The proceeds of such sale shall be applied in the following order. First, to the reasonable expenses of retaking, ----- holding, preparing for sale and selling, including the allocated time charges, costs and expenses of internal counsel for Lessor and any other attorneys' fees and expenses incurred by Lessor; Second, to the amounts, except those specified ------ below, which under the terms of this Lease are due or have accrued; Third, to ----- late charges; and Fourth, to the aggregate Balance Due. Any surplus shall be ------ paid to the person or persons entitled thereto. If there is a deficiency, Lessee will promptly pay the same to Lessor.
8.4 Lessee agrees to pay all reasonable allocated time charges, costs and expenses of internal counsel for Lessor and any other attorneys' fees, expenses or a substantial part out-of-pocket costs incurred by Lessor in enforcing this Lease.
8.5 The remedies herein provided in favor of Lessor shall not be deemed exclusive, but shall be cumulative, and shall be in addition to all other remedies in its property, unless the appointment is vacated within 60 days after it becomes effective;favor existing at law or in equity.
(f) Any representation or warranty made by Borrower in this Note is incorrect in any material respect;
(g) Borrower 8.6 If Lessee fails to observe or perform any covenant, condition, or agreement contained in this Note or any of the Credit Documents and the failure continues for 30 days after written notice to Borrower;
(h) Borrower fails to pay when due any of its indebtedness (other than debt arising under this Note but including any other liability that it owes to Lender) or any interest or premium thereon when due (whether agreements contained herein, Lessor may perform such agreement, and Lessee shall pay the expenses incurred by scheduled maturity, acceleration, demand, or otherwise) and the failure continues after the applicable grace period, if any, specified in the agreement or instrument relating to the indebtedness;
(i) One or more orders or judgments have been entered against Borrower and all those orders or judgments have not been vacated, discharged, stayed, or bonded pending appeal within 30 days from their entry;
(j) The issuance of a writ of levy, distraint, execution, attachment, garnishment, or similar legal process (whether or not pursuant to a final judgment) against Borrower or any guarantor of this Note or any of their respective property Lessor in connection with a claim for the payment of money or damages in an amount exceeding $50,000;
(k) The sequestration or assumption of custody by a court having jurisdiction of all or a substantial part of the property of Borrower or any guarantor of this Note, unless the custody or sequestration is terminated within 30 days after it is effective;
(l) An attachment after judgment occurs on all or a substantial part of the property of Borrower or any guarantor of this Note, unless the resulting lien is discharged, or execution on the lien is stayed, within 15 days after it is issued or perfected;
(m) A revocation or attempted revocation of any guaranty of this Note;
(n) The violation of any law, or any act or omission, by Borrower or any guarantor of this Note that results in the imposition of a lien by operation of law on any of its property that is not discharged within 30 days after it attaches, unless the lien relates to a claim for payment of money or damages in an amount less than $50,000;
(o) A sale or transfer or all or a majority of the assets (measured by fair value) or the outstanding voting common stock of Borrower pursuant to a sale, lease, merger, spin-off, foreclosure, dissolution, bankruptcy, liquidation, consolidation, tender offer, share exchange, reorganization, recapitalization, or other transaction; or
(p) A breach or default by Borrower or any guarantor of this Note of any lease, contract, mortgage, agreement, instrument, promissory note, or other obligation or commitment to which it is a party or with respect to which it is otherwise liable that causes, with or without notice to Borrower or the guarantor, acceleration of the date when any liability, obligation, or indebtedness in the amount of $50,000 or more becomes due and payable. If a “Default” occurs, the entire unpaid principal amount of this Note will become immediately due and payable without further demand or notice or presentment by the holder of this Note, and the holder of this Note may proceed to protect his rights in the manner provided by applicable law. The rights, remedies, powers, and privileges provided to Lender are cumulative and not exclusive of any rights, remedies, powers, and privileges provided by lawsuch performance upon demand.
Appears in 1 contract
Sources: Machinery and Equipment Pledge Agreement (Tarrant Apparel Group)
Defaults Remedies. The occurrence of one or more If any of the following events will constitute a shall occur (each an “Event of Default” under this Note:”):
(a) The nonpayment Tenant does not pay in full when due any and all installments of rent (whether Fixed Rent or additional rent) or any interest other charge or principal under this Note when duepayment whether or not herein included as rent, whether at maturityand such failure to pay continues for ten (10) days after written notice of the failure from Landlord to Tenant, by accelerationprovided, however, in no event shall Landlord be required to give such a notice concerning the same type of recurring installment or otherwisepayment more than twice in any calendar year;
(b) The filing by Borrower Tenant violates or fails to perform or comply with any covenant, agreement or condition herein contained and such violation or failure continues for thirty (30) days after written notice of a petition seeking relief for Borrower under any bankruptcy, insolvencythe violation or failure from Landlord to Tenant, or debtor relief lawif the required cure for the violation or failure cannot be completed within thirty (30) days, if Tenant fails to commence to cure the failure within thirty (30) days and/or fails to diligently and continuously attempt to complete the cure as soon as reasonably possible thereafter provided, however, in no event shall such initial thirty (30) day period be extended more than an additional thirty (30) days;
(c) The filing by An involuntary case under the federal bankruptcy law as now or hereafter constituted is commenced against Tenant, or under any creditor of Borrower of other applicable federal or state bankruptcy, insolvency, reorganization, or other similar law, or there is filed against Tenant a petition seeking the appointment of a receiver, liquidator or assignee, custodian, trustee, sequestrator (or similar official) of Tenant of any substantial part of Tenant’s property, or seeking the winding-up or liquidation of Tenant’s affairs and such involuntary case or petition is not dismissed within sixty (60) days after the filing thereof, of if Tenant 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 of Borrower that is not dismissed or discharged within 60 days from the date of filing the petition;
(d) The entry of a judgment against Borrower for the payment of money in an amount exceeding U.S. $50,000 that is not paid, stayedother similar law, or discharged within consents to the time allowed appointment of or taking possession by law for filing a notice receiver or liquidator or assignee, trustee, custodian, sequestrator (or other similar official) of appeal Tenant of the judgment;
(e) Borrower (i) any substantial part of Tenant’s property, or if Tenant makes a general any assignment for the benefit of its creditors, (ii) creditors or admits in writing its inability to pay its debts generally as they mature, (iii) seeks, consents, become due or acquiesces to the appointment of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, or (iv) suffers the appointment, without its consent or acquiescence, of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, unless the appointment is vacated within 60 days after it becomes effective;
(f) Any representation or warranty made by Borrower in this Note is incorrect in any material respect;
(g) Borrower fails to observe generally pay its debts as they become due or perform if Tenant is levied upon and is about to be sold out upon the Premises by any covenantsheriff, condition▇▇▇▇▇▇▇▇ or constable or Tenant or its stockholders or Board of Directors or any committee thereof takes any action in contemplation, preparation or agreement contained in this Note furtherance of or for any of the Credit Documents and the failure continues for 30 days after written notice to Borrower;
(h) Borrower fails to pay when due any of its indebtedness (other than debt arising under this Note but including any other liability that it owes to Lender) or any interest or premium thereon when due (whether by scheduled maturityforegoing, acceleration, demand, or otherwise) and the failure continues after the applicable grace periodor, if anyTenant is a corporation and is dissolved or liquidated, specified in Then, and upon the agreement or instrument relating to occurrence of an Event of Default, at the indebtedness;sole option of Landlord,
(i) One or more orders or judgments have been entered against Borrower The whole balance of rent and all those orders or judgments have not been vacated, discharged, stayed, or bonded pending appeal within 30 days from their entry;
(j) The issuance of a writ of levy, distraint, execution, attachment, garnishment, or similar legal process (whether or not pursuant to a final judgment) against Borrower or any guarantor of this Note or any of their respective property in connection with a claim other sums payable hereunder for the payment of money or damages in an amount exceeding $50,000;
(k) The sequestration or assumption of custody by a court having jurisdiction of all or a substantial part entire balance of the property of Borrower Term but accelerated and thus due and payable only on a biennial basis, herein reserved or any guarantor of this Note, unless the custody or sequestration is terminated within 30 days after it is effective;
(l) An attachment after judgment occurs on all or a substantial part of the property of Borrower or any guarantor of this Note, unless the resulting lien is discharged, or execution on the lien is stayed, within 15 days after it is issued or perfected;
(m) A revocation or attempted revocation of any guaranty of this Note;
(n) The violation of any lawagreed to be paid by Tenant, or any act or omissionpart of such rent, charges and other sums, shall be taken to be due and payable from Tenant and in arrears as if by Borrower or any guarantor the terms of this Note Lease said balance of rent, charges and other sums and expenses were on that results date payable in the imposition advance but net of all rent actually received by Tenant from a lien by operation of law on any of its property that is not discharged within 30 days after it attachesreletting, unless the lien relates to a claim for payment of money or damages in an amount less than $50,000;if any; and/or
(oii) A sale or transfer or all or 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 majority judgment for damages equal to the sum of the assets (measured by fair value) or the outstanding voting common stock of Borrower pursuant to a sale, lease, merger, spin-off, foreclosure, dissolution, bankruptcy, liquidation, consolidation, tender offer, share exchange, reorganization, recapitalization, or other transaction; orfollowing:
(pA) A breach or default by Borrower or any guarantor the unpaid rent and other sums which became due up to the time of this Note of any lease, contract, mortgage, agreement, instrument, promissory note, or such termination plus interest from the dates such rent and other obligation or commitment sums were due to which it is a party or with respect to which it is otherwise liable that causes, with or without notice to Borrower or the guarantor, acceleration date of the judgment at the Lease Interest Rate; provided, however, Landlord may only accelerate unpaid rent for each biennial period as it occurs during the remaining Term of the Lease; 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 when any liability, obligation, or indebtedness in of the judgment exceeds the amount of $50,000 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 more becomes due and payable. If a “Default” occurswhich in the ordinary course would be likely to result therefrom including, without limitation, the entire unpaid principal amount cost of this Note will become immediately due repairing the Premises and payable without further demand reasonable attorneys fees; plus
(E) Landlord’s election, such other amounts in addition to or notice or presentment by in lieu of the holder of this Note, and the holder of this Note foregoing as may proceed to protect his rights in the manner provided be permitted by applicable law. As used in the foregoing clause (B), the “present value at the time of judgment” shall be computed by adding to the rent past due or which would have become due interest at the Lease Interest Rate from the dates such rent was or would have become due to the date of the judgment; and/or
(iii) Landlord may terminate Tenant’s right of possession and may reenter and repossess the Premises by legal proceedings, force or otherwise, without terminating this Lease. After reentry or retaking or recovering of the Premises, whether by termination of this Lease or not, Landlord may, but shall be under no obligation to, make such alterations and repairs, as Landlord may deem then necessary or advisable and relet the Premises or any part or parts thereof, either in Landlord’s name or otherwise, for a term or terms which may at Landlord’s option be less than or exceed the period which otherwise would have constituted the balance of the term of this Lease and at such rent or rents and upon such other terms and conditions as in Landlord’s sole discretion may seem advisable and to such person or persons as may in Landlord’s sole discretion seem best; and whether or not the Premises is 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 cost and expenses of reletting and of redecorating, remodeling or making repairs and alterations to the Premises for the purpose or reletting, the amount of such liability to be computed monthly and to be paid by Tenant to Landlord from time to time upon demand. However, Landlord shall utilize commercially reasonable efforts to mitigate its damages upon the occurrence of an Event of Default. Tenant shall not be entitled to any rents or other sums received by Landlord in excess of those provided for in this Lease. Tenant agrees that Landlord may file suit to recover any rent and other sums falling due under the terms of this Article from time to time and that no suit or recovery of any amount due hereunder to Landlord shall be any defense to any subsequent action brought for any other amount due hereunder to Landlord. Tenant, for Tenant and Tenant’s successors and assigns, hereby irrevocably constitutes and appoints Landlord, Tenant’s and then-agent to collect the rents due or to become due under all subleases of the Premises or any parts thereof without in any way affecting Tenant’s obligation to pay any unpaid balance of rent or any other sum due or to become due hereunder. Notwithstanding any reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for Tenant’s previous breach. Whenever Landlord shall have the right to reenter the Premises, it shall have the right to remove all persons and property from the Premises and either treat such property as abandoned or at Landlord’s option store it in a public warehouse or elsewhere at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. However Landlord hereby expressly agrees to subordinate in favor of a lender of Tenant any statutory and/or contractual lien it may have or seek to claim against Tenant’s personal property located at the Building. Attached hereto as Exhibit “I” is the form of Landlord’s Subordination and Consent (the “Landlord Consent”) which Landlord shall execute and deliver to Tenant upon request in favor of a lender of Tenant. Landlord agrees to reasonably consider modifications to the Landlord Consent requested by or on behalf of a secured party. Tenant waives the right to any notice to remove as may be specified in the Landlord and Tenant Act of Pennsylvania, Act of April 6, 1951, as amended, or any similar or successor provision of law. For the purposes of computing “the whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease,” “the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment” and “the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment,” as such quoted or any similar phrases are used in this Article 21, the amounts of additional rents which would have been due per year under this Lease shall be such amounts as Landlord shall reasonably estimate to be the per annum rates of additional rent for the calendar year during which this Lease was terminated or during which rent was accelerated, increasing annually on the first day of each calendar year thereafter at the rate of four percent (4%) per annum compounded. The rightsparties recognize that no adequate remedy at law may exist for a breach of Articles 6, remedies7 and 10 hereof. Accordingly, powersLandlord may obtain specific performance of any provision of Articles 6, 7 and 10 hereof. Neither such right nor its exercise shall limit any other remedies which Landlord may have against Tenant for a breach of such Articles, including, without limitation, all remedies available under this Article 21. The reference herein to specific performance in connection with Articles 6, 7 and 10 shall not preclude the availability of specific performance, in any appropriate case, for the breach or threatened breach of any other provision of this Lease. In addition to other remedies available to Landlord herein, Landlord may (but shall not be obligated to do so), cure any default on behalf of Tenant, and privileges provided to Lender are cumulative 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. Also in addition to, and not exclusive in lieu of any rights, remedies, powers, and privileges provided by law.of the foregoing rights granted to Landlord:
Appears in 1 contract
Sources: Lease Agreement (MEDecision, Inc.)
Defaults Remedies. The occurrence of one or more of the following events will constitute a “Default” under this Note:
(a) The nonpayment occurrence of any interest or principal of the following shall constitute a default by Tenant under this Note Lease, each an “Event of Default;”
(i) if Tenant shall fail to pay any sum payable to Landlord hereunder when due, whether at maturityand such default shall continue uncured for more than ten (10) days after receipt of written notice that the same is due;
(ii) if Tenant shall fail to perform or observe any of the other covenants, by accelerationterms or conditions contained in this Lease for more than forty-five (45) days after written notice from Landlord, or otherwise;such longer period as is reasonably required to correct any such default, provided that Tenant promptly commences and diligently continues to effectuate a cure; or
(iii) the filing of a petition by or against Tenant for adjudication as a bankruptcy or insolvency or for its reorganization or for the appointment pursuant to any local, state or federal bankruptcy or insolvency law of a receiver or trustee of Tenant’s property; or, an assignment by Tenant for the benefit of creditors; or, the taking possession of the property of Tenant by any local, state or federal governmental officer or agency or court-appointed official for the dissolution or liquidation of Tenant or for the operating, either temporary or permanent, of Tenant’s business; provided, however, that if any such action is commenced against Tenant the same shall not constitute a default if Tenant causes the same to be dismissed, stayed or discharged within ninety (90) days after the filing of same.
(b) The filing Upon the occurrence of an Event of Default, Landlord may:
(i) re-enter the Premises and remove all persons and all or any property therefrom, either by Borrower summary dispossession proceedings or by any suitable action or proceeding at law, and repossess and enjoy the Premises, together with all additions, alterations and improvements. Upon recovering possession of the Premises by reason of or based upon or arising out of an Event of Default on the part of Tenant, Landlord may, at Landlord’s option, either terminate this Lease or make such alterations and repairs as may be reasonably necessary in order to relet the Premises and relet the Premises or any part or parts thereof, either in Landlord’s name or otherwise, for a petition seeking relief term or terms which may at Landlord’s option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and upon such other terms and conditions as in Landlord’s sole discretion may seem advisable and to such person or persons as may in Landlord’s discretion seem best.
(ii) terminate this Lease and the term hereby created without any right on the part of Tenant to waive the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; whereupon Landlord shall be entitled to recover damages for Borrower under any bankruptcy, insolvency, or debtor relief law;violation of Tenant’s obligations
(c) The filing No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy herein or by any creditor of Borrower of a petition seeking the involuntary bankruptcy law provided but each shall be cumulative and in addition to every other right or insolvency of Borrower that is not dismissed remedy given herein or discharged within 60 days from the date of filing the petition;now or hereafter existing at law or in equity or by statute.
(d) The entry No waiver by Landlord of any breach by Tenant of any of Tenant’s obligations, agreements or covenants herein shall be a judgment against Borrower for the payment waiver of money in an amount exceeding U.S. $50,000 that is not paidany subsequent breach or of any obligation, stayed, agreement or discharged within the time allowed by law for filing a notice of appeal of the judgment;
(e) Borrower (i) makes a general assignment for the benefit of its creditors, (ii) admits in writing its inability to pay its debts generally as they mature, (iii) seeks, consents, or acquiesces to the appointment of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, or (iv) suffers the appointment, without its consent or acquiescence, of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, unless the appointment is vacated within 60 days after it becomes effective;
(f) Any representation or warranty made by Borrower in this Note is incorrect in any material respect;
(g) Borrower fails to observe or perform any covenant, condition, or agreement contained in this Note or nor shall any of the Credit Documents and the failure continues forebearance by Landlord to seek a remedy for 30 days after written notice to Borrower;
(h) Borrower fails to pay when due any of its indebtedness (other than debt arising under this Note but including any other liability that it owes to Lender) or any interest or premium thereon when due (whether breach by scheduled maturity, acceleration, demand, or otherwise) and the failure continues after the applicable grace period, if any, specified in the agreement or instrument relating to the indebtedness;
(i) One or more orders or judgments have been entered against Borrower and all those orders or judgments have not been vacated, discharged, stayed, or bonded pending appeal within 30 days from their entry;
(j) The issuance of Tenant be a writ of levy, distraint, execution, attachment, garnishment, or similar legal process (whether or not pursuant to a final judgment) against Borrower or any guarantor of this Note or any of their respective property in connection with a claim for the payment of money or damages in an amount exceeding $50,000;
(k) The sequestration or assumption of custody waiver by a court having jurisdiction of all or a substantial part of the property of Borrower or any guarantor of this Note, unless the custody or sequestration is terminated within 30 days after it is effective;
(l) An attachment after judgment occurs on all or a substantial part of the property of Borrower or any guarantor of this Note, unless the resulting lien is discharged, or execution on the lien is stayed, within 15 days after it is issued or perfected;
(m) A revocation or attempted revocation Landlord of any guaranty of this Note;
(n) The violation of any law, or any act or omission, by Borrower or any guarantor of this Note that results in the imposition of a lien by operation of law on any of its property that is not discharged within 30 days after it attaches, unless the lien relates to a claim for payment of money or damages in an amount less than $50,000;
(o) A sale or transfer or all or a majority of the assets (measured by fair value) or the outstanding voting common stock of Borrower pursuant to a sale, lease, merger, spin-off, foreclosure, dissolution, bankruptcy, liquidation, consolidation, tender offer, share exchange, reorganization, recapitalization, or other transaction; or
(p) A breach or default by Borrower or any guarantor of this Note of any lease, contract, mortgage, agreement, instrument, promissory note, or other obligation or commitment to which it is a party or rights and remedies with respect to which it is otherwise liable that causes, with such or without notice to Borrower or the guarantor, acceleration of the date when any liability, obligation, or indebtedness in the amount of $50,000 or more becomes due and payable. If a “Default” occurs, the entire unpaid principal amount of this Note will become immediately due and payable without further demand or notice or presentment by the holder of this Note, and the holder of this Note may proceed to protect his rights in the manner provided by applicable law. The rights, remedies, powers, and privileges provided to Lender are cumulative and not exclusive of any rights, remedies, powers, and privileges provided by lawsubsequent breach.
Appears in 1 contract
Sources: Lease and Asset Transfer Agreement
Defaults Remedies. The occurrence of one or more of the following events will constitute a “Default” under this Note:
(a) The nonpayment If Tenant does not pay in full when due and without demand any and all installments of annual minimum rent or additional rent or any interest other charges or principal under this Note when due, payments whether at maturity, by acceleration, or otherwise;not herein included as rent; or
(b) The filing by Borrower of a petition seeking relief for Borrower under If Tenant violates or fails to perform or otherwise breaks any bankruptcyagreement, insolvencyterm, covenant or debtor relief law;condition herein contained or any other obligation herein imposed upon Tenant; or
(c) The filing by any creditor If Tenant abandons the Premises or removes or attempts to remove Tenant's goods or property therefrom other than in the ordinary course of Borrower of a petition seeking the involuntary bankruptcy or insolvency of Borrower business without having first paid to Landlord in full all minimum annual rent, additional rent and other charges that is not dismissed or discharged within 60 days from the date of filing the petition;may have become due as well as all which will become due thereafter; or
(d) The entry of a judgment against Borrower for the payment of money If Tenant becomes insolvent or bankrupt in any sense or makes an amount exceeding U.S. $50,000 that is not paid, stayed, or discharged within the time allowed by law for filing a notice of appeal of the judgment;
(e) Borrower (i) makes a general assignment for the benefit of its creditors, (ii) admits in writing its inability to pay its debts generally as they mature, (iii) seeks, consentscreditors for any such purpose, or acquiesces to files a petition in bankruptcy or reorganization or for any arrangement with creditors under any federal or state act, or files a bill in equity or otherwise initiates proceedings in any court for t▇▇ ▇ppointment of a receiver, trustee, liquidator, custodian, conservator or similar official for any of Tenant's assets, or if any of the real or personal property of Tenant shall be levied upon by any sheriff, marshal, or constable; or
(e) If a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state act is filed against Tenant or if a bill in equity or other proceeding is filed in any court by any cred▇▇▇▇ of Tenant for the appointment of a receiver, trustee, receiver, liquidator, custodian, conservator or fiscal agent similar official for any of Tenant's assets; Then Landlord shall have the following rights:
(1) To accelerate the whole or any part of the rent for the entire unexpired balance of the term of this Lease, as well as all other charges, payments, costs and expenses herein agreed to be paid by Tenant; or
(2) To re-enter the Premises and remove all persons and all or any property therefrom, either by summary dispossess proceedings or by any suitable action or proceeding at law, and repossess and enjoy the Premises, together with all additions, alterations and improvements. Upon recovering possession of the Premises by reason of or based upon or arising out of a substantial default on the part of its propertyTenant, Landlord may, at Landlord's option, either terminate this Lease or (iv) suffers make such alterations and repairs as may be necessary in order to relet the appointment, without its consent or acquiescence, of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, unless Premises and may relet the appointment is vacated within 60 days after it becomes effective;
(f) Any representation or warranty made by Borrower in this Note is incorrect in any material respect;
(g) Borrower fails to observe or perform any covenant, condition, or agreement contained in this Note 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 would otherwise have constituted the balance of the Credit Documents 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 discretion seem best; upon each such reletting all rents received by Landlord from such reletting shall be applied: first, to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting, including brokerage fees and attorney's fees and all costs of such alterations and repairs; third, to the payment of rent due and unpaid hereunder; and the failure continues for 30 days after written notice to Borrower;
(h) Borrower fails to pay when due any of its indebtedness (other than debt arising under this Note but including any other liability that it owes to Lender) or any interest or premium thereon when due (whether by scheduled maturity, acceleration, demand, or otherwise) and the failure continues after the applicable grace periodresidue, if any, specified shall be held by Landlord and applied in the agreement or instrument relating to the indebtedness;
(i) One or more orders or judgments have been entered against Borrower and all those orders or judgments have not been vacated, discharged, stayed, or bonded pending appeal within 30 days from their entry;
(j) The issuance of a writ of levy, distraint, execution, attachment, garnishment, or similar legal process (whether or not pursuant to a final judgment) against Borrower or any guarantor of this Note or any of their respective property in connection with a claim for the payment of money or damages in an amount exceeding $50,000;
(k) The sequestration or assumption of custody future rent as it may become due and payable hereunder. If such rentals received from such reletting during any month shall be less than that to be paid during that month by a court having jurisdiction of all or a substantial part of the property of Borrower or Tenant hereunder, Tenant shall pay any guarantor of this Note, unless the custody or sequestration is terminated within 30 days after it is effective;
(l) An attachment after judgment occurs on all or a substantial part of the property of Borrower or any guarantor of this Note, unless the resulting lien is discharged, or execution on the lien is stayed, within 15 days after it is issued or perfected;
(m) A revocation or attempted revocation such deficiency to Landlord. No waiver by Landlord of any guaranty of this Note;
(n) The violation breach by Tenant herein shall be a waiver of any lawsubsequent breach, or nor shall any act or omission, forbearance by Borrower or Landlord to seek a remedy for any guarantor of this Note that results in the imposition of breach by Tenant be a lien waiver by operation of law on any of its property that is not discharged within 30 days after it attaches, unless the lien relates to a claim for payment of money or damages in an amount less than $50,000;
(o) A sale or transfer or all or a majority of the assets (measured by fair value) or the outstanding voting common stock of Borrower pursuant to a sale, lease, merger, spin-off, foreclosure, dissolution, bankruptcy, liquidation, consolidation, tender offer, share exchange, reorganization, recapitalization, or other transaction; or
(p) A breach or default by Borrower or any guarantor of this Note Landlord of any lease, contract, mortgage, agreement, instrument, promissory note, or other obligation or commitment to which it is a party or rights and remedies with respect to which it is otherwise liable that causes, with such or without notice to Borrower or the guarantor, acceleration of the date when any liability, obligation, or indebtedness in the amount of $50,000 or more becomes due and payablesubsequent breach. If a “Default” occurs, the entire unpaid principal amount of this Note will become immediately due and payable without further demand or notice or presentment by the holder of this Note, and the holder of this Note may proceed to protect his Landlord's rights in the manner provided by applicable law. The rights, remedies, powers, and privileges provided to Lender hereunder are cumulative and not exclusive of any rights, remedies, powers, and privileges other right provided hereunder or by law.
Appears in 1 contract
Defaults Remedies. The occurrence of one or more If any of the following events will constitute a shall occur (each an “Event of Default” under this Note:”):
(a) The nonpayment Tenant does not pay in full when due any and all installments of rent (whether Fixed Rent or additional rent) or any interest other charge or principal under this Note when duepayment whether or not herein included as rent, whether at maturityand such failure to pay continues for ten (10) days after written notice of the failure from Landlord to Tenant, by accelerationprovided, however, in no event shall Landlord be required to give such a notice concerning the same type of recurring installment or otherwisepayment more than twice in any calendar year;
(b) The filing by Borrower Tenant violates or fails to perform or comply with any covenant, agreement or condition herein contained and such violation or failure continues for thirty (30) days after written notice of a petition seeking relief for Borrower under any bankruptcy, insolvencythe violation or failure from Landlord to Tenant, or debtor relief lawif the required cure for the violation or failure cannot be completed within thirty (30) days, if Tenant fails to commence to cure the failure within thirty (30) days and/or fails to diligently and continuously attempt to complete the cure as soon as reasonably possible thereafter provided, however, in no event shall such initial thirty (30) day period be extended more than an additional thirty (30) days;
(c) The filing by An involuntary case under the federal bankruptcy law as now or hereafter constituted is commenced against Tenant, or under any creditor of Borrower of other applicable federal or state bankruptcy, insolvency, reorganization, or other similar law, or there is filed against Tenant a petition seeking the appointment of a receiver, liquidator or assignee, custodian, trustee, sequestrator (or similar official) of Tenant of any substantial part of Tenant’s property, or seeking the winding-up or liquidation of Tenant’s affairs and such involuntary case or petition is not dismissed within sixty (60) days after the filing thereof, of if Tenant 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 of Borrower that is not dismissed or discharged within 60 days from the date of filing the petition;
(d) The entry of a judgment against Borrower for the payment of money in an amount exceeding U.S. $50,000 that is not paid, stayedother similar law, or discharged within consents to the time allowed appointment of or taking possession by law for filing a notice receiver or liquidator or assignee, trustee, custodian, sequestrator (or other similar official) of appeal Tenant of the judgment;
(e) Borrower (i) any substantial part of Tenant’s property, or if Tenant makes a general any assignment for the benefit of its creditors, (ii) creditors or admits in writing its inability to pay its debts generally as they mature, (iii) seeks, consents, become due or acquiesces to the appointment of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, or (iv) suffers the appointment, without its consent or acquiescence, of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, unless the appointment is vacated within 60 days after it becomes effective;
(f) Any representation or warranty made by Borrower in this Note is incorrect in any material respect;
(g) Borrower fails to observe generally pay its debts as they become due or perform if Tenant is levied upon and is about to be sold out upon the Building by any covenantsheriff, condition▇▇▇▇▇▇▇▇ or constable or Tenant or its stockholders or Board of Directors or any committee thereof takes any action in contemplation, preparation or agreement contained in this Note furtherance of or for any of the Credit Documents and the failure continues for 30 days after written notice to Borrower;
(h) Borrower fails to pay when due any of its indebtedness (other than debt arising under this Note but including any other liability that it owes to Lender) or any interest or premium thereon when due (whether by scheduled maturityforegoing, acceleration, demand, or otherwise) and the failure continues after the applicable grace periodor, if anyTenant is a corporation and is dissolved or liquidated, specified in Then, and upon the agreement or instrument relating to occurrence of an Event of Default, at the indebtedness;sole option of Landlord,
(i) One The whole balance of rent and all other sums payable hereunder for the entire balance of the Term but accelerated and thus due and payable only on a biennial basis, herein reserved or more orders agreed to be paid by Tenant, or judgments 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 but net of all rent actually received by Tenant from a reletting, if any; 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; provided, however, Landlord may only accelerate unpaid rent for each biennial period as it occurs during the remaining Term of the Lease; 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 entered reasonably avoided; plus Whenever Landlord shall have the right to reenter the Building, it shall have the right to remove all persons and property from the Building and either treat such property as abandoned or at Landlord’s option store it in a public warehouse or elsewhere at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. However Landlord hereby expressly agrees to subordinate in favor of a lender of Tenant any statutory and/or contractual lien it may have or seek to claim against Borrower Tenant’s personal property located at the Building. Attached hereto as Exhibit “I” is the form of Landlord’s Subordination and Consent (the “Landlord Consent”) which Landlord shall execute and deliver to Tenant upon request in favor of a lender of Tenant. Landlord agrees to reasonably consider modifications to the Landlord Consent requested by or on behalf of a secured party. Tenant waives the right to any notice to remove as may be specified in the Landlord and Tenant Act of Pennsylvania, Act of April 6, 1951, as amended, or any similar or successor provision of law. For the purposes of computing “the whole balance of rent and all those orders or judgments other sums payable hereunder for the entire balance of the term of this Lease,” “the unpaid rent and other sums which would have become due (had this Lease not been vacated, discharged, stayed, or bonded pending appeal within 30 days from their entry;
terminated) after termination until the date of the judgment” and “the unpaid rent and other sums which would have become due (jhad this Lease not been terminated) The issuance for the balance of a writ the term after the date of levy, distraint, execution, attachment, garnishment, or similar legal process (whether or not pursuant to a final judgment) against Borrower ,” as such quoted or any guarantor similar phrases are used in this Article 21, the amounts of additional rents which would have been due per year under this Note Lease shall be such amounts as Landlord shall reasonably estimate to be the per annum rates of additional rent for the calendar year during which this Lease was terminated or during which rent was accelerated, increasing annually on the first day of each calendar year thereafter at the rate of four percent (4%) per annum compounded. The parties recognize that no adequate remedy at law may exist for a breach of Articles 6, 7 and 10 hereof. Accordingly, Landlord may obtain specific performance of any provision of their respective property Articles 6, 7 and 10 hereof. Neither such right nor its exercise shall limit any other remedies which Landlord may have against Tenant for a breach of such Articles, including, without limitation, all remedies available under this Article 21. The reference herein to specific performance in connection with a claim Articles 6, 7 and 10 shall not preclude the availability of specific performance, in any appropriate case, for the payment breach or threatened breach of money or damages 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 default on behalf of Tenant, and Tenant shall reimburse Landlord upon demand for all costs incurred by Landlord in an amount exceeding $50,000;
(k) The sequestration or assumption 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 custody by a court having jurisdiction of all or a substantial part any of the property of Borrower or any guarantor of this Note, unless the custody or sequestration is terminated within 30 days after it is effective;
(l) An attachment after judgment occurs on all or a substantial part of the property of Borrower or any guarantor of this Note, unless the resulting lien is discharged, or execution on the lien is stayed, within 15 days after it is issued or perfected;
(m) A revocation or attempted revocation of any guaranty of this Note;
(n) The violation of any law, or any act or omission, by Borrower or any guarantor of this Note that results in the imposition of a lien by operation of law on any of its property that is not discharged within 30 days after it attaches, unless the lien relates foregoing rights granted to a claim for payment of money or damages in an amount less than $50,000;
(o) A sale or transfer or all or a majority of the assets (measured by fair value) or the outstanding voting common stock of Borrower pursuant to a sale, lease, merger, spin-off, foreclosure, dissolution, bankruptcy, liquidation, consolidation, tender offer, share exchange, reorganization, recapitalization, or other transaction; or
(p) A breach or default by Borrower or any guarantor of this Note of any lease, contract, mortgage, agreement, instrument, promissory note, or other obligation or commitment to which it is a party or with respect to which it is otherwise liable that causes, with or without notice to Borrower or the guarantor, acceleration of the date when any liability, obligation, or indebtedness in the amount of $50,000 or more becomes due and payable. If a “Default” occurs, the entire unpaid principal amount of this Note will become immediately due and payable without further demand or notice or presentment by the holder of this Note, and the holder of this Note may proceed to protect his rights in the manner provided by applicable law. The rights, remedies, powers, and privileges provided to Lender are cumulative and not exclusive of any rights, remedies, powers, and privileges provided by law.Landlord:
Appears in 1 contract
Sources: Lease Agreement (MEDecision, Inc.)
Defaults Remedies. The occurrence of one or more If any of the following events will constitute a “Default” under this Noteshall occur:
(a) The nonpayment Tenant does not pay in full when due any and all installments of rent or any interest other charge or principal under this Note when due, payment whether at maturity, by acceleration, or otherwisenot herein included as rent;
(b) The filing by Borrower of a petition seeking relief for Borrower under Tenant violates or fails to perform or comply with any bankruptcycovenant, insolvency, agreement or debtor relief lawcondition herein contained ;
(c) The filing by An involuntary case under the federal bankruptcy law as now or hereafter constituted is commenced against Tenant or any creditor guarantor or surety of Borrower 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 or any substantial part of Tenant's or a Guarantor's property, or seeking the winding-up or liquidation of Tenant's or a Guarantor's affairs and such involuntary case or petition is not dismissed within sixty (60) days after the filing thereof, or 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 of Borrower that is not dismissed or discharged within 60 days from the date of filing the petition;
(d) The entry of a judgment against Borrower for the payment of money in an amount exceeding U.S. $50,000 that is not paid, stayedother similar law, or discharged within consents to the time allowed appointment of or taking possession by law for filing a notice receiver or liquidator or assignee, trustee, custodian, sequestrator (or other similar official) of appeal Tenant or a Guarantor or of the judgment;
(e) Borrower (i) 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 its creditors, (ii) creditors or admits in writing its inability to pay its debts generally as they mature, (iii) seeks, consents, become due or acquiesces to the appointment of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, or (iv) suffers the appointment, without its consent or acquiescence, of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, unless the appointment is vacated within 60 days after it becomes effective;
(f) Any representation or warranty made by Borrower in this Note is incorrect in any material respect;
(g) Borrower fails to observe generally pay its debts as they become due or perform if Tenant is levied upon and is about to be sold out upon the Premises by any covenantsheriff, condition▇▇▇▇▇▇▇▇ or constable or if Tenant or its stockholders or Board of Directors or any committee thereof takes any action in contemplation, preparation or agreement contained in this Note furtherance of or for any of the Credit Documents and the failure continues for 30 days after written notice to Borrower;
(h) Borrower fails to pay when due any of its indebtedness (other than debt arising under this Note but including any other liability that it owes to Lender) foregoing, or, if Tenant or any interest Guarantor is a corporation and is dissolved or premium thereon when due (whether by scheduled maturityliquidated. Then, accelerationand in any such event, demand, or otherwise) and at the failure continues after the applicable grace period, if any, specified in the agreement or instrument relating to the indebtedness;sole option of Landlord,
(i) One The whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease, herein reserved or more orders agreed to be paid by Tenant, or judgments 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 a rate per year two percent (2%) above the prime rate (the "Default Rate"); plus
(B) the present value (as discounted at the rate of seven percent per annum) at the time of judgment of the amount by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment exceeds the amount of loss of such rental and other sums Tenant proves could have been entered against Borrower reasonably avoided; plus
(C) the amount (as discounted at the rate of seven percent per annum) by which the unpaid rent and all those orders or judgments other sums which would have become due (had this Lease not been vacated, discharged, stayed, or bonded pending appeal within 30 days from their entry;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
(jD) The issuance any other reasonable amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which in the ordinary course would be likely to result therefrom including, without limitation, the cost of repairing the Premises and reasonable attorneys fees; plus
(iii) Landlord may terminate Tenant's right of possession and may reenter and repossess the Premises by legal proceedings, force or otherwise, without terminating this Lease. After reentry or retaking or recovering of the Premises, whether by termination of this Lease or not, Landlord may, but shall be under no obligation to, make such alterations and repairs, as Landlord may deem then necessary or advisable or relet the Premises or any part or parts thereof, either in Landlord's name or otherwise, for a writ term or terms which may at Landlord's option be less than or exceed the period which otherwise would have constituted the balance of levy, distraint, execution, attachment, garnishment, the term of this Lease and at market rent or similar legal process (rents and upon such other reasonable terms and conditions as may seem advisable and to such person or persons as may in Landlord's reasonable discretion seem best; and whether or not pursuant to a final judgment) against Borrower the Premises are relet, Tenant shall be liable for any loss, for such period as is or any guarantor would have been the balance of the term of this Note Lease, of rent and all other sums payable under this Lease, plus the reasonable cost and expenses of reletting and of redecorating, remodeling or any of their respective property in connection with a claim making repairs and alterations to the Premises for the payment purpose of money or damages in an amount exceeding $50,000;
(k) The sequestration or assumption of custody by a court having jurisdiction of all or a substantial part of the property of Borrower or any guarantor of this Notereletting, unless the custody or sequestration is terminated within 30 days after it is effective;
(l) An attachment after judgment occurs on all or a substantial part of the property of Borrower or any guarantor of this Note, unless the resulting lien is discharged, or execution on the lien is stayed, within 15 days after it is issued or perfected;
(m) A revocation or attempted revocation of any guaranty of this Note;
(n) The violation of any law, or any act or omission, by Borrower or any guarantor of this Note that results in the imposition of a lien by operation of law on any of its property that is not discharged within 30 days after it attaches, unless the lien relates to a claim for payment of money or damages in an amount less than $50,000;
(o) A sale or transfer or all or a majority of the assets (measured by fair value) or the outstanding voting common stock of Borrower pursuant to a sale, lease, merger, spin-off, foreclosure, dissolution, bankruptcy, liquidation, consolidation, tender offer, share exchange, reorganization, recapitalization, or other transaction; or
(p) A breach or default by Borrower or any guarantor of this Note of any lease, contract, mortgage, agreement, instrument, promissory note, or other obligation or commitment to which it is a party or with respect to which it is otherwise liable that causes, with or without notice to Borrower or the guarantor, acceleration of the date when any liability, obligation, or indebtedness in the amount of $50,000 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 more becomes other sums to be paid by Tenant to Landlord be reduced by, failure to relet the Premises. Tenant shall not be entitled to any rents or other sums received by Landlord in excess of those provided for in this Lease. Tenant agrees that Landlord may file suit to recover any rent and other sums falling due under the terms of this Article 20 from time to time and payablethat 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. If Notwithstanding any reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for Tenant's previous breach. Whenever Landlord shall have the right to reenter the Premises, it shall have the right to remove all persons and property from the Premises and either treat such property as abandoned or at Landlord's option, store it in a “Default” occurspublic warehouse or elsewhere at the reasonable cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. For the purposes of computing "the whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease," "the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment" and "the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment," as such quoted or any similar phrases are used in this Article 19, the entire unpaid principal amount of additional rent which would have been due per year under this Note will become immediately due and payable without further demand Lease shall be such amount as Landlord shall reasonably estimate (based on the history of such expenses during Tenant's occupancy) to be the per annum rate of additional rent for the calendar year during which this Lease was terminated or notice or presentment by during which rent was accelerated, increasing annually on the holder first day of this Note, and each calendar year thereafter at the holder rate of this Note may proceed to protect his rights in the manner provided by applicable law. The rights, remedies, powers, and privileges provided to Lender are cumulative and not exclusive of any rights, remedies, powers, and privileges provided by law.seven percent (7%) per annum
Appears in 1 contract
Sources: Lease Agreement (Animas Corp)
Defaults Remedies. 8.1 The occurrence following shall constitute events of one or more default ("Events of the following events will constitute a “Default” under this Note") hereunder:
(a) The nonpayment of Lessee fails to make any interest or principal under this Note payments to Lessor when due, whether at maturity, by acceleration, or otherwisedue hereunder;
(b) The filing by Borrower any representation or warranty of a petition seeking relief for Borrower under Lessee contained herein or in any bankruptcy, insolvency, document furnished to Lessor in connection herewith is incorrect or debtor relief lawmisleading in any material respect when made;
(c) The filing by any creditor of Borrower of a petition seeking the involuntary bankruptcy or insolvency of Borrower that is not dismissed or discharged within 60 days from the date of filing the petition;
(d) The entry of a judgment against Borrower for the payment of money in an amount exceeding U.S. $50,000 that is not paid, stayed, or discharged within the time allowed by law for filing a notice of appeal of the judgment;
(e) Borrower (i) makes a general assignment for the benefit of its creditors, (ii) admits in writing its inability to pay its debts generally as they mature, (iii) seeks, consents, or acquiesces to the appointment of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, or (iv) suffers the appointment, without its consent or acquiescence, of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, unless the appointment is vacated within 60 days after it becomes effective;
(f) Any representation or warranty made by Borrower in this Note is incorrect in any material respect;
(g) Borrower Lessee fails to observe or perform any other covenant, condition, agreement or agreement contained in this Note warranty made by Lessee hereunder or under any of the Credit Documents document delivered pursuant hereto and the such failure continues for 30 days after written notice thereof to BorrowerLessee;
(d) any default occurs under any other agreement for borrowing money or receiving credit under which Lessee or any guarantor or general partner of Lessee may be obligated as borrower, lessee or guarantor, if such default (i) consists of the failure to pay any indebtedness when due or perform any other obligation thereunder and (ii) gives the holder of the indebtedness the right to accelerate the indebtedness;
(e) Lessee, any guarantor of this Lease or any general partner of Lessee makes an assignment for the benefit of creditors or files any petition or action under any bankruptcy, reorganization, insolvency or moratorium law, or any other law or laws for the relief of, or relating to, debtors;
(f) any guarantor of this Lease breaches or fails to perform any covenant in its guaranty, or any letter of credit required by this Lease expires or terminates without Lessor's consent, or Lessor receives notice that the letter of credit will not be renewed in accordance with its terms;
(g) an involuntary petition is filed under any bankruptcy statute against Lessee, any guarantor of this Lease or any general partner of Lessee, or any receiver, trustee, custodian or similar official is appointed to take possession of the properties of Lessee, any guarantor of this Lease or any general partner of Lessee, unless such petition or appointment is set aside or withdrawn or ceases to be in effect within 45 days from the date of the filing or appointment;
(h) Borrower fails to pay when due Lessee, any guarantor of its indebtedness this Lease or any general partner of Lessee liquidates, dissolves, dies or enters into any partnership, joint venture (other than debt arising under this Note but including any in its ordinary course of business), consolidation, merger or other liability that it owes to Lender) or any interest or premium thereon when due (whether by scheduled maturity, acceleration, demandcombination, or otherwise) and sells, leases or disposes of a substantial portion of its business or assets without the failure continues after the applicable grace period, if any, specified in the agreement or instrument relating to the indebtednessprior written consent of Lessor;
(i) One Any lawsuit or lawsuits are filed on behalf of one or more orders trade creditors against the Borrower in an aggregate amount of Five Million Dollars ($5,000,000) or judgments have been entered against Borrower and all those orders or judgments have not been vacated, discharged, stayed, or bonded pending appeal within 30 days from their entrymore in excess of any insurance coverage;
(j) The issuance of a writ of levy, distraint, execution, attachment, garnishmentAny judgment or arbitration awards are entered against the Lessee, or similar legal process (whether the Lessee enters into any settlement agreements with respect to any litigation or not pursuant to a final judgment) against Borrower or any guarantor of this Note or any of their respective property in connection with a claim for the payment of money or damages arbitration, in an aggregate amount exceeding of One Million Dollars ($50,0001,000,000) or more in excess of any insurance coverage;
(k) The sequestration or assumption Any Governmental Authority takes action that the Lessor believes cause a Material Adverse Effect. "Material Adverse Affect" is defined in that certain Bank Loan Agreement dated as of custody by a court having jurisdiction _______ between Lessee and Bank of all or a substantial part of the property of Borrower or any guarantor of this Note, unless the custody or sequestration is terminated within 30 days after it is effective;
(l) An attachment after judgment occurs on all or a substantial part of the property of Borrower or any guarantor of this Note, unless the resulting lien is discharged, or execution on the lien is stayed, within 15 days after it is issued or perfected;
(m) A revocation or attempted revocation of any guaranty of this Note;
(n) The violation of any law, or any act or omission, by Borrower or any guarantor of this Note that results in the imposition of a lien by operation of law on any of its property that is not discharged within 30 days after it attaches, unless the lien relates to a claim for payment of money or damages in an amount less than $50,000;
(o) A sale or transfer or all or a majority of the assets (measured by fair value) or the outstanding voting common stock of Borrower pursuant to a sale, lease, merger, spin-off, foreclosure, dissolution, bankruptcy, liquidation, consolidation, tender offer, share exchange, reorganization, recapitalization, or other transactionAmerica NT&SA; or
(p) A breach or default by Borrower or any guarantor of this Note of any lease, contract, mortgage, agreement, instrument, promissory note, or other obligation or commitment to which it is a party or with respect to which it is otherwise liable that causes, with or without notice to Borrower or the guarantor, acceleration of the date when any liability, obligation, or indebtedness in the amount of $50,000 or more becomes due and payable. If a “Default” occurs, the entire unpaid principal amount of this Note will become immediately due and payable without further demand or notice or presentment by the holder of this Note, and the holder of this Note may proceed to protect his rights in the manner provided by applicable law. The rights, remedies, powers, and privileges provided to Lender are cumulative and not exclusive of any rights, remedies, powers, and privileges provided by law.
Appears in 1 contract
Defaults Remedies. The occurrence of one or more If any of the following events will constitute a shall occur (each an “Event of Default” under this Note:”):
(a) The nonpayment Tenant does not pay in full when due any and all installments of rent (whether Fixed Rent or additional rent) or any interest other charge or principal under this Note when duepayment whether or not herein included as rent, whether at maturityand such failure to pay continues for ten (10) days after written notice of the failure from Landlord to Tenant, by accelerationprovided, however, in no event shall Landlord be required to give such a notice concerning the same type of recurring installment or otherwisepayment more than twice in any calendar year;
(b) The filing by Borrower Tenant violates or fails to perform or comply with any covenant, agreement or condition herein contained and such violation or failure continues for thirty (30) days after written notice of a petition seeking relief for Borrower under any bankruptcy, insolvencythe violation or failure from Landlord to Tenant, or debtor relief lawif the required cure for the violation or failure cannot be completed within thirty (30) days, if Tenant fails to commence to cure the failure within thirty (30) days and/or fails to diligently and continuously attempt to complete the cure as soon as reasonably possible thereafter provided, however, in no event shall such initial thirty (30) day period be extended more than an additional thirty (30) days;
(c) The filing by An involuntary case under the federal bankruptcy law as now or hereafter constituted is commenced against Tenant, or under any creditor of Borrower of other applicable federal or state bankruptcy, insolvency, reorganization, or other similar law, or there is filed against Tenant a petition seeking the appointment of a receiver, liquidator or assignee, custodian, trustee, sequestrator (or similar official) of Tenant of any substantial part of Tenant’s property, or seeking the winding-up or liquidation of Tenant’s affairs and such involuntary case or petition is not dismissed within sixty (60) days after the filing thereof, of if Tenant 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 of Borrower that is not dismissed or discharged within 60 days from the date of filing the petition;
(d) The entry of a judgment against Borrower for the payment of money in an amount exceeding U.S. $50,000 that is not paid, stayedother similar law, or discharged within consents to the time allowed appointment of or taking possession by law for filing a notice receiver or liquidator or assignee, trustee, custodian, sequestrator (or other similar official) of appeal Tenant of the judgment;
(e) Borrower (i) any substantial part of Tenant’s property, or if Tenant makes a general any assignment for the benefit of its creditors, (ii) creditors or admits in writing its inability to pay its debts generally as they mature, (iii) seeks, consents, become due or acquiesces to the appointment of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, or (iv) suffers the appointment, without its consent or acquiescence, of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, unless the appointment is vacated within 60 days after it becomes effective;
(f) Any representation or warranty made by Borrower in this Note is incorrect in any material respect;
(g) Borrower fails to observe generally pay its debts as they become due or perform if Tenant is levied upon and is about to be sold out upon the Building by any covenantsheriff, condition▇▇▇▇▇▇▇▇ or constable or Tenant or its stockholders or Board of Directors or any committee thereof takes any action in contemplation, preparation or agreement contained in this Note furtherance of or for any of the Credit Documents and the failure continues for 30 days after written notice to Borrower;
(h) Borrower fails to pay when due any of its indebtedness (other than debt arising under this Note but including any other liability that it owes to Lender) or any interest or premium thereon when due (whether by scheduled maturityforegoing, acceleration, demand, or otherwise) and the failure continues after the applicable grace periodor, if anyTenant is a corporation and is dissolved or liquidated, specified in Then, and upon the agreement or instrument relating to occurrence of an Event of Default, at the indebtedness;sole option of Landlord,
(i) One or more orders or judgments have been entered against Borrower The whole balance of rent and all those orders or judgments have not been vacated, discharged, stayed, or bonded pending appeal within 30 days from their entry;
(j) The issuance of a writ of levy, distraint, execution, attachment, garnishment, or similar legal process (whether or not pursuant to a final judgment) against Borrower or any guarantor of this Note or any of their respective property in connection with a claim other sums payable hereunder for the payment of money or damages in an amount exceeding $50,000;
(k) The sequestration or assumption of custody by a court having jurisdiction of all or a substantial part entire balance of the property of Borrower Term but accelerated and thus due and payable only on a biennial basis, herein reserved or any guarantor of this Note, unless the custody or sequestration is terminated within 30 days after it is effective;
(l) An attachment after judgment occurs on all or a substantial part of the property of Borrower or any guarantor of this Note, unless the resulting lien is discharged, or execution on the lien is stayed, within 15 days after it is issued or perfected;
(m) A revocation or attempted revocation of any guaranty of this Note;
(n) The violation of any lawagreed to be paid by Tenant, or any act or omissionpart of such rent, charges and other sums, shall be taken to be due and payable from Tenant and in arrears as if by Borrower or any guarantor the terms of this Note Lease said balance of rent, charges and other sums and expenses were on that results date payable in the imposition advance but net of all rent actually received by Tenant from a lien by operation of law on any of its property that is not discharged within 30 days after it attachesreletting, unless the lien relates to a claim for payment of money or damages in an amount less than $50,000;if any; and/or
(oii) A sale or transfer or all or 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 majority judgment for damages equal to the sum of the assets (measured by fair value) or the outstanding voting common stock of Borrower pursuant to a sale, lease, merger, spin-off, foreclosure, dissolution, bankruptcy, liquidation, consolidation, tender offer, share exchange, reorganization, recapitalization, or other transaction; orfollowing:
(pA) A breach or default by Borrower or any guarantor the unpaid rent and other sums which became due up to the time of this Note of any lease, contract, mortgage, agreement, instrument, promissory note, or such termination plus interest from the dates such rent and other obligation or commitment sums were due to which it is a party or with respect to which it is otherwise liable that causes, with or without notice to Borrower or the guarantor, acceleration date of the judgment at the Lease Interest Rate; provided, however, Landlord may only accelerate unpaid rent for each biennial period as it occurs during the remaining Term of the Lease; 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 when any liability, obligation, or indebtedness in of the judgment exceeds the amount of $50,000 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 more becomes due and payable. If a “Default” occurswhich in the ordinary course would be likely to result therefrom including, without limitation, the entire unpaid principal amount cost of this Note will become immediately due repairing the Building and payable without further demand reasonable attorneys fees; plus
(E) at Landlord’s election, such other amounts in addition to or notice or presentment by in lieu of the holder of this Note, and the holder of this Note foregoing as may proceed to protect his rights in the manner provided be permitted by applicable law. As used in the foregoing clause (B), the “present value at the time of judgment” shall be computed by adding to the rent past due or which would have become due interest at the Lease Interest Rate from the dates such rent was or would have become due to the date of the judgment; and/or
(iii) Landlord may terminate Tenant’s right of possession and may reenter and repossess the Building by legal proceedings, force or otherwise, without terminating this Lease. After reentry or retaking or recovering of the Building, 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 Building 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 Building is relet, Tenant shall be liable for any loss, for such period as is or would have been the balance of the term of the Lease, of rent and all other sums payable under this lease, plus the cost and expenses of reletting and of redecorating, remodeling or making repairs and alterations to the Building 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. However, Landlord shall utilize commercially reasonable efforts to mitigate its damages upon the occurrence of an Event of Default. Tenant shall not be entitled to any rents or other sums received by Landlord in excess of those provided for in this Lease. Tenant agrees that Landlord may file suit to recover any rent and other sums falling due under the terms of this Article from time to time and that no suit or recovery of any amount due hereunder to Landlord shall be any defense to any subsequent action brought for any other amount due hereunder to Landlord. Tenant, for Tenant and Tenant’s successors and assigns, hereby irrevocably constitutes and appoints Landlord, Tenant’s and their agent to collect the rents due or to become due under all subleases of the Building or any parts thereof without in any way affecting Tenant’s obligation to pay any unpaid balance of rent or any other sum due or to become due hereunder. Notwithstanding any reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for Tenant’s previous breach. Whenever Landlord shall have the right to reenter the Building, it shall have the right to remove all persons and property from the Building and either treat such property as abandoned or at Landlord’s option store it in a public warehouse or elsewhere at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. However Landlord hereby expressly agrees to subordinate in favor of a lender of Tenant any statutory and/or contractual lien it may have or seek to claim against Tenant’s personal property located at the Building except for the subordinated security interest in the Devon Square FF&E (as hereinafter defined). Attached hereto as Exhibit “I” is the form of Landlord’s Subordination and Consent (the “Landlord Consent”) which Landlord shall execute and deliver to Tenant upon request in favor of a lender of Tenant. Landlord agrees to reasonably consider modifications to the Landlord Consent requested by or on behalf of a secured party. Tenant waives the right to any notice to remove as may be specified in the Landlord and Tenant Act of Pennsylvania, Act of April 6, 1951, as amended, or any similar or successor provision of law. For the purposes of computing “the whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease,” “the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment” and “the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment,” as such quoted or any similar phrases are used in this Article 21, the amounts of additional rents which would have been due per year under this Lease shall be such amounts as Landlord shall reasonably estimate to be the per annum rates of additional rent for the calendar year during which this Lease was terminated or during which rent was accelerated, increasing annually on the first day of each calendar year thereafter at the rate of four percent (4%) per annum compounded. The rightsparties recognize that no adequate remedy at law may exist for a breach of Articles 6, remedies7 and 10 hereof. Accordingly, powersLandlord may obtain specific performance of any provision of Articles 6, 7 and 10 hereof. Neither such right nor its exercise shall limit any other remedies which Landlord may have against Tenant for a breach of such Articles, including, without limitation, all remedies available under this Article 21. The reference herein to specific performance in connection with Articles 6, 7 and 10 shall not preclude the availability of specific performance, in any appropriate case, for the breach or threatened breach of any other provision of this Lease. In addition to other remedies available to Landlord herein, Landlord may (but shall not be obligated to do so), cure any default on behalf of Tenant, and privileges provided to Lender are cumulative 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. Also in addition to, and not exclusive in lieu of any rights, remedies, powers, and privileges provided by law.of the foregoing rights granted to Landlord:
Appears in 1 contract
Sources: Lease Agreement (MEDecision, Inc.)
Defaults Remedies. 8.1 The occurrence following shall constitute events of one or more default ("Events of the following events will constitute a “Default” under this Note") hereunder:
(a) The nonpayment of Lessee fails to make any interest or principal under this Note payments to Lessor when due, whether at maturity, by acceleration, or otherwisedue hereunder;
(b) The filing by Borrower any representation or warranty of a petition seeking relief for Borrower under Lessee contained herein or in any bankruptcy, insolvency, document furnished to Lessor in connection herewith is incorrect or debtor relief lawmisleading in any material respect when made;
(c) The filing Lessee fails to observe or perform any other covenant, agreement or warranty made by Lessee hereunder or under any creditor document delivered pursuant hereto and such failure continues for 10 days after written notice thereof to Lessee;
(d) any default occurs under any other agreement for borrowing money or receiving credit under which Lessee or any guarantor or general partner of Borrower Lessee may be obligated as borrower, lessee or guarantor, if such default (i) consists of a the failure to pay any indebtedness when due or perform any other obligation thereunder and (ii) gives the holder of the indebtedness the right to accelerate the indebtedness;
(e) Lessee, any guarantor of this Lease or any general partner of Lessee makes an assignment for the benefit of creditors or files any petition seeking or action under any bankruptcy, reorganization, insolvency or moratorium law, or any other law or laws for the relief of, or relating to, debtors;
(f) any guarantor of this Lease breaches or fails to perform any covenant in its guaranty, required by this Lease expires or terminates without Lessor's consent;
(g) an involuntary petition is filed under any bankruptcy statute against Lessee, any guarantor of this Lease or insolvency any general partner of Borrower that Lessee, or any receiver, trustee, custodian or similar official is not dismissed appointed to take possession of the properties of Lessee, any guarantor of this Lease or discharged any general partner of Lessee, unless such petition or appointment is set aside or withdrawn or ceases to be in effect within 60 days from the date of the filing the petition;or appointment; or
(dh) The entry Lessee, any guarantor of this Lease liquidates, dissolves, or sells, leases or disposes of a judgment against Borrower substantial portion of its business or assets.
8.2 If any Event of Default occurs, Lessor, at its option, may:
(a) proceed by appropriate court action or actions either at law or in equity, to enforce performance by Lessee of the applicable covenants of this Lease or to recover damages for the breach thereof; or
(b) by notice in writing to Lessee terminate this Lease, whereupon all rights of Lessee to retain possession of and use the Units shall terminate, but Lessee shall remain liable as hereinafter provided, and Lessor may, at its option, do any one or more of the following: (i) declare the aggregate Balance Due with respect to the Units and all Other Charges immediately due and payable and recover any damages and expenses in addition thereto Lessor sustains by reason of the breach of any covenant, representation or warranty contained in this Lease other than for the payment of money in an amount exceeding U.S. $50,000 that is not paid, stayed, or discharged within the time allowed by law for filing a notice of appeal of the judgment;
(e) Borrower (i) makes a general assignment for the benefit of its creditors, rent; (ii) admits in writing its inability enforce the security interest given hereunder pursuant to pay its debts generally as they mature, the Uniform Commercial Code or any other law; (iii) seeks, consents, or acquiesces to enter upon the appointment premises where any of a trustee, receiver, liquidator, or fiscal agent for the Units may be and take possession of all or a substantial part any of its property, or such Units; and (iv) suffers require Lessee to return the appointmentUnits as provided in Section 9.
8.3 Lessor shall have any and all rights given to a secured party by law, without its consent and may, but is not required to, sell the Units in one or acquiescencemore sales. Lessor may purchase the Units at such sale. Lessee acknowledges that sales for cash or on credit to a wholesaler, retailer or user of a trustee, receiver, liquidatorthe Units, or fiscal agent at public or private auction, are all commercially reasonable. The proceeds of such sale shall be applied in the following order: First, to the reasonable expenses of retaking, ----- holding, preparing for sale and selling, including the allocated time charges, costs and expenses of internal counsel for Lessor and any other attorneys' fees and expenses incurred by Lessor; Second, to the amounts, except those specified ------ below, which under the terms of this Lease are due or have accrued; Third, to ----- late charges; and Fourth, to the aggregate Balance Due. Any surplus shall be ------ paid to the person or persons entitled thereto. If there is a deficiency, Lessee will promptly pay the same to Lessor.
8.4 Lessee agrees to pay all reasonable allocated time charges, costs and expenses of internal counsel for Lessor and any other attorneys' fees, expenses or a substantial part out-of-pocket costs incurred by Lessor in enforcing this Lease.
8.5 The remedies herein provided in favor of Lessor shall not be deemed exclusive, but shall be cumulative, and shall be in addition to all other remedies in its property, unless the appointment is vacated within 60 days after it becomes effective;favor existing at law or in equity.
(f) Any representation or warranty made by Borrower in this Note is incorrect in any material respect;
(g) Borrower 8.6 If Lessee fails to observe or perform any covenant, condition, or agreement contained in this Note or any of the Credit Documents and the failure continues for 30 days after written notice to Borrower;
(h) Borrower fails to pay when due any of its indebtedness (other than debt arising under this Note but including any other liability that it owes to Lender) or any interest or premium thereon when due (whether agreements contained herein, Lessor may perform such agreement, and Lessee shall pay the expenses incurred by scheduled maturity, acceleration, demand, or otherwise) and the failure continues after the applicable grace period, if any, specified in the agreement or instrument relating to the indebtedness;
(i) One or more orders or judgments have been entered against Borrower and all those orders or judgments have not been vacated, discharged, stayed, or bonded pending appeal within 30 days from their entry;
(j) The issuance of a writ of levy, distraint, execution, attachment, garnishment, or similar legal process (whether or not pursuant to a final judgment) against Borrower or any guarantor of this Note or any of their respective property Lessor in connection with a claim for the payment of money or damages in an amount exceeding $50,000;
(k) The sequestration or assumption of custody by a court having jurisdiction of all or a substantial part of the property of Borrower or any guarantor of this Note, unless the custody or sequestration is terminated within 30 days after it is effective;
(l) An attachment after judgment occurs on all or a substantial part of the property of Borrower or any guarantor of this Note, unless the resulting lien is discharged, or execution on the lien is stayed, within 15 days after it is issued or perfected;
(m) A revocation or attempted revocation of any guaranty of this Note;
(n) The violation of any law, or any act or omission, by Borrower or any guarantor of this Note that results in the imposition of a lien by operation of law on any of its property that is not discharged within 30 days after it attaches, unless the lien relates to a claim for payment of money or damages in an amount less than $50,000;
(o) A sale or transfer or all or a majority of the assets (measured by fair value) or the outstanding voting common stock of Borrower pursuant to a sale, lease, merger, spin-off, foreclosure, dissolution, bankruptcy, liquidation, consolidation, tender offer, share exchange, reorganization, recapitalization, or other transaction; or
(p) A breach or default by Borrower or any guarantor of this Note of any lease, contract, mortgage, agreement, instrument, promissory note, or other obligation or commitment to which it is a party or with respect to which it is otherwise liable that causes, with or without notice to Borrower or the guarantor, acceleration of the date when any liability, obligation, or indebtedness in the amount of $50,000 or more becomes due and payable. If a “Default” occurs, the entire unpaid principal amount of this Note will become immediately due and payable without further demand or notice or presentment by the holder of this Note, and the holder of this Note may proceed to protect his rights in the manner provided by applicable law. The rights, remedies, powers, and privileges provided to Lender are cumulative and not exclusive of any rights, remedies, powers, and privileges provided by lawsuch performance upon demand.
Appears in 1 contract
Sources: Machinery and Equipment Pledge Agreement (Tarrant Apparel Group)
Defaults Remedies. The occurrence of one or more If any of the following events will constitute a “Default” under this Noteshall occur:
(a) The nonpayment Any payment or any part thereof to be made by Tenant to Landlord pursuant to the terms of this Lease shall have become overdue for a period in excess of thirty (30) days, such grace period limited to no more than two (2) occurrences in any interest or principal under this Note when due, whether at maturity, by acceleration, or otherwisetwelve (12) month period;
(b) The filing by Borrower Tenant violates or fails to perform or comply with any covenant, agreement or condition herein contained, and such failure continues for a period of a petition seeking relief for Borrower under any bankruptcy, insolvency, or debtor relief lawthirty (30) days after Landlord notifies Tenant of such failure;
(c) The filing by 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; or
(d) An involuntary case under the federal bankruptcy law as now or hereafter constituted is commenced against Tenant or any creditor guarantor or surety of Borrower 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 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 of Borrower that is not dismissed or discharged within 60 days from the date of filing the petition;
(d) The entry of a judgment against Borrower for the payment of money in an amount exceeding U.S. $50,000 that is not paid, stayedother similar law, or discharged within consents to the time allowed appointment of or taking possession by law for filing a notice receiver or liquidator or assignee, trustee, custodian, sequestrator (or other similar official) of appeal Tenant or a Guarantor of the judgment;
(e) Borrower (i) 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 its creditors, (ii) creditors or admits in writing its inability to pay its debts generally as they mature, (iii) seeks, consents, become due or acquiesces to the appointment of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, or (iv) suffers the appointment, without its consent or acquiescence, of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, unless the appointment is vacated within 60 days after it becomes effective;
(f) Any representation or warranty made by Borrower in this Note is incorrect in any material respect;
(g) Borrower fails to observe generally pay its debts as they become due or perform if Tenant is levied upon and is about to be sold out upon the Premises by any covenantsheriff, condition▇▇▇▇▇▇▇▇ or constable or it Tenant or its stockholders or Board of Directors or any committee thereof takes any action in contemplation, preparation or agreement contained in this Note furtherance of or for any of the Credit Documents and the failure continues for 30 days after written notice to Borrower;
(h) Borrower fails to pay when due any of its indebtedness (other than debt arising under this Note but including any other liability that it owes to Lender) foregoing, or, if Tenant or any interest Guarantor is a corporation and is dissolved or premium thereon when due (whether by scheduled maturityliquidated. Then, accelerationand in any such event, demand, or otherwise) and at the failure continues after the applicable grace period, if any, specified in the agreement or instrument relating to the indebtedness;sole option of Landlord,
(i) One or more orders or judgments have been entered against Borrower The then present value of the whole balance of rent and all those orders or judgments have not been vacated, discharged, stayed, or bonded pending appeal within 30 days from their entry;
(j) The issuance other sums payable hereunder for the entire balance of a writ of levy, distraint, execution, attachment, garnishment, or similar legal process (whether or not pursuant to a final judgment) against Borrower or any guarantor the term of this Note Lease, herein reserved or any of their respective property in connection with a claim for the payment of money or damages in an amount exceeding $50,000;
(k) The sequestration or assumption of custody agreed to be paid by a court having jurisdiction of all or a substantial part of the property of Borrower or any guarantor of this Note, unless the custody or sequestration is terminated within 30 days after it is effective;
(l) An attachment after judgment occurs on all or a substantial part of the property of Borrower or any guarantor of this Note, unless the resulting lien is discharged, or execution on the lien is stayed, within 15 days after it is issued or perfected;
(m) A revocation or attempted revocation of any guaranty of this Note;
(n) The violation of any lawTenant, or any act or omissionpart of such rent, charges and other sums, shall be taken to be due and payable from Tenant and in arrears as if by Borrower or any guarantor the terms of this Note Lease said balance of rent, charges and other sums and expenses were on that results date payable in the imposition of a lien by operation of law on any of its property that is not discharged within 30 days after it attaches, unless the lien relates to a claim for payment of money or damages in an amount less than $50,000;advance; and/or
(oii) A sale or transfer or all or 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 majority judgment for damages equal to the sum of the assets (measured by fair value) or the outstanding voting common stock of Borrower pursuant to a sale, lease, merger, spin-off, foreclosure, dissolution, bankruptcy, liquidation, consolidation, tender offer, share exchange, reorganization, recapitalization, or other transaction; orfollowing:
(pA) A breach or default by Borrower or any guarantor the unpaid rent and other sums which became due up to the time of this Note of any lease, contract, mortgage, agreement, instrument, promissory note, or such termination plus interest from the dates such rent and other obligation or commitment sums were due to which it is a party or with respect to which it is otherwise liable that causes, with or without notice to Borrower or the guarantor, acceleration 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 when any liability, obligation, or indebtedness in of the judgment exceeds the amount of $50,000 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 more becomes due and payable. If a “Default” occurswhich in the ordinary course would be likely to result therefrom including, without limitation, the entire unpaid principal amount cost of this Note will become immediately due repairing the Premises and payable without further demand reasonable attorneys fees; plus
(E) at Landlord's election, such other amounts in addition to or notice or presentment by in lieu of the holder of this Note, and the holder of this Note foregoing as may proceed to protect his rights in the manner provided be permitted by applicable law. As used in the foregoing clause (B), the "present value at the time of judgment" shall be computed by adding to the rent past due or which would have become due interest at the Lease Interest Rate from the dates such rent was or would have become due to the date of the judgment; and/or
(iii) Landlord may terminate Tenant's right of possession and may reenter and repossess the Premises by legal proceedings without terminating this Lease. After reentry or retaking or recovering of the Premises, whether by termination of this Lease or not, Landlord may, but shall be under no obligation to, make such alterations and repairs, as Landlord may deem then necessary or advisable and relet the Premises or any part or parts thereof, either in Landlord's name or otherwise, for a term or terms which may at Landlord's option be less than or exceed the period which otherwise would have constituted the balance of the term of this Lease and at such rent or rents and upon such other terms and conditions as in Landlord's sole discretion may seem advisable and to such person or persons as may in Landlord's sole discretion seem best; and whether or not the Premises are relet, Tenant shall be liable for any loss, for such period as is or would have been the balance of the term of the Lease, of rent and all other sums payable under this lease, plus the cost and expenses of reletting and of redecorating, remodeling or making repairs and alterations to the Premises for the purpose or reletting, the amount of such liability to be computed monthly and to be paid by Tenant to Landlord from time to time upon demand. Landlord shall in no event be liable for, nor shall any damages or other sums to be paid by Tenant to Landlord be reduced by, failure to relet the Premises or failure to collect the rent or other sums from any reletting. Tenant shall not be entitled to any rents or other sums received by Landlord in excess of those provided for in this Lease. Tenant agrees that Landlord may file suit to recover any rent and other sums falling due under the terms of this Article from time to time and that no suit or recovery of any amount due hereunder to Landlord shall be any defense to any subsequent action brought for any other amount due hereunder to Landlord. Tenant, for Tenant and Tenant's successors and assigns, hereby irrevocably constitutes and appoints Landlord, Tenant's and their agent to collect the rents due or to become due under all subleases of the Premises or any parts thereof without in any way affecting Tenant's obligation to pay any unpaid balance of rent or any other sum due or to become due hereunder. Notwithstanding any reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for Tenant's previous breach. Whenever Landlord shall have the right to reenter the Premises, it shall have the right to remove all persons and property from the Premises and either treat such property as abandoned or at Landlord's option store it in a public warehouse or elsewhere at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. Tenant waives the right to any notice to remove as may be specified in the Landlord and Tenant Act of Pennsylvania, Act of April 6, 1951, as amended, or any similar or successor provision of law. For the purposes of computing "the then present value of the whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease," "the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment" and "the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment," as such quoted or any similar phrases are used in this Article 21, the amounts of additional rents which would have been due per year under this Lease shall be such amounts as Landlord shall reasonably estimate to be the per annum rates of additional rent for the calendar year during which this Lease was terminated or during which rent was accelerated, increasing annually on the first day of each calendar year thereafter at the rate of seven percent per annum compounded. The rightsparties recognize that no adequate remedy at law may exist for a breach of Articles 6, remedies7 and 10 hereof. Accordingly, powersLandlord may obtain specific performance of any provision of Articles 6, 7 and 10 hereof. Neither such right nor its exercise shall limit any other remedies which Landlord may have against Tenant for a breach of such Articles, including, without limitation, all remedies available under this Article 21. The reference herein to specific performance in connection with Articles 6, 7 and 10 shall not preclude the availability of specific performance, in any appropriate case, for the breach or threatened breach of any other provision of this Lease. In addition to other remedies available to Landlord herein, Landlord may (but shall not be obligated to do so), cure any default on behalf of Tenant, and privileges provided to Lender are cumulative 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. Also in addition to, and not exclusive in lieu of any rights, remedies, powers, and privileges provided by law.of the foregoing rights granted to Landlord:
Appears in 1 contract
Sources: Lease Agreement (Traffic.com, Inc.)
Defaults Remedies. The occurrence of Section 14.01. If, during the Term, any one or more of the following events will constitute a “acts or occurrences (any one of such occurrences or acts being hereinafter called an Event of Default” under this Note) shall happen:
(aA) The nonpayment Tenant shall default in making any payment of Term Basic Rent or any interest or principal under this Note Additional Rent as and when duethe same shall become due and payable, whether at maturity, by acceleration, or otherwise;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
(bB) The filing by Borrower of a petition seeking relief for Borrower under any bankruptcy, insolvency, Tenant shall default in the performance or debtor relief law;
(c) The filing by any creditor of Borrower of a petition seeking the involuntary bankruptcy or insolvency of Borrower that is not dismissed or discharged within 60 days from the date of filing the petition;
(d) The entry of a judgment against Borrower for the payment of money in an amount exceeding U.S. $50,000 that is not paid, stayed, or discharged within the time allowed by law for filing a notice of appeal of the judgment;
(e) Borrower (i) makes a general assignment for the benefit of its creditors, (ii) admits in writing its inability to pay its debts generally as they mature, (iii) seeks, consents, or acquiesces to the appointment of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, or (iv) suffers the appointment, without its consent or acquiescence, of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, unless the appointment is vacated within 60 days after it becomes effective;
(f) Any representation or warranty made by Borrower in this Note is incorrect in any material respect;
(g) Borrower fails to observe or perform any covenant, condition, or agreement contained in this Note or if compliance with any of the Credit Documents 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 the failure continues such default shall continue for 30 a period of twenty (20) days after written notice thereof from the Landlord to Borrower;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
(hC) Borrower fails to pay when due any of its indebtedness (other than debt arising under this Note but including any other liability that it owes to Lender) or any interest or premium thereon when due (whether by scheduled maturity, acceleration, demand, or otherwise) and the failure continues after the applicable grace period, if any, specified in the agreement or instrument relating to the indebtedness;
(i) One or more orders or judgments have been entered against Borrower and all those orders or judgments have not been vacated, discharged, stayed, or bonded pending appeal within 30 days from their entry;
(j) The issuance of a writ of levy, distraint, execution, attachment, garnishment, or similar legal process (whether or not pursuant to a final judgment) against Borrower Tue Tenant or any guarantor of this Note 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 their respective property in connection with a claim for the payment of money any trustee, receiver, or damages in an amount exceeding $50,000;
(k) The sequestration or assumption of custody by a court having jurisdiction of all or a substantial part liquidator of the property of Borrower Tenant or any guarantor of this Note, unless Lease or of all or any substantial part of its properties or of all or any part of the custody or sequestration is terminated Demised Premises; or
(D) If within 30 sixty (60) days after it is effective;
the filing of an involuntary petition in bankruptcy against the Tenant 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 have been dismissed, or if, within sixty (l60) An attachment days after judgment occurs on 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 a substantial 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 Borrower or any guarantor of this Note, unless the resulting lien is dischargedTenant, or execution on of such guarantor by any governmental office or agency pursuant to statutory authority for the lien is stayed, within 15 days after it is issued dissolution or perfected;
(m) A revocation or attempted revocation of any guaranty of this Note;
(n) The violation of any law, or any act or omission, by Borrower or any guarantor of this Note that results in the imposition of a lien by operation of law on any of its property that is not discharged within 30 days after it attaches, unless the lien relates to a claim for payment of money or damages in an amount less than $50,000;
(o) A sale or transfer or all or a majority liquidation of the assets (measured by fair value) Tenant or the outstanding voting common stock of Borrower pursuant to a salesuch guarantor, lease, merger, spin-off, foreclosure, dissolution, bankruptcy, liquidation, consolidation, tender offer, share exchange, reorganization, recapitalization, such taking shall not have been vacated or other transactionstayed on appeal or otherwise; or
(pE) A breach 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 default 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 equity, by Borrower or any guarantor 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 Note 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 rights of the Tenant hereunder shall expire and terminate, 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 14.01, or as permitted by law, the Tenant shall peaceably quit and surrender the Demised Premises to 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 event neither the Tenant nor any person claiming tI~rougki or under the Tenant by virtue of any law or an order of any court shall be entitled to possession or to remain in possession of the Demised Premises, and the Landlord, at its option, shall forthwith, notwithstanding any other provision of this Lease, be 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, 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 14.02 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 shall pay to the 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 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 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 had not re-entered and resumed possession of the Demised Premises, deducting only the net amount of Term Basic Rent and Additional Rent, if any, which the Landlord shall actually receive (after deducting from the gross receipts the expenses, costs and payments of the 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 entitled to damages against the Tenant for breach of this lease, contractat any time (whether or not the Landlord shall have become entitled to or shall have received any damages as herinabove) Provided) in an amount equal to the excess if any, mortgageof the Term Basic Rent and Additional Rent which would be payable under this Lease at the date of the expiration of the Terri, agreementless (lie am▇▇▇▇ of Term Basic Rent and Additional Rent received by the Landlord upon any reletting, instrumentboth 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, promissory note, 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 obligation or commitment to which it is a party or with respect to which it is otherwise liable that causes, with or without notice to Borrower or the guarantor, acceleration of legal proceedings until the date when this Lease would have expired had there not been an Event of Default.
Section 14.04. The Tenant hereby waives all right of redemption to which the Tenant or any liabilityperson under it may be entitled by any law now or hereafter in force. In addition, obligation, or indebtedness in the amount event of $50,000 an Event of Default which results in the Landlord recovering possession of the Demised Premises, Landlord shall 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
Section 14.05. In the event of any breach or more becomes due threatened breach by Tenant of any of the agreements, terms, covenants or conditions contained in this Lease, Landlord shall be entitled to enjoin such breach or threatened breach and payableshall have the right to invoke arty right or remedy allowed at law or in equity or by statute or otherwise as though re-entry, summary dispossess proceedings, arid other remedies were not provided for in this Lease. During the pendency of any proceedings brought by Landlord to recover possession by reason of default, Tenant shall continue all money payments required to be made to Landlord, and Landlord may accept such 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 after the due date, such failure shall entitle Landlord, upon or at any time after such third (3rd) separate occasion, to pursue the remedies provided in this Article, said circumstances being hereby declared a “Default” occurs, the entire unpaid principal amount default no longer susceptible of this Note will become immediately due and payable without further demand being cured or notice or presentment removed by the holder of this Note, and the holder of this Note may proceed to protect his rights in the manner provided by applicable law. The rights, remedies, powers, and privileges provided to Lender are cumulative and not exclusive of any rights, remedies, powers, and privileges provided by lawTenant.
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Defaults Remedies. 8.1 The occurrence following shall constitute events of one or more default ("Events of the following events will constitute a “Default” under this Note") hereunder:
(a) The nonpayment of Lessee fails to make any interest or principal payments to Lessor when due under this Note when due, whether at maturity, by acceleration, or otherwiseLease;
(b) The filing by Borrower any representation or warranty of a petition seeking relief for Borrower under Lessee contained herein or in any bankruptcy, insolvency, document furnished to Lessor in connection herewith is incorrect or debtor relief lawmisleading in any material respect when made;
(c) The filing Lessee fails to observe or perform any other covenant, agreement or warranty made by Lessee hereunder or under any creditor document delivered pursuant hereto and such failure continues for 10 days after written notice thereof to Lessee;
(d) any default occurs under any other agreement for borrowing money or receiving credit under which Lessee or any guarantor or general partner of Borrower Lessee may be obligated as borrow, lessee or guarantor, if such default (i) consists of a the failure to pay any indebtness when due or perform any other obligation thereunder and (ii) gives the holder of the indebtedness the right to accelerate the indebtness;
(e) Lessee, any guarantor of this Lease or any general partner of Lessee makes an assignment for the benefit of creditors or files any petition seeking or action under any bankruptcy, reorganization, insolvency or moratorium law, or any other law or laws for the relief of, or relating to, debtors;
(f) any guarantor of this Lease breaches or fails to perform any covenant in its guaranty, or any letter of credit required by this Lease expires or terminates without Lessor's consent, or Lessor receives notice that the letter of credit will not be renewed in accordance with its terms;
(g) any involuntary petition is filed under any bankruptcy statute against Lessee, any guarantor of this Lease or insolvency any general partner of Borrower that Lessee, or any receiver, trustee, custodian or similar official is not dismissed appointed to take possession of the properties of Lessee, any guarantor of this Lease or discharged any general partner of Lessee, unless such petition or appointment is set aside or withdrawn or ceases to be in effect within 60 days from the date of the filing the petition;or appointment; or
(dh) The entry Lessee, any guarantor of this Lease or any general partner of Lessee liquidates, dissolves, dies or enters into any partnership, joint venture (other than in its ordinary course of business), consolidation, merger or other combination, or sells, leases or disposes of a judgment against Borrower substantial portion of its business assets.
8.2 If any Event of Default occurs, Lessor, at its option, may:
(a) proceed by appropriate court action or actions either at law or in equity, to enforce performance by Lessee of the applicable covenants of this Lease or to recover damages for the breach thereof; or
(b) by notice in writing to Lessee terminate this Lease, whereupon all rights of Lessee to retain possession of and use the Units shall terminate, but Lessee shall remain liable as hereinafter provided, and Lessor may, at its option, do any one or more of the following: (i) declare the aggregate Balance Due with respect to the Units and all Other Charges immediately due and payable and recover any damages and expenses in addition thereto Lessor sustains because of the breach of any covenant, representation or warranty contained in this Lease other than for the payment of money in an amount exceeding U.S. $50,000 that is not paid, stayed, or discharged within the time allowed by law for filing a notice of appeal of the judgment;
(e) Borrower (i) makes a general assignment for the benefit of its creditors, rent; (ii) admits in writing its inability enforce the security interest given hereunder pursuant to pay its debts generally as they mature, the Uniform Commercial Code or any other law; (iii) seeks, consents, or acquiesces to enter upon the appointment premises where any of a trustee, receiver, liquidator, or fiscal agent for the Units may be and take possession of all or a substantial part any of its property, or such Units; and (iv) suffers require Lessee to return the appointmentUnits as provided in Section 9.
8.3 Lessor shall have any and all rights given to a secured party by law, without its consent and may, but is not required to, sell the Units in one or acquiescencemore sales. Lessor may purchase the Units at such sale. Lessee acknowledges that sales for cash or on credit to a wholesaler, retailer or user of a trustee, receiver, liquidatorthe Units, or fiscal agent at public or private auction, are all commercially reasonable. The proceeds of such sale shall be applied in the following order: FIRST, to the reasonable expenses of retaking, holding, preparing for sale and selling, including the allocated time charges, costs and expenses of internal counsel for Lessor and any other attorneys' fees and expenses incurred by Lessor; SECOND, to the amounts, except those specified below, which under the terms of this Lease are due or have accrued; THIRD, to late charges; and FOURTH, to the aggregate Balance Due. Any surplus shall be paid to the person or persons entitled thereto. If there is a deficiency, Lessee will promptly pay the same to Lessor.
8.4 Lessee agrees to pay all allocated time charges, costs and expenses of internal counsel for Lessor and any other attorneys' fees, expenses or a substantial part out-of-pocket costs incurred by Lessor in enforcing this Lease.
8.5 The remedies herein provided in favor of Lessor shall not be deemed exclusive, but shall be cumulative, and shall be in addition to all other remedies in its property, unless the appointment is vacated within 60 days after it becomes effective;favor existing at law or in equity.
(f) Any representation or warranty made by Borrower in this Note is incorrect in any material respect;
(g) Borrower 8.6 If Lessee fails to observe or perform any covenant, condition, or agreement contained in this Note or any of the Credit Documents and the failure continues for 30 days after written notice to Borrower;
(h) Borrower fails to pay when due any of its indebtedness (other than debt arising under this Note but including any other liability that it owes to Lender) or any interest or premium thereon when due (whether agreements contained herein, Lessor may perform such agreement, and Lessee shall pay the expenses incurred by scheduled maturity, acceleration, demand, or otherwise) and the failure continues after the applicable grace period, if any, specified in the agreement or instrument relating to the indebtedness;
(i) One or more orders or judgments have been entered against Borrower and all those orders or judgments have not been vacated, discharged, stayed, or bonded pending appeal within 30 days from their entry;
(j) The issuance of a writ of levy, distraint, execution, attachment, garnishment, or similar legal process (whether or not pursuant to a final judgment) against Borrower or any guarantor of this Note or any of their respective property Lessor in connection with a claim for the payment of money or damages in an amount exceeding $50,000;
(k) The sequestration or assumption of custody by a court having jurisdiction of all or a substantial part of the property of Borrower or any guarantor of this Note, unless the custody or sequestration is terminated within 30 days after it is effective;
(l) An attachment after judgment occurs on all or a substantial part of the property of Borrower or any guarantor of this Note, unless the resulting lien is discharged, or execution on the lien is stayed, within 15 days after it is issued or perfected;
(m) A revocation or attempted revocation of any guaranty of this Note;
(n) The violation of any law, or any act or omission, by Borrower or any guarantor of this Note that results in the imposition of a lien by operation of law on any of its property that is not discharged within 30 days after it attaches, unless the lien relates to a claim for payment of money or damages in an amount less than $50,000;
(o) A sale or transfer or all or a majority of the assets (measured by fair value) or the outstanding voting common stock of Borrower pursuant to a sale, lease, merger, spin-off, foreclosure, dissolution, bankruptcy, liquidation, consolidation, tender offer, share exchange, reorganization, recapitalization, or other transaction; or
(p) A breach or default by Borrower or any guarantor of this Note of any lease, contract, mortgage, agreement, instrument, promissory note, or other obligation or commitment to which it is a party or with respect to which it is otherwise liable that causes, with or without notice to Borrower or the guarantor, acceleration of the date when any liability, obligation, or indebtedness in the amount of $50,000 or more becomes due and payable. If a “Default” occurs, the entire unpaid principal amount of this Note will become immediately due and payable without further demand or notice or presentment by the holder of this Note, and the holder of this Note may proceed to protect his rights in the manner provided by applicable law. The rights, remedies, powers, and privileges provided to Lender are cumulative and not exclusive of any rights, remedies, powers, and privileges provided by lawsuch performance upon demand.
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Defaults Remedies. The occurrence of one or more If any of the following events will constitute a “Default” under this Noteshall occur:
(a) The nonpayment Tenant does not pay in full when due any and all installments of rent (whether Fixed Rent or additional rent) or any interest other charge or principal under this Note when payment whether or not herein included as rent within ten (10) days of such amount becoming due, whether at maturity, by acceleration, or otherwise;
(b) The filing by Borrower of a petition seeking relief for Borrower under Tenant violates or fails to perform or comply with any bankruptcycovenant, insolvency, agreement or debtor relief lawcondition herein contained;
(c) The filing by 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; or
(d) An involuntary case under the federal bankruptcy law as now or hereafter constituted is commenced against Tenant or any creditor guarantor or surety of Borrower 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 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 of Borrower that is not dismissed or discharged within 60 days from the date of filing the petition;
(d) The entry of a judgment against Borrower for the payment of money in an amount exceeding U.S. $50,000 that is not paid, stayedother similar law, or discharged within consents to the time allowed appointment of or taking possession by law for filing a notice receiver or liquidator or assignee, trustee, custodian, sequestrator (or other similar official) of appeal Tenant or a Guarantor of the judgment;
(e) Borrower (i) 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 its creditors, (ii) creditors or admits in writing its inability to pay its debts generally as they mature, (iii) seeks, consents, become due or acquiesces to the appointment of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, or (iv) suffers the appointment, without its consent or acquiescence, of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, unless the appointment is vacated within 60 days after it becomes effective;
(f) Any representation or warranty made by Borrower in this Note is incorrect in any material respect;
(g) Borrower fails to observe generally pay its debts as they become due or perform if Tenant is levied upon and is about to be sold out upon the Premises by any covenantsheriff, condition▇▇▇▇▇▇▇▇ or constable or Tenant or its stockholders or Board of Directors or any committee thereof takes any action in contemplation, preparation or agreement contained in this Note furtherance of or for any of the Credit Documents and the failure continues for 30 days after written notice to Borrower;
(h) Borrower fails to pay when due any of its indebtedness (other than debt arising under this Note but including any other liability that it owes to Lender) foregoing, or, if Tenant or any interest Guarantor is a corporation and is dissolved or premium thereon when due (whether by scheduled maturityliquidated, accelerationThen, demandand in any such event, or otherwise) and at the failure continues after the applicable grace period, if any, specified in the agreement or instrument relating to the indebtedness;sole option of Landlord,
(i) One or more orders or judgments have been entered against Borrower The whole balance of rent and all those orders or judgments have not been vacated, discharged, stayed, or bonded pending appeal within 30 days from their entry;
(j) The issuance other sums payable hereunder for the entire balance of a writ of levy, distraint, execution, attachment, garnishment, or similar legal process (whether or not pursuant to a final judgment) against Borrower or any guarantor the term of this Note Lease, herein reserved or any of their respective property in connection with a claim for the payment of money or damages in an amount exceeding $50,000;
(k) The sequestration or assumption of custody agreed to be paid by a court having jurisdiction of all or a substantial part of the property of Borrower or any guarantor of this Note, unless the custody or sequestration is terminated within 30 days after it is effective;
(l) An attachment after judgment occurs on all or a substantial part of the property of Borrower or any guarantor of this Note, unless the resulting lien is discharged, or execution on the lien is stayed, within 15 days after it is issued or perfected;
(m) A revocation or attempted revocation of any guaranty of this Note;
(n) The violation of any lawTenant, or any act or omissionpart of such rent, charges and other sums, shall be taken to be due and payable from Tenant and in arrears as if by Borrower or any guarantor the terms of this Note Lease said balance of rent, charges and other sums and expenses were on that results date payable in the imposition of a lien by operation of law on any of its property that is not discharged within 30 days after it attaches, unless the lien relates to a claim for payment of money or damages in an amount less than $50,000;advance; and/or
(oii) A sale or transfer or all or 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 majority judgment for damages equal to the sum of the assets (measured by fair value) or the outstanding voting common stock of Borrower pursuant to a sale, lease, merger, spin-off, foreclosure, dissolution, bankruptcy, liquidation, consolidation, tender offer, share exchange, reorganization, recapitalization, or other transaction; orfollowing:
(pA) A breach or default by Borrower or any guarantor the unpaid rent and other sums which became due up to the time of this Note of any lease, contract, mortgage, agreement, instrument, promissory note, or such termination plus interest from the dates such rent and other obligation or commitment sums were due to which it is a party or with respect to which it is otherwise liable that causes, with or without notice to Borrower or the guarantor, acceleration 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 when any liability, obligation, or indebtedness in of the judgment exceeds the amount of $50,000 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 more becomes due and payable. If a “Default” occurswhich in the ordinary course would be likely to result therefrom including, without limitation, the entire unpaid principal amount cost of this Note will become immediately due repairing the Premises and payable without further demand reasonable attorneys fees; plus
(E) at Landlord's election, such other amounts in addition to or notice or presentment by in lieu of the holder of this Note, and the holder of this Note foregoing as may proceed to protect his rights in the manner provided be permitted by applicable law. As used in the foregoing clause (B), the "present value at the time of judgment" shall be computed by adding to the rent past due or which would have become due interest at the Lease Interest Rate from the dates such rent was or would have become due to the date of the judgment; and/or
(iii) Landlord may terminate Tenant's right of possession and may reenter and repossess the Premises by legal proceedings, force or otherwise, without terminating this Lease. After reentry or retaking or recovering of the Premises, whether by termination of this Lease or not, Landlord may, but shall be under no obligation to, make such alterations and repairs, as Landlord may deem then necessary or advisable and relet the Premises or any part or parts thereof, either in Landlord's name or otherwise, for a term or terms which may at Landlord's option be less than or exceed the period which otherwise would have constituted the balance of the term of this Lease and at such rent or rents and upon such other terms and conditions as in Landlord's sole discretion may seem advisable and to such person or persons as may in Landlord's sole discretion seem best; and whether or not the Premises are relet, Tenant shall be liable for any loss, for such period as is or would have been the balance of the term of the Lease, of rent and all other sums payable under this lease, plus the reasonable cost and expenses of reletting and of redecorating, remodeling or making repairs and alterations to the Premises for the purpose or reletting, the amount of such liability to be computed monthly and to be paid by Tenant to Landlord from time to time upon demand. Landlord shall in no event be liable for, nor shall any damages or other sums to be paid by Tenant to Landlord be reduced by, failure to relet the Premises provided, however, Landlord shall apply the rent or other sums received from a reletting against the sums due from Tenant under this Article 21. Tenant shall not be entitled to any rents or other sums received by Landlord in excess of those provided for in this Lease. Tenant agrees that Landlord may file suit to recover any rent and other sums falling due under the terms of this Article from time to time and that no suit or recovery of any amount due hereunder to Landlord shall be any defense to any subsequent action brought for any other amount due hereunder to Landlord. Tenant, for Tenant and Tenant's successors and assigns, hereby irrevocably constitutes and appoints Landlord, Tenant's and their agent to collect the rents due or to become due under all subleases of the Premises or any parts thereof without in any way affecting Tenant's obligation to pay any unpaid balance of rent or any other sum due or to become due hereunder. Notwithstanding any reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for Tenant's previous breach. Whenever Landlord shall have the right to reenter the Premises, it shall have the right to remove all persons and property from the Premises and either treat such property as abandoned or at Landlord's option store it in a public warehouse or elsewhere at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. Tenant waives the right to any notice to remove as may be specified in the Landlord and Tenant Act of Pennsylvania, Act of April 6, 1951, as amended, or any similar or successor provision of law. For the purposes of computing "the whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease," "the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment" and "the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment," as such quoted or any similar phrases are used in this Article 21, the amounts of additional rents which would have been due per year under this Lease shall be such amounts as Landlord shall reasonably estimate to be the per annum rates of additional rent for the calendar year during which this Lease was terminated or during which rent was accelerated, increasing annually on the first day of each calendar year thereafter at the rate of seven percent per annum compounded. The rightsparties recognize that no adequate remedy at law may exist for a breach of Articles 6, remedies7 and 10 hereof. Accordingly, powersLandlord may obtain specific performance of any provision of Articles 6, 7 and 10 hereof. Neither such right nor its exercise shall limit any other remedies which Landlord may have against Tenant for a breach of such Articles, including, without limitation, all remedies available under this Article 21. The reference herein to specific performance in connection with Articles 6, 7 and 10 shall not preclude the availability of specific performance, in any appropriate case, for the breach or threatened breach of any other provision of this Lease. In addition to other remedies available to Landlord herein, Landlord may (but shall not be obligated to do so), cure any default on behalf of Tenant, and privileges provided to Lender are cumulative Tenant shall reimburse Landlord upon demand for all reasonable costs incurred by Landlord in curing such default, including, without limitation, reasonable attorneys' fees and not exclusive of any rightsother legal expenses, remediestogether with interest thereon at the Lease Interest Rate, powers, which costs and privileges provided by lawinterest thereon shall be deemed additional rent hereunder.
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