Events of Default Conditional Limitations Remedies Etc. SECTION 25.1. The occurrence of any one or more of the following events shall be an "EVENT OF DEFAULT" hereunder: (a) if Tenant shall fail to pay any installment of any Fixed Rent or Impositions, or any part thereof, when the same shall become due and payable, and such failure shall continue for a period of five days; provided, that twice in any period of twelve consecutive months Tenant shall have ten days after written notice from Landlord to Tenant to cure such Default, except that the preceding provisions of this proviso (which provide for notice and ten days' grace period under certain circumstances) shall not apply to any failure of Tenant to pay, before the same becomes past- due or any penalty attaches or accrues on account of nonpayment or late payment, any Imposition which is a tax, assessment or other amount payable to a Governmental Authority, and provided further, that Tenant's late payment of a particular installment of any Imposition which is a tax, assessment or other amount payable to a Governmental Authority will not be deemed to constitute an Event of Default (although it will be deemed to constitute a Default) if Tenant paid such installment in full (together with any and all interest, penalties and other amounts payable with respect thereto) within five (5) days after Tenant first received a copy of the tax ▇▇▇▇ relating thereto or other written notice of the amount of and due date for such installment of Taxes; (b) if Tenant shall fail to make any payment of any Rental (other than Fixed Rent or Impositions) required to be paid by Tenant hereunder when the same shall become due and payable, and such failure shall continue for a period of ten days after written notice from Landlord to Tenant to cure such Default; (c) if Tenant shall fail to deliver to Landlord a certificate or other evidence reasonably satisfactory to Landlord of the existence of any new or renewal insurance policy required under this Lease on or prior to the date the same is required to be delivered to Landlord, and such failure shall continue for seven days after notice from Landlord (but only two Business Days after notice if Landlord's notice is given ten or fewer days prior to the expiration of the policy in question); (d) if Tenant shall fail to observe or perform any of the terms, conditions, covenants or agreements of this Lease which is not specifically the subject of any of the preceding CLAUSES (a)-(c), inclusive, of this SECTION 25.1, and such failure continues for a period of thirty days after notice thereof by Landlord to Tenant specifying such failure (unless such failure requires work to be performed, acts to be done, or conditions to be removed which cannot, either by their nature or by reason of Unavoidable Delays, reasonably be performed, done or removed, as the case may be, within such 30-day period, in which case no Event of Default shall be deemed to exist as long as Tenant shall have commenced curing the same promptly after the first notice from Landlord and shall thereafter at all times prosecute the same to completion with reasonable diligence, subject only to Unavoidable Delays); (e) if Tenant shall make an assignment for the benefit of creditors; (f) if Tenant voluntarily shall file a case or petition under Title 11 of the United States Code or any other bankruptcy, insolvency, reorganization or similar law, or if any such case or petition is filed against Tenant and an order for relief is entered, or if Tenant shall file any petition or answer seeking, consenting to or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under present or any future federal bankruptcy code or any other present or future applicable federal, state or other statute or law, or shall admit in writing that it is bankrupt or insolvent, or shall seek or consent to or acquiesce in or suffer the appointment of any trustee, receiver, custodian, assignee, sequestrator, liquidator or other similar official of Tenant or of all or any substantial part of its properties or of the Premises or any interest therein of Tenant, or if Tenant shall take any action in furtherance of any action described in SECTION 25.1(e), this SECTION 25.1(f), or SECTION 25.1(g) hereof; (g) if within ninety days after the commencement of any proceeding against Tenant seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy code or any other present or future applicable federal, state or other statute or law, such proceeding shall not have been dis missed, discontinued or vacated or if, within ninety days after the appointment, without the consent or acquiescence of Tenant, of any trustee, receiver, custodian, assignee, sequestrator, liquidator or other similar official of Tenant of all or any substantial part of its properties or of the Premises or any interest therein of Tenant, such appointment shall not have been vacated or stayed on appeal or otherwise, or if, within ninety days after the expiration of any such stay, such appointment shall not have been vacated; (h) if this Lease or all or any part of the estate or interest of Tenant hereunder or created hereby shall be assigned, subleased, transferred, mortgaged, encumbered or otherwise disposed of without compliance with the provisions of this Lease applicable thereto, and such transaction shall not be made to comply, or voided AB INITIO, within thirty days after notice thereof from Landlord to Tenant; (i) if a levy under execution or attachment shall be made against Tenant's interest or estate in the Premises or any part thereof and such execution or attachment shall not be vacated or removed by court order, bonding or otherwise within a period of sixty days; or (j) if an Event of Default occurs under the Original Lease (and, if the definition of such Event of Default expressly requires that notice thereof be given or that a specific cure period therefor is provided, then such notice shall have been given and such cure period shall have elapsed). SECTION 25.2. If an Event of Default shall occur, until such Event of Default shall have been completely cured Landlord may, in its sole discretion, exercise any or all rights and remedies available to Landlord hereunder or under applicable law (including, without limitation, proceeding by appropriate judicial proceedings, either at law or in equity, to mandate, enjoin or otherwise enforce the performance or observance by Tenant of the applicable provisions of this Lease, terminating this Lease and recovering damages for Tenant's breach hereof [including but not limited to any prepayment penalty incurred by Landlord under a Secured Loan as a result of the termination of this Lease, and brokerage commissions]), simultaneously or in such order as Landlord, in its discretion, may determine. (a) If any Event of Default shall occur and Landlord, at any time thereafter during the continuance of such Event of Default, at its option, gives written notice to Tenant stating that this Lease and the Term or any Renewal Terms shall expire and terminate on the date specified in such notice, which date shall be not less than ten days after the giving of such notice, then this Lease, the Term, any Renewal Terms, and all rights of Tenant under this Lease (including, without limitation, all rights relating to any and all Options) shall expire and terminate on the date specified in such notice as if such date were the date herein definitely fixed for the expiration of the Term or any Renewal Terms unless such Event of Default shall be sooner cured. Upon any termination of this Lease pursuant to this SECTION 25.3, Tenant immediately shall quit and surrender the Premises, but Tenant shall remain liable for damages as hereinafter provided. Anything contained herein to the contrary notwithstanding, if such termination shall be stayed or enjoined by order of any court having jurisdiction over any proceeding described in either of SECTIONS 25.1(f) or 25.1(g) hereof, or by federal or state statute, then, following the expiration or vacation of any such stay or injunc tion, or if the trustee appointed in any such proceeding, Tenant, or Tenant as debtor-in-possession shall fail to assume Tenant's obligations under this Lease within the period prescribed therefor by law or within sixty days after entry of the order for relief or as may be allowed by the court, or if said trustee, Tenant or Tenant as debtor-in-possession shall fail to provide adequate protection of Landlord's right, title and interest in and to the Premises or adequate assurance of the complete and continuous future performance of Tenant's obligations under this Lease as provided in SECTION 25.16 hereof, Landlord shall have the right, at its election, to terminate this Lease on five days' notice to Tenant, Tenant as debtor-in-possession, or said trustee, and upon the expiration of said five-day period this Lease shall cease and expire as aforesaid and Tenant, Tenant as debtor-in-possession, and said trustee shall immediately quit and surrender the Premises as aforesaid. (b) If an Event of Default shall occur and all applicable cure periods have expired, Landlord, without notice, may (unless such Event of Default shall have been completely cured) dispossess Tenant by summary proceedings or by any suitable action or proceeding at law, whether or not the Lease has terminated. SECTION 25.4. If this Lease shall be terminated as provided in SECTION 25.3(a) or Tenant shall be dispossessed as provided in SECTION 25.3(b), then: (a) Landlord or Landlord's agents or servants may immediately or at any time thereafter re-enter the Premises and remove therefrom Tenant, its agents, employees, servants, licensees, and any subtenants and other persons holding or claiming by, through or under Tenant, and all or any of its or their property, without being liable to indictment, prosecution or damages therefor, and repossess and enjoy the Premises, together with all additions, alterations and improvements thereto; (b) All of the right, title, estate and interest of Tenant in and to (i) the Premises, all Buildings (including, without limitation, all Equipment), all changes, additions and alterations therein, and all renewals and replacements thereof, (ii) all rents, issues and profits of the Premises, or any part thereof, whether then accrued or to accrue, (iii) all insurance policies and all insurance monies paid or payable thereunder, and (iv) subject to SECTION 25.17, the entire undisbursed balance of any funds (including the interest, if any, accrued thereon) then held by the Landlord, shall automatically pass to, vest in and belong to Landlord, without further action on the part of either party, free of any claim thereto by Tenant (and Landlord will not thereby be deemed to have assumed, or otherwise be or become subject to, any of Tenant's obligations or liabilities thereunder or with respect thereto), subject, however, to the rights, if any, of any Secured Lenders; (c) Tenant shall immediately pay to Landlord all Rental payable by Tenant under this Lease to the date upon which this Lease and the Term or any exercised Renewal Term shall have expired and come to an end or to the date of re-entry upon the Premises by Landlord, as the case may be; (d) Landlord may repair and alter the Premises in such manner as Landlord may deem necessary or advisable without relieving Tenant of any liability under this Lease or otherwise affecting any such liability, and let or relet the Premises or any parts thereof for the whole or any part of the remainder of the Term or for a longer period, in Landlord's name or as agent of Tenant, and out of any rent and other sums collected or received as a result of such reletting Landlord shall: (i) first, pay to itself the reasonable cost and expense of terminating this Lease, re-entering, retaking, repossessing, completing construction of and repairing and altering the Premises, or any part thereof, and the reasonable cost and expense of removing all persons and property therefrom, including in such costs reasonable brokerage commissions, legal expenses and attorneys' fees and disbursements; (ii) second, pay to itself the reasonable cost and expense sustained in securing any new tenants and other occupants, including in such costs reasonable brokerage commissions, legal expenses and attorneys' fees and disbursements and other expenses of preparing the Premises for reletting, and, if Landlord shall maintain and operate the Premises, the cost and expense of operating and maintaining the Premises; and (iii) third, pay to itself any balance remaining on account of the liability of Tenant to Landlord. Landlord in no way shall be responsible or liable for any failure to relet the Premises or any part thereof, or for any free rent or other concessions granted to any tenants in connection with any such reletting, or for any failure to collect any rent due on any such reletting, and no such failure to relet or to collect rent, or concessions granted, shall operate to relieve Tenant of any liability under this Lease or to otherwise affect any such liability; and in no event shall Tenant be entitled to receive any excess of such annual rents over the sums payable by Tenant to Landlord hereunder, provided, however, Landlord shall use reasonable efforts to mitigate its damages for any Tenant default under the Lease; (e) Tenant shall be liable for and shall pay to Landlord, as damages, any deficiency ("DEFICIENCY") between (i) the Rental (including, without limitation, Fixed Rent, Impositions, and all other amounts comprising Rental hereunder) reserved in this Lease for the period from the time of the termination hereof or dispossession of Tenant hereunder through the date on which the Term (or any exercised Renewal Term) would have ended had no such termination or dispossession occurred and (ii) the net amount, if any, of rents collected under any reletting effected pursuant to the provisions of SECTION 25.4(d) for any part of such period (which net amount shall be determined after deducting from the rents collected under any such reletting all of the payments to Landlord described in SECTION 25.4(d) hereof); any such Deficiency shall be paid in installments by Tenant on the respective days specified in this Lease for payment of installments or other payments of Rental, and Landlord shall be entitled to recover from Tenant each Deficiency install ment as the same shall arise, and no suit to collect the amount of the Deficiency for any installment period shall prejudice Landlord's right to collect the Deficiency for any subsequent installment period by a similar proceeding; and (f) Whether or not Landlord shall have collected any Deficiency installments as aforesaid, Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord, on demand, in lieu of any further Deficiencies, as and for liquidated and agreed final damages (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), a sum equal to the amount by which the Rental reserved in this Lease for the period following termination or dispossession exceeds the then fair market rental value of the Premises for the same period, both discounted to present worth at the rate per annum equal to the yield on then current Five-Year U.S. Treasury Index, less the aggregate amount of Deficiencies theretofore collected by Landlord pursuant to the provisions of SECTION 25.4(C) for the same period (if any). In no event is Landlord entitled to accelerated nondiscounted rent. SECTION 25.5. No taking of possession of, or reletting of, the Premises or any part thereof pursuant to SECTIONS 25.3(b) or 25.4, or any other provision hereof, or as permitted by applicable law, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such repossession or reletting except as otherwise specifically and expressly provided herein. SECTION 25.6. To the extent not prohibited by law, Tenant hereby waives and releases all rights now or hereafter conferred by statute or otherwise which would have the effect of limiting or modifying any of the provisions of, or limiting or restricting Landlord's rig
Appears in 1 contract
Sources: Lease Agreement (Coach Inc)
Events of Default Conditional Limitations Remedies Etc. SECTION 25.1Section 24.01. The occurrence of any one or more Each of the following events shall be an "EVENT OF DEFAULTEvent of Default" hereunder:
(a) if Tenant shall fail to pay any installment item of any Fixed Rent or ImpositionsRental, or any part thereof, when the same shall become due and payablepayable and such failure shall continue for ten (10) days after notice from Landlord to Tenant;
(b) if (i) Commencement of Construction shall not have occurred on or before the Construction Commencement Date (subject to Unavoidable Delays) and such failure shall continue for thirty (30) days after notice from Landlord to Tenant, (ii) Substantial Completion of the Building shall not have occurred on or before the Scheduled Completion Date (subject to Unavoidable Delays) and such failure shall continue for sixty (60) days after notice from Landlord to Tenant or (iii) the Occupancy Date shall not have occurred within forty eight (48) months of the Construction Commencement Date (subject to Unavoidable Delays) and such failure shall continue for thirty (30) days after notice from Landlord to Tenant;
(c) if Tenant shall fail to observe or perform one or more of the other terms, conditions, covenants or agreements contained in this Lease, including, without limitation, any of Tenant's obligations under the provisions of Article 11. of this Lease (other than the obligations referred to in the preceding Section 24.01(b)), and such failure shall continue for a period of five days; provided, that twice in any period of twelve consecutive months Tenant shall have ten days after written notice from Landlord to Tenant to cure such Default, except that the preceding provisions of this proviso thirty (which provide for notice and ten days' grace period under certain circumstances30) shall not apply to any failure of Tenant to pay, before the same becomes past- due or any penalty attaches or accrues on account of nonpayment or late payment, any Imposition which is a tax, assessment or other amount payable to a Governmental Authority, and provided further, that Tenant's late payment of a particular installment of any Imposition which is a tax, assessment or other amount payable to a Governmental Authority will not be deemed to constitute an Event of Default (although it will be deemed to constitute a Default) if Tenant paid such installment in full (together with any and all interest, penalties and other amounts payable with respect thereto) within five (5) days after Tenant first received a copy of the tax ▇▇▇▇ relating thereto or other written notice of the amount of and due date for such installment of Taxes;
(b) if Tenant shall fail to make any payment of any Rental (other than Fixed Rent or Impositions) required to be paid by Tenant hereunder when the same shall become due and payable, and such failure shall continue for a period of ten days after written notice from Landlord to Tenant to cure such Default;
(c) if Tenant shall fail to deliver to Landlord a certificate or other evidence reasonably satisfactory to Landlord of the existence of any new or renewal insurance policy required under this Lease on or prior to the date the same is required to be delivered to Landlord, and such failure shall continue for seven days after notice from Landlord (but only two Business Days after notice if Landlord's notice is given ten or fewer days prior to the expiration of the policy in question);
(d) if Tenant shall fail to observe or perform any of the terms, conditions, covenants or agreements of this Lease which is not specifically the subject of any of the preceding CLAUSES (a)-(c), inclusive, of this SECTION 25.1, and such failure continues for a period of thirty days after notice thereof by Landlord to Tenant specifying such failure (unless such failure requires work to be performed, acts to be done, or conditions to be removed which cannot, either not by their nature or by reason because of Unavoidable Delays, Delays reasonably be performed, done or removed, as the case may be, within such thirty (30-) day period, in which case no Event of Default shall be deemed to exist as long as Tenant shall have commenced curing the same promptly after the first notice from Landlord within such thirty (30) day period and shall thereafter at all times shall, subject to Unavoidable Delays, diligently and continuously prosecute the same to completion with reasonable diligencecompletion);
(d) to the extent permitted by law, subject only if Tenant shall admit, in writing, that it is unable to Unavoidable Delays)pay its debts as such become due;
(e) to the extent permitted by law, if Tenant shall make an assignment for the benefit of creditors;
(f) to the extent permitted by law, if Tenant voluntarily shall file a case or voluntary petition under Title 11 of the United States Code or any other bankruptcy, insolvency, reorganization or similar law, or if any such case or petition is filed against Tenant it, and an order for relief is entered, or if Tenant shall file any petition or answer seeking, consenting to or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, . dissolution or similar relief under the present or any future federal bankruptcy code or any other present or future applicable federal, state or other statute or law, or shall admit in writing that it is bankrupt or insolvent, or shall seek or consent to or acquiesce in or suffer the appointment of any trustee, receiver, custodian, assignee, sequestrator, liquidator or other similar official of Tenant Tenant, or of all or any substantial part of its properties or of the Premises or any interest therein of Tenant, or if Tenant shall take any corporate action in furtherance of any action described in SECTION 25.1(eSections 24.01(d), this SECTION 25.1(f), (e) or SECTION 25.1(g(f) hereof;
(g) to the extent permitted by law, if within ninety (90) days after the commencement of any proceeding against Tenant seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy code or any other present or future applicable federal, state or other statute or law, such proceeding shall not have been dis missed, discontinued or vacated dismissed; or if, within ninety (90) days after the appointment, without the consent or acquiescence of Tenant, of any trustee, receiver, custodian, assignee, sequestrator, liquidator or other similar official of Tenant or of all or any substantial part of its properties or of the Premises or any interest therein of Tenant, such appointment shall not have been vacated or stayed on appeal or otherwise, or if, within ninety thirty (30) days after the expiration of any such stay, such appointment shall not have been vacated;
(h) if this Lease or all or any part of the estate or interest of Tenant hereunder or created hereby shall be assigned, subleased, transferred, mortgagedmortgaged or encumbered, encumbered or otherwise disposed of there shall be a Transfer, without Landlord's approval to the extent required hereunder or without compliance with the provisions of this Lease applicable thereto, thereto and such transaction shall not be made to comply, comply or voided AB INITIO, ab initio within thirty (30) days after notice thereof from Landlord to Tenant;
(i) if a levy under execution or attachment shall be made against Tenant's interest or estate in the Premises or any part thereof and such execution or attachment shall not be vacated or removed by court order, bonding or otherwise or bonded within a period of sixty days; orthirty (30) days from the date on which Tenant shall have received notice of same;
(j) if an Event of Default occurs Tenant is a corporation, if Tenant shall at any time fail to maintain its corporate existence in good standing, or to pay any corporate franchise tax when and as the same shall become due and payable and such failure shall continue for thirty (30) days after notice thereof from Landlord or any governmental agency to Tenant;
(k) if Tenant shall have defaulted under the Original Lease (and, if the definition of Funding Agreement or Occupancy Agreement and such Event of Default expressly requires that notice thereof be given default shall not have been remedied within any applicable grace or that a specific cure period therefor is provided, then such notice provided therein; or
(l) if Tenant shall have been given and such cure period shall have elapsed)amended, modified or entered into a supplement to the Severance Tenants Agreement without the prior consent of Landlord.
SECTION 25.2Section 24.02. If an Event of Default (other than an Event of Default described in Section 24.01(k) or Section 23.05) shall occur, until Landlord may elect to declare due and payable a sum equal to the amount by which the Rental reserved in this Lease for the period which otherwise would have constituted the unexpired portion of the Term exceeds the fair and reasonable rental value of the Premises for the same period, both discounted to present worth at the rate of eight percent (8%) per annum, such Event sum shall be due and payable ten (10) days after notice by Landlord to Tenant of such election. However, the aforesaid remedy shall not be applicable to a Mortgagee which elects to cure the Default shall have been completely cured of Tenant pursuant to Section 10.10 or receives a new lease pursuant to Section 10.11. Landlord may, in its sole discretion, exercise any or all rights and remedies available may also elect to Landlord hereunder or under applicable law (including, without limitation, proceeding proceed by appropriate judicial proceedings, either at law or in equity, to mandate, enjoin or otherwise enforce the performance or observance by Tenant of the applicable provisions of this Lease, terminating this Lease and recovering and/or to recover damages for Tenant's breach hereof [including but not limited to any prepayment penalty incurred by Landlord under a Secured Loan as a result of the termination of this Lease, and brokerage commissions]), simultaneously or in such order as Landlord, in its discretion, may determinethereof.
(a) If any Event of Default (i) described in Sections 24.01(d), (e), (f) or (g) hereof shall occur, or (ii) described in Sections 24.01(b), (c), (h), (i), (j), (k) or (l) shall occur and Landlord, at any time thereafter during the continuance of such Event of Defaultthereafter, at its option, gives written notice to Tenant stating that this Lease and the Term or any Renewal Terms shall expire and terminate on the date specified in such notice, which date shall be not less than ten (10) days after the giving of such notice, and if, on the date specified in such notice, Tenant shall have failed to cure the Default which was the basis for the Event of Default, then this LeaseLease and the Term and, the Termexcept as provided in Section 24.04(a), any Renewal Terms, and all rights of Tenant under this Lease (including, without limitation, all rights relating to any and all Options) shall expire and terminate as of the date on which the Event of Default described in clause (i) above occurred or the date specified in such the notice given pursuant to clause (ii) above, as the case may be, as if such date were the date herein definitely fixed for the expiration of the Term or any Renewal Terms unless such Event of Default shall be sooner cured. Upon any termination of this Lease pursuant to this SECTION 25.3, and Tenant immediately shall Shall quit and surrender the Premises, but Tenant shall remain liable for damages as hereinafter provided. Anything contained herein to the contrary notwithstanding, if such termination shall be stayed or enjoined by order of any court having jurisdiction over any proceeding described in either of SECTIONS 25.1(fSection 24.01(f) or 25.1(g(g) hereof, or by federal or state statute, then, . following the expiration or vacation of any such stay or injunc tionstay, or if the trustee appointed in any such proceeding, Tenant, Tenant or Tenant as debtor-in-possession shall fail to assume Tenant's obligations under this Lease within the period prescribed therefor by law or within sixty one hundred twenty (120) days after entry of the order for relief or as may be allowed by the court, or if said trustee, Tenant or Tenant as debtor-in-possession shall fail to provide adequate protection of Landlord's right, title and interest in and to the Premises or adequate assurance of the complete and continuous future performance of Tenant's obligations under this Lease as provided in SECTION 25.16 Section 24.15 hereof, Landlord Landlord, to the extent permitted by law or by leave of the court having jurisdiction over such proceeding, shall have the right, at its election, to terminate this Lease on five days' ten (10) days notice to Tenant, Tenant as debtor-in-possession, possession or said trustee, trustee and upon the expiration of said five-ten (10) day period this Lease shall cease and expire as aforesaid and Tenant, Tenant as debtor-in-possession, and said possession and/or trustee shall immediately quit and surrender the Premises as aforesaid.
(b) If an Event of Default described in Section 24.01 (a) shall occur and all applicable cure periods have expiredoccur, or this Lease shall be terminated as provided in Section 24.03(a), Landlord, without notice, may (unless re-enter and repossess the Premises using such Event of Default shall have been completely cured) force for that purpose as may be necessary without being liable to indictment, prosecution or damages therefor and may dispossess Tenant by summary proceedings or by any suitable action or proceeding at law, whether or not the Lease has terminatedotherwise.
SECTION 25.4Section 24.04. If this Lease shall be terminated as provided in SECTION 25.3(aSection 24.03(a) or Tenant shall be dispossessed by summary proceedings or otherwise as provided in SECTION 25.3(b), thenSection 24.03(b) hereof:
(a) Landlord or Landlord's agents or servants may immediately or at any time thereafter re-enter the Premises and remove therefrom Tenant, its agents, employees, servants, licensees, and any subtenants and other persons holding or claiming by, through or under Tenant, and all or any of its or their property, without being liable to indictment, prosecution or damages therefor, and repossess and enjoy the Premises, together with all additions, alterations and improvements thereto;
(b) All of the right, title, estate and interest of Tenant in and to (i) the Premises, all Buildings (including, without limitation, all Equipment), all changes, additions and alterations therein, and all renewals and replacements thereof, (ii) all rents, issues and profits of the Premises, or any part thereof, whether then accrued or to accrue, (iii) all insurance policies and all insurance monies paid or payable thereunder, and (iv) subject to SECTION 25.17, the entire undisbursed balance of any funds (including the interest, if any, accrued thereon) then held by the Landlord, shall automatically pass to, vest in and belong to Landlord, without further action on the part of either party, free of any claim thereto by Tenant (and Landlord will not thereby be deemed to have assumed, or otherwise be or become subject to, any of Tenant's obligations or liabilities thereunder or with respect thereto), subject, however, to the rights, if any, of any Secured Lenders;
(c) Tenant shall immediately pay to Landlord all Rental payable by Tenant under this Lease to the date upon which this Lease and the Term or any exercised Renewal Term shall have expired and come to an end or to the date of re-entry upon the Premises by Landlord, as the case may be;
(db) Landlord may complete all construction required to be performed by Tenant hereunder and may repair and alter the Premises in such manner as Landlord may deem necessary or advisable (and may apply to the foregoing all funds, if any, then held by Depository pursuant to Articles 7, 8 or 9) without relieving Tenant of any liability under this Lease or otherwise affecting any such liability, and and/or let or relet the Premises or any parts thereof for the whole or any part of the remainder of the Term or for a longer period, in Landlord's name or as agent of Tenant, and out of any rent and other sums collected or received as a result of such reletting Landlord shall: (iA) first, pay to itself the reasonable cost and expense of terminating this Lease, re-entering, retaking, repossessing, completing construction of and repairing and or altering the Premises, or any part thereof, and the reasonable cost and expense of removing all persons and property therefrom, including in such costs reasonable brokerage commissions, legal expenses and reasonable attorneys' fees and disbursements; , (iiB) second, pay to itself the reasonable cost and expense sustained in securing any new tenants and other occupants, including in such costs reasonable brokerage commissions, legal expenses and reasonable attorneys' fees and disbursements and other expenses of preparing the Premises for reletting, and, if Landlord shall maintain and operate the Premises, the reasonable cost and expense of operating and maintaining the Premises; Premises and (iiiC) third, pay to itself any balance remaining on account of the liability of Tenant to Landlord. Landlord in no way shall be responsible or liable for any failure to relet the Premises or any part thereof, or for any free rent or other concessions granted to any tenants in connection with any such reletting, or for any failure to collect any rent due on any such reletting, and no such failure to relet or to collect rent, or concessions granted, rent shall operate to relieve Tenant of any liability under this Lease or to otherwise affect any such liability; and in no event shall Tenant be entitled to receive any excess of such annual rents over the sums payable by Tenant to Landlord hereunder, provided, however, Landlord shall use reasonable efforts to mitigate its damages for any Tenant default under the Lease;
(ec) if Landlord shall not have declared all Rental due and payable pursuant to Section 24.02 hereof, Tenant shall be liable for and shall pay to Landlord, as damages, any deficiency (referred to as "DEFICIENCYDeficiency") between (i) the Rental (including, without limitation, Fixed Rent, Impositions, and all other amounts comprising Rental hereunder) reserved in this Lease for the period from which otherwise would have constituted the time unexpired portion of the termination hereof or dispossession of Tenant hereunder through the date on which the Term (or any exercised Renewal Term) would have ended had no such termination or dispossession occurred and (ii) the net amount, if any, of rents collected under any reletting effected pursuant to the provisions of SECTION 25.4(dSection 24.04(b) for any part of such period (which net amount shall be determined after first deducting from the rents collected under any such reletting all of the payments to Landlord described in SECTION 25.4(dSection 24.04(b) hereof); any such Deficiency shall be paid in installments by Tenant on the respective days specified in this Lease for payment of installments or other payments of Rental, and Landlord shall be entitled to recover from Tenant each Deficiency install ment installment as the same shall arise, and no suit to collect the amount of the Deficiency for any installment period shall prejudice Landlord's right to collect the Deficiency for any subsequent installment period by a similar proceeding, provided, however, the provisions of this subparagraph (c) shall not be applicable and Tenant shall not be responsible for the payment of any Deficiency if the Event of Default that gave rise to the termination of the Lease or summary proceedings was an Event of Default described in Section 24.01(k) or Section 23.05 hereof; and
(fd) Whether if Landlord shall not have declared all Rental due and payable pursuant to Section 24.02 hereof, and whether or not Landlord shall have collected any Deficiency installments as aforesaid, Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord, on demand, in lieu of any further Deficiencies, as and for liquidated and agreed final damages (it being agreed that it would be impracticable or extremely difficult to fix the actual damagesdamage), a sum equal to the amount by which the Rental reserved in this Lease for the period following termination or dispossession which otherwise would have constituted the unexpired portion of the Term exceeds the then fair market and reasonable rental value of the Premises for the same period, both discounted to present worth at the rate of eight percent (8%) per annum equal to the yield on then current Five-Year U.S. Treasury Index, less the aggregate amount of Deficiencies theretofore collected by Landlord pursuant to the provisions of SECTION 25.4(CSection 24.04(c) for the same period (period; it being agreed that before presentation of proof of such liquidated damages to any court, commission or tribunal, if any). In no event is Landlord entitled to accelerated nondiscounted rent.
SECTION 25.5. No taking of possession ofthe Premises, or reletting of, the Premises or any part thereof pursuant to SECTIONS 25.3(b) or 25.4thereof, shall have been relet by Landlord for the period which otherwise would have constituted the unexpired portion of the Term, or any other provision part thereof, the amount of rent reserved upon such reletting shall be deemed, prima facie, to be the fair and reasonable rental value for the part or the whole of the Premises so relet during the term of the reletting, provided, however, the provisions of this subparagraph (d) shall not be applicable and Tenant shall not be responsible for the payment of such damages if the Event of Default that gave rise to the termination of this Lease or summary proceedings was an Event of Default described in Section 24.01(k) or Section 23.05 hereof.
Section 24.05. No termination of this Lease pursuant to Section 24.03(a) or taking possession of or reletting the Premises, or as permitted by applicable lawany part thereof, pursuant to Section 24.03(b) and 24.04(b), shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, repossession or reletting except as otherwise specifically and expressly provided hereinreletting.
SECTION 25.6Section 24.06. To the extent not prohibited by law, and except as provided in this lease, Tenant hereby waives and releases all rights now or hereafter conferred by statute or otherwise which would have the effect of limiting or modifying any of the provisions ofof this Article 24. Tenant shall execute, acknowledge and deliver any instruments which Landlord may request, whether before or after the occurrence of an Event of Default, evidencing such waiver or release.
Section 24.07. Suit or suits for the recovery of damages, or limiting for a sum equal to any installment or restricting installments of Rental payable hereunder or any Deficiencies or other sums payable by Tenant to Landlord pursuant to this Article 24, may be brought by Landlord from time to time at Landlord's rigelection, and nothing herein contained shall be deemed to require Landlord to await the date whereon this Lease or the Term would have expired had there been no Event of Default by Tenant and termination.
Section 24.08. Nothing contained in this Article 24 shall limit or prejudice the right of Landlord to prove and obtain as liquidated damages in any bankruptcy, insolvency, receivership, reorganization or dissolution proceeding an amount equal to the maximum allowed by statute or rule of law
Appears in 1 contract
Sources: Ground Lease (Nymex Holdings Inc)
Events of Default Conditional Limitations Remedies Etc. SECTION 25.1. Section 14.1 The occurrence of at any one or more time during the Term of the following events set forth in clauses (a), (b) or (c) of this Section 14.1 shall be constitute an "EVENT OF DEFAULTevent of default" hereunder:
(a) if Tenant shall fail to pay in full any installment Rental installment, any item of any Fixed Rent or Impositionsadditional rent, or any part thereof, other payment required to be paid by Tenant under this Lease when the same shall become due and payable, and such failure shall continue for a period of five days; provided, that twice in any period of twelve consecutive months Tenant shall have ten days after written notice from Landlord to Tenant to cure such Default, except that the preceding provisions of this proviso (which provide for notice and ten days' grace period under certain circumstances) shall not apply to any failure of Tenant to pay, before the same becomes past- due or any penalty attaches or accrues on account of nonpayment or late payment, any Imposition which is a tax, assessment or other amount payable to a Governmental Authority, and provided further, that Tenant's late payment of a particular installment of any Imposition which is a tax, assessment or other amount payable to a Governmental Authority will not be deemed to constitute an Event of Default (although it will be deemed to constitute a Default) if Tenant paid such installment in full (together with any and all interest, penalties and other amounts payable with respect thereto) within five (5) days after Tenant first received a copy of the tax ▇▇▇▇ relating thereto or other written notice of the amount of and due date for such installment of Taxes;
(b) if Tenant shall fail to make any payment of any Rental (other than Fixed Rent or Impositions) required to be paid by Tenant hereunder when the same shall become due and payablehereunder, and such failure shall continue for a period of ten (10) days after written notice from Landlord to Tenant to cure the date such Default;payment was due; (b)
(ci) Tenant shall abandon the Demised Premises for a period of more than thirty (30) days; or
(ii) In contravention of the applicable provisions hereof, this Lease or the estate of Tenant hereunder shall be assigned, transferred, mortgaged or otherwise encumbered in whole or in part or shall pass to or devolve upon any other person by operation of law or otherwise, or if the Demised Premises or any part thereof shall be sublet, used or occupied in violations of the term hereof; or
(iii) Tenant shall fail to deliver maintain the Required Licenses (as hereinafter defined) or any other licenses and permits from time to Landlord a certificate time required in full force and effect to enable Tenant to conduct its business under this Lease.
(iv) All or other evidence reasonably satisfactory to Landlord any part of the existence Demised Premises shall be seized and/or closed by any governmental authority pursuant to any Federal, State or local laws, or similar laws or regulations, as a result of any new or renewal insurance policy required under this Lease on or prior charges that said Demised Premises constituted a nuisance (subject to the date Nuisance Exception as defined on Schedule 4 attached hereto) or a use for illegal purposes (except under the Federal Law Exceptions), unless same is required to be delivered to Landlord, and such failure shall continue for seven days after notice from caused by Landlord (but only two Business Days after notice if Landlord's notice is given ten or fewer days prior to the expiration of the policy in question);its agents; or
(dv) if Tenant shall fail to keep, observe or perform any of the nonmonetary terms, conditionscovenants, covenants conditions or agreements of this Lease which is not specifically the subject of any of the preceding CLAUSES (a)-(c)on Tenant's part to be kept, inclusive, of this SECTION 25.1, observed or performed and such failure continues default shall continue for a period of thirty twenty (20) days after written notice thereof by Landlord to Tenant specifying such failure (default, unless such failure default requires work to be performed, acts to be done, done or conditions to be removed which cannot, either not by their nature or by reason of Unavoidable Delays, reasonably be performed, done or removed, removed as the case may be, be within such 30-twenty (20) day period, in which case no Event of Default shall be deemed to exist as long as then if Tenant shall not have commenced curing the same promptly after the first notice from Landlord and within such twenty (20) day period or shall thereafter at all times fail diligently and continuously to prosecute the same to completion with reasonable diligence, subject only to Unavoidable Delays);within twenty (20) days thereafter; or
(evi) if Any action or proceeding is commenced by any governmental authority with respect to curing violations or maintenance of the Demised Premises that is Tenant's responsibility and such action is not dismissed within forty-five (45) days after the commencement thereof; or
(i) Tenant shall make an assignment for the benefit of creditors;; or
(fii) if Tenant voluntarily shall file a case or voluntary petition under Title 11 of the United States Code or any other bankruptcyCode, insolvency, reorganization or similar lawas the same may be amended, or if any such case or petition is filed against Tenant and an order for relief is entered, or if Tenant shall file any petition or answer seeking, consenting to or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or any future federal bankruptcy code or any other present or future applicable federal, state Federal or State or other statute or law, or shall admit in writing that it is bankrupt or insolvent, or shall seek or consent to or acquiesce in or suffer the appointment of any custodian, trustee, receiver, custodian, assigneereceived, sequestrator, liquidator or other similar official of Tenant or of all or any substantial part of its properties property or of the Demised Premises or any interest therein of TenantTenant therein, or if Tenant shall take any action in furtherance of any action described in SECTION 25.1(esubdivisions (i), (ii) or (iii) or this SECTION 25.1(fSection 14.1(c), or SECTION 25.1(g) hereof;; or
(giii) if within ninety Within sixty (60) days after the commencement of any proceeding against Tenant seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the any present or any future federal Federal bankruptcy code or any other present or future applicable federal, state Federal or other State statute or law, such proceeding shall not have been dis misseddismissed, discontinued or vacated or if, within ninety sixty (60) days after the appointment, without the consent or acquiescence of Tenant, Tenant of any custodian, trustee, receiver, custodian, assignee, sequestrator, liquidator or any other similar official of Tenant or of all or any substantial part of its properties or of the Demised Premises or any interest therein of TenantTenant therein, such appointment shall not have been vacated or stayed on appeal or otherwise, or if, if within ninety thirty (30) days after the expiration of any such stay, such appointment shall not have been vacated;
(h) if this Lease or all or any part of the estate or interest of Tenant hereunder or created hereby shall be assigned, subleased, transferred, mortgaged, encumbered or otherwise disposed of without compliance with the provisions of this Lease applicable thereto, and such transaction shall not be made to comply, or voided AB INITIO, within thirty days after notice thereof from Landlord to Tenant;
(i) if a levy under execution or attachment shall be made against Tenant's interest or estate in the Premises or any part thereof and such execution or attachment shall not be vacated or removed by court order, bonding or otherwise within a period of sixty days; or
(j) if an Event of Default occurs under the Original Lease (and, if the definition of such Event of Default expressly requires that notice thereof be given or that a specific cure period therefor is provided, then such notice shall have been given and such cure period shall have elapsed).
SECTION 25.2. If an Event of Default shall occur, until such Event of Default shall have been completely cured Landlord may, in its sole discretion, exercise any or all rights and remedies available to Landlord hereunder or under applicable law (including, without limitation, proceeding by appropriate judicial proceedings, either at law or in equity, to mandate, enjoin or otherwise enforce the performance or observance by Tenant of the applicable provisions of this Lease, terminating this Lease and recovering damages for Tenant's breach hereof [including but not limited to any prepayment penalty incurred by Landlord under a Secured Loan as a result of the termination of this Lease, and brokerage commissions]), simultaneously or in such order as Landlord, in its discretion, may determine.
(a) If Upon the occurrence of any Event of Default shall occur and Landlordthe events of default set forth in Section 14.1(c), Landlord may at any time thereafter during the continuance of any such Event event of Defaultdefault serve upon Tenant a fifteen (15) day notice of termination of this Lease and upon the expiration of such fifteen (15) day period, at its option, gives written notice to Tenant stating that this Lease and the Term or any Renewal Terms shall cease, terminate and expire as fully and terminate on completely as if the date specified in such notice, which date shall be not less than ten days after the giving expiration of such notice, then this Lease, the Term, any Renewal Terms, and all rights of Tenant under this Lease fifteen (including, without limitation, all rights relating to any and all Options15) shall expire and terminate on the date specified in such notice as if such date day period were the date herein definitely fixed for the end and expiration of the Term or any Renewal Terms unless such Event of Default shall be sooner cured. Upon any termination of this Lease pursuant to this SECTION 25.3and the Term, and Tenant immediately shall quit and surrender the Demised Premises, but Tenant shall remain liable for damages as hereinafter provided. Anything contained herein to the contrary notwithstanding, ; or if such termination shall be proscribed by any law applicable to the proceeding or stayed or enjoined by order of any court having jurisdiction over any proceeding described in either of SECTIONS 25.1(f) or 25.1(g) hereof, or by federal or state statutethe proceeding, then, following the expiration or vacation of any such stay or injunc tionstay, or if the trustee appointed in any such proceeding, Tenant, Tenant or Tenant as debtor-in-possession shall fail to assume Tenant's obligations under this Lease in its entirety and all of the covenants thereof within the period prescribed therefor therefore by law or within sixty days after entry of the order for relief or as may be allowed by the court, or if and/or said trustee, Tenant or Tenant as debtor-in-possession shall fail to provide adequate protection of Landlord's right, title and interest in and to the Premises or adequate assurance of the complete and continuous future performance of Tenant's obligations under this Lease as provided in SECTION 25.16 hereofLease, Landlord shall have the right, at its election, to terminate this Lease on five days' fifteen (15) days notice to Tenant, Tenant as debtor-in-possession, possession or said trustee, and upon the expiration of said five-fifteen (15) day period this Lease shall cease and expire expires as aforesaid fully and Tenant, Tenant completely as debtor-in-possessionif such date were the date herein definitely fixed for the end and expiration of this Lease and the Term, and said trustee thereupon neither Tenant nor any subtenant or statute or order of any court shall immediately quit be entitled to the possession of the Demised Premises, or any part thereof, and surrender Landlord, in addition to the Premises other rights and remedies given pursuant to this Article 14, or by virtue of any other provision in this Lease, or by virtue of any statute or rule of law, may retain or receive as aforesaidpartial liquidated damages any basic rent and additional rent, or other moneys received by it from Tenant or others on behalf of Tenant.
(b) If this Lease shall terminate and expire pursuant to the provisions of Section 14.2(a) Landlord shall be entitled to prove and recover in any such bankruptcy, insolvency, receivership, reorganization or dissolution proceeding all arrears in basic rent and additional rent and in addition thereto as liquidated damages an Event amount equal to the maximum allowed by statute or rule of Default shall occur and all applicable cure periods have expired, Landlord, without notice, may (unless law in effect at the time then governing the proceedings in which such Event of Default shall have been completely cured) dispossess Tenant by summary proceedings or by any suitable action or proceeding at lawdamages are to be proved, whether or not such amount be greater or less than the Lease has terminatedamount referred to in this Section 14.2(b).
SECTION 25.4. If this Lease shall be terminated as provided in SECTION 25.3(a) or Tenant shall be dispossessed as provided in SECTION 25.3(b), then:
(a) Upon the occurrence of any of the events of default set forth in Sections 14.1(a) or (b), Landlord or Landlord's agents or servants may immediately or at any time thereafter and during the continuance of any such event of default, if applicable, serve upon Tenant a fifteen (15) day notice of termination of this Lease and upon the expiration of such fifteen (15) day period, this Lease and the Term shall cease, end and expire as fully and completely as if the expiration of such ten (10) day period were the date herein definitely fixed for the end and expiration of this Lease and the Term, and thereupon Tenant and any subtenants or other persons claiming through or under Tenant shall quit and surrender the Demised Premises to Landlord, but Tenant shall remain liable as hereinafter provided.
(b) If the notice provided for in Section 14.3(a) shall have been given, and the Term shall have expired as aforesaid, or if any of the events of default set forth in Section 14.1(a) shall occur, then and in any of such events Landlord may, without further notice, re-enter and repossess the Premises Demised Premises, using such force for that purpose as may be lawful and remove therefrom Tenant, its agents, employees, servants, licensees, and any subtenants and other persons holding or claiming by, through or under Tenant, and all or any of its or their property, necessary without being liable to indictment, prosecution or damages therefor, and repossess may dispossess Tenant and enjoy any subtenant or other person claiming through or under Tenant by summary proceedings or otherwise and remove their effects and hold the PremisesDemised Premises as Landlord's former estate as if this Lease had not been made.
Section 14.4 If this Lease and the Term shall have terminated and expired as provided in Section 14.3(a), together with all additions, alterations and improvements thereto;or if Landlord shall have re-entered the Demised Premises and/or shall have dispossessed Tenant by summary proceedings or otherwise as provided in Section 14.3(b):
(b) All of the right, title, estate and interest of Tenant in and to (i) the Premises, all Buildings (including, without limitation, all Equipment), all changes, additions and alterations therein, and all renewals and replacements thereof, (ii) all rents, issues and profits of the Premises, or any part thereof, whether then accrued or to accrue, (iii) all insurance policies and all insurance monies paid or payable thereunder, and (iv) subject to SECTION 25.17, the entire undisbursed balance of any funds (including the interest, if any, accrued thereon) then held by the Landlord, shall automatically pass to, vest in and belong to Landlord, without further action on the part of either party, free of any claim thereto by Tenant (and Landlord will not thereby be deemed to have assumed, or otherwise be or become subject to, any of Tenant's obligations or liabilities thereunder or with respect thereto), subject, however, to the rights, if any, of any Secured Lenders;
(ca) Tenant shall immediately pay to Landlord all Rental basic rent and additional rent payable by Tenant under this Lease to the date upon which this Lease and the Term or any exercised Renewal Term shall have terminated, expired and come to an end or to the date of re-entry upon the Demised Premises by Landlord, as the case may be;
(db) Landlord may repair and repair, renovate, remodel and/or alter the Demised Premises or any part thereof in such manner as Landlord may deem necessary or advisable without thereby relieving Tenant of any liability liability, under this Lease or otherwise affecting any such liability, and and/or Landlord may let or relet the Demised Premises or any parts part(s) thereof for the whole or any part of the remainder of the Term or for a longer period, in Landlord's name or as agent of Tenant, at such rental and upon such terms and conditions as Landlord shall deem appropriate, to any tenant it may deem suitable and for any use or purpose it may deem appropriate, and out of any rent and other sums collected or received as a result of such reletting Landlord shall: (i) first, pay to itself the reasonable cost all costs and expense expenses of terminating this Lease, re-entering, retaking, repossessing, completing construction of and repairing and repairing, renovating, remodeling and/or altering the Premises, Demised Premises or any part thereof, and the reasonable cost and expense of removing all persons and property therefrom, including in such costs reasonable brokerage commissions, legal expenses and attorneys' fees and disbursements; (ii) second, pay to itself the reasonable cost costs and expense expenses sustained in securing any new tenants and other occupants, including in such costs reasonable costs, brokerage commissions, legal expenses and reasonable attorneys' fees and disbursements and other expenses of preparing the Demised Premises or any part thereof for reletting, reletting and, if Landlord shall maintain and operate the Demised Premises, the cost costs and expense expenses of operating such maintenance and maintaining the Premisesoperation; and (iii) third, pay to itself any balance remaining on account of the liability of Tenant to Landlord hereunder. Notwithstanding Landlord. 's duty to mitigate damages, Landlord shall in no way shall be responsible or liable for any failure to relet the Demised Premises or any part thereof, or for any free rent or other concessions granted to any tenants in connection with any such reletting, or for any failure to collect any rent due on any such reletting, and no such failure to relet or to collect rent, or concessions granted, rent shall operate to relieve Tenant of any liability under this Lease or to otherwise affect any such liabilityotherwise; and any rents or other sums received by Landlord on a reletting in no event shall Tenant be entitled to receive any excess of such annual rents over the sums payable by Tenant basic rent and additional rent reserved in this Lease shall belong solely to Landlord hereunder, provided, however, Landlord shall use reasonable efforts to mitigate its damages for any Tenant default under the LeaseLandlord;
(ec) Tenant shall be liable for and shall pay to Landlord, Landlord as damages, any deficiency (the "DEFICIENCYDeficiency") between (i) the Rental (including, without limitation, Fixed Rent, Impositions, basic rent and all other amounts comprising Rental hereunder) additional rent reserved in this Lease for the period from which otherwise would have constituted the time unexpired portion of the termination hereof or dispossession of Tenant hereunder through the date on which the Term (or any exercised Renewal Term) would have ended had no such termination or dispossession occurred and (ii) the net amount, if any, of rents collected under any reletting effected pursuant to the provisions of SECTION 25.4(d) for any part of such period (which net amount shall be determined after deducting from the rents collected under any such reletting all of the payments to Landlord described in SECTION 25.4(d) hereofSection 14.4(b); any . Any such Deficiency shall be paid by Tenant in installments by Tenant on the respective days specified in this Lease for the payment of installments or other payments of Rentalbasic rent and additional rent, and Landlord shall be entitled to recover from Tenant each such Deficiency install ment installments(s) as the same shall arise, and no suit suits or actions to collect the amount or amounts of the any Deficiency for any installment period shall prejudice Landlord's right to collect the Deficiency for any subsequent installment period by a similar proceedingsuit or action; and
(fd) Whether or not Landlord shall have collected any Deficiency installments as aforesaid, Landlord shall be entitled at any time to recover from Tenant, and Tenant shall pay to Landlord, on demand, in lieu of any further Deficiencies, as and for liquidated and agreed final damages (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), a sum equal to the amount by which the Rental aggregate basic rent and additional rent reserved in this Lease for the period following termination which at the time of the termination, re-entry or dispossession dispossess would have constituted the unexpired portion of the Term exceeds the then fair market and reasonable rental value of the Demised Premises for the same period, both discounted to present worth at the rate of six percent (6%) per annum equal to the yield on then current Five-Year U.S. Treasury Indexannum, less the aggregate amount of Deficiencies theretofore collected by Landlord pursuant to the provisions of SECTION 25.4(CSection 14.4(c) for the same period, it being agreed that if before presentation of proof of such liquidated damages to any court, the Demised Premises or any part thereof shall have been relet by Landlord for the period (if any). In no event is Landlord entitled which otherwise would have constituted the unexpired portion of the Term or any part thereof, the amount of rent reserved upon such reletting shall be deemed prima facie to accelerated nondiscounted rentbe the fair and reasonable rental value for the part of the whole of the Demised Premises so relet during the term of reletting.
SECTION 25.5. Section 14.5 No termination of this Lease pursuant to Section 14.3(a), and no re-entry or taking of possession of, or by Landlord and/or reletting of, of the Demised Premises or any part thereof pursuant to SECTIONS 25.3(bSections 14.3(b) or 25.4, or any other provision hereof, or as permitted by applicable law14.4(b), shall relieve Tenant of its liabilities and obligations hereunderunder this Article 14, all of which shall survive such expiration, termination, re-entry, repossession or reletting except as otherwise specifically and expressly provided hereinreletting.
SECTION 25.6Section 14.6 Suit or suits for the recovery of damages, or for a sum equal to any installment or installments of basic rent and additional rent payable hereunder or any Deficiency or other sums payable by Tenant to Landlord pursuant to this Lease, may be brought by Landlord from time to time at Landlord's election, and nothing herein contained shall be deemed to require Landlord to await the date whereon this Lease and the Term would have expired had there been no event of default by Tenant, re-entry or termination.
Section 14.8 No failure by Landlord to insist upon the strict performance of any agreement, term, covenant or condition of this Lease or to exercise any right or remedy consequent upon a breach thereof, and no acceptance of full or partial basic rent and additional rent during the continuance of any such breach, shall constitute a waiver of any such breach or of such agreement, term, covenant or condition. To No agreement, term, covenant or condition of this Lease to be performed or complied with by Tenant, and no breach thereof, shall be or be deemed to be waived, altered or modified except by a written instrument executed by Landlord. No waiver of any breach shall affect or alter this Lease, but each and every agreement, term, covenant and condition of this Lease shall continue in full force and effect with respect to any other then existing or subsequent breach thereof.
Section 14.9 Each right and remedy of Landlord provided for in this Lease, and all documents executed by the extent not prohibited by law, Tenant hereby waives parties contemporaneously herewith shall be cumulative and releases all rights shall be in addition to every other right or remedy provided for in this Lease or now or hereafter conferred existing at law or in equity or by statute or otherwise which would have otherwise, and the effect of limiting exercise or modifying any beginning of the provisions ofexercise by Landlord of any one or more of the rights or remedies provided for in this Lease, or limiting such other documents or restricting Landlord's rignow or hereafter existing at law or in equity or by statute or otherwise, shall not preclude the simultaneous or later exercise by Landlord of any or all other such rights or remedies.
(a) Tenant shall pay to Landlord all costs and expenses, including, without limitation, reasonable attorneys' fees and disbursements, incurred by Landlord in any action or proceeding to which Landlord may be made a party by reason of any act or omission of Tenant.
(b) Tenant shall also pay to Landlord all cost
Appears in 1 contract
Sources: Lease Agreement (Strainwise, Inc.)
Events of Default Conditional Limitations Remedies Etc. SECTION 25.1. The occurrence of any one or more of the following events shall be an "EVENT OF DEFAULT" hereunder:
(a) if Tenant shall fail to pay any installment of any Fixed Rent or Impositions, or any part thereof, when the same shall become due and payable, and such failure shall continue for a period of five days; provided, that twice in any period of twelve consecutive months Tenant shall have ten days after written notice from Landlord to Tenant to cure such Default, except that the preceding provisions of this proviso (which provide for notice and ten days' grace period under certain circumstances) shall not apply to any failure of Tenant to pay, before the same becomes past- due or any penalty attaches or accrues on account of nonpayment or late payment, any Imposition which is a tax, assessment or other amount payable to a Governmental Authority, and provided further, that Tenant's late payment of a particular installment of any Imposition which is a tax, assessment or other amount payable to a Governmental Authority will not be deemed to constitute an Event of Default (although it will be deemed to constitute a Default) if Tenant paid such installment in full (together with any and all interest, penalties and other amounts payable with respect thereto) within five (5) days after Tenant first received a copy of the tax ▇▇▇▇ relating thereto or other written notice of the amount of and due date for such installment of Taxes;
(b) if Tenant shall fail to make any payment of any Rental (other than Fixed Rent or Impositions) required to be paid by Tenant hereunder when the same shall become due and payable, and such failure shall continue for a period of ten days after written notice from Landlord to Tenant to cure such Default;
(c) if Tenant shall fail to deliver to Landlord a certificate or other evidence reasonably satisfactory to Landlord of the existence of any new or renewal insurance policy required under this Lease on or prior to the date the same is required to be delivered to Landlord, and such failure shall continue for seven days after notice from Landlord (but only two Business Days after notice if Landlord's notice is given ten or fewer days prior to the expiration of the policy in question);
(d) if Tenant shall fail to observe or perform any of the terms, conditions, covenants or agreements of this Lease which is not specifically the subject of any of the preceding CLAUSES (a)-(c), inclusive, of this SECTION 25.1, and such failure continues for a period of thirty days after notice thereof by Landlord to Tenant specifying such failure (unless such failure requires work to be performed, acts to be done, or conditions to be removed which cannot, either by their nature or by reason of Unavoidable Delays, reasonably be performed, done or removed, as the case may be, within such 30-day period, in which case no Event of Default shall be deemed to exist as long as Tenant shall have commenced curing the same promptly after the first notice from Landlord and shall thereafter at all times prosecute the same to completion with reasonable diligence, subject only to Unavoidable Delays);
(e) if Tenant or Guarantor shall make an assignment for the benefit of creditors;
(f) if Tenant or Guarantor voluntarily shall file a case or petition under Title 11 of the United States Code or any other bankruptcy, insolvency, reorganization or similar law, or if any such case or petition is filed against Tenant or Guarantor and an order for relief is entered, or if Tenant or Guarantor shall file any petition or answer seeking, consenting to or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under present or any future federal bankruptcy code or any other present or future applicable federal, state or other statute or law, or shall admit in writing that it is bankrupt or insolvent, or shall seek or consent to or acquiesce in or suffer the appointment of any trustee, receiver, custodian, assignee, sequestrator, liquidator or other similar official of Tenant or Guarantor or of all or any substantial part of its properties or of the Premises or any interest therein of TenantTenant or Guarantor, or if Tenant or Guarantor shall take any action in furtherance of any action described in SECTION 25.1(e), this SECTION 25.1(f), or SECTION 25.1(g) hereof;
(g) if within ninety days after the commencement of any proceeding against Tenant or Guarantor seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy code or any other present or future applicable federal, state or other statute or law, such proceeding shall not have been dis misseddismissed, discontinued or vacated or if, within ninety days after the appointment, without the consent or acquiescence of TenantTenant or Guarantor, of any trustee, receiver, custodian, assignee, sequestrator, liquidator or other similar official of Tenant or Guarantor or of all or any substantial part of its properties or of the Premises or any interest therein of TenantTenant or Guarantor, such appointment shall not have been vacated or stayed on appeal or otherwise, or if, within ninety days after the expiration of any such stay, such appointment shall not have been vacated;
(h) if this Lease or all or any part of the estate or interest of Tenant hereunder or created hereby shall be assigned, subleased, transferred, mortgaged, encumbered or otherwise disposed of without compliance with the provisions of this Lease applicable thereto, and such transaction shall not be made to comply, or voided AB INITIOab initio, within thirty days after notice thereof from Landlord to Tenant;; or
(i) if a levy under execution or attachment shall be made against Tenant's interest or estate in the Premises or any part thereof and such execution or attachment shall not be vacated or removed by court order, bonding or otherwise within a period of sixty days; or
(j) if an Event of Default occurs under the Original Lease (and, if the definition of such Event of Default expressly requires that notice thereof be given or that a specific cure period therefor is provided, then such notice shall have been given and such cure period shall have elapsed).
SECTION 25.2. If an Event of Default shall occur, until such Event of Default shall have been completely cured Landlord may, in its sole discretion, exercise any or all rights and remedies available to Landlord hereunder or under applicable law (including, without limitation, proceeding by appropriate judicial proceedings, either at law or in equity, to mandate, enjoin or otherwise enforce the performance or observance by Tenant of the applicable provisions of this Lease, terminating this Lease and recovering damages for Tenant's breach hereof [including but not limited to any prepayment penalty incurred by Landlord under a Secured Loan as a result of the termination of this Lease, and brokerage commissions]), simultaneously or in such order as Landlord, in its discretion, may determine.
(a) If any Event of Default shall occur and Landlord, at any time thereafter during the continuance of such Event of Default, at its option, gives written notice to Tenant stating that this Lease and the Term or any Renewal Terms shall expire and terminate on the date specified in such notice, which date shall be not less than ten days after the giving of such notice, then this Lease, the Term, any Renewal Terms, and all rights of Tenant under this Lease (including, without limitation, all rights relating to any and all Options) shall expire and terminate on the date specified in such notice as if such date were the date herein definitely fixed for the expiration of the Term or any Renewal Terms unless such Event of Default shall be sooner cured. Upon any termination of this Lease pursuant to this SECTION 25.3, Tenant immediately shall quit and surrender the Premises, but Tenant shall remain liable for damages as hereinafter provided. Anything contained herein to the contrary notwithstanding, if such termination shall be stayed or enjoined by order of any court having jurisdiction over any proceeding described in either of SECTIONS 25.1(f) or 25.1(g) hereof, or by federal or state statute, then, following the expiration or vacation of any such stay or injunc tion, or if the trustee appointed in any such proceeding, Tenant, or Tenant as debtor-in-possession shall fail to assume Tenant's obligations under this Lease within the period prescribed therefor by law or within sixty days after entry of the order for relief or as may be allowed by the court, or if said trustee, Tenant or Tenant as debtor-in-possession shall fail to provide adequate protection of Landlord's right, title and interest in and to the Premises or adequate assurance of the complete and continuous future performance of Tenant's obligations under this Lease as provided in SECTION 25.16 hereof, Landlord shall have the right, at its election, to terminate this Lease on five days' notice to Tenant, Tenant as debtor-in-possession, or said trustee, and upon the expiration of said five-day period this Lease shall cease and expire as aforesaid and Tenant, Tenant as debtor-in-possession, and said trustee shall immediately quit and surrender the Premises as aforesaid.
(b) If an Event of Default shall occur and all applicable cure periods have expired, Landlord, without notice, may (unless such Event of Default shall have been completely cured) dispossess Tenant by summary proceedings or by any suitable action or proceeding at law, whether or not the Lease has terminated.
SECTION 25.4. If this Lease shall be terminated as provided in SECTION 25.3(a) or Tenant shall be dispossessed as provided in SECTION 25.3(b), then:
(a) Landlord or Landlord's agents or servants servants, may immediately or at any time thereafter re-enter the Premises and remove therefrom Tenant, its agents, employees, servants, licensees, and any subtenants and other persons holding or claiming by, through or under Tenant, and all or any of its or their property, without being liable to indictment, prosecution or damages therefor, and repossess and enjoy the Premises, together with all additions, alterations and improvements thereto;
(b) All of the right, title, estate and interest of Tenant in and to (i) the Premises, all Buildings (including, without limitation, all Equipment), all changes, additions and alterations therein, and all renewals and replacements thereof, (ii) all rents, issues and profits of the Premises, or any part thereof, whether then accrued or to accrue, (iii) all insurance policies and all insurance monies paid or payable thereunder, and (iv) subject to SECTION 25.17, the entire undisbursed balance of any funds (including the interest, if any, accrued thereon) then held by the Landlord, shall automatically pass to, vest in and belong to Landlord, without further action on the part of either party, free of any claim thereto by Tenant (and Landlord will not thereby be deemed to have assumed, or otherwise be or become subject to, any of Tenant's obligations or liabilities thereunder or with respect thereto), subject, however, to the rights, if any, of any Secured Lenders;
(c) Tenant shall immediately pay to Landlord all Rental payable by Tenant under this Lease to the date upon which this Lease and the Term or any exercised Renewal Term shall have expired and come to an end or to the date of re-entry upon the Premises by Landlord, as the case may be;
(d) Landlord may repair and alter the Premises in such manner as Landlord may deem necessary or advisable without relieving Tenant of any liability under this Lease or otherwise affecting any such liability, and let or relet the Premises or any parts thereof for the whole or any part of the remainder of the Term or for a longer period, in Landlord's name or as agent of Tenant, and out of any rent and other sums collected or received as a result of such reletting Landlord shall: (i) first, pay to itself the reasonable cost and expense of terminating this Lease, re-entering, retaking, repossessing, completing construction of and repairing and altering the Premises, or any part thereof, and the reasonable cost and expense of removing all persons and property therefrom, including in such costs reasonable brokerage commissions, legal expenses and attorneys' fees and disbursements; (ii) second, pay to itself the reasonable cost and expense sustained in securing any new tenants and other occupants, including in such costs reasonable brokerage commissions, legal expenses and attorneys' fees and disbursements and other expenses of preparing the Premises for reletting, and, if Landlord shall maintain and operate the Premises, the cost and expense of operating and maintaining the Premises; and (iii) third, pay to itself any balance remaining on account of the liability of Tenant to Landlord. Landlord in no way shall be responsible or liable for any failure to relet the Premises or any part thereof, or for any free rent or other concessions granted to any tenants in connection with any such reletting, or for any failure to collect any rent due on any such reletting, and no such failure to relet or to collect rent, or concessions granted, shall operate to relieve Tenant of any liability under this Lease or to otherwise affect any such liability; and in no event shall Tenant be entitled to receive any excess of such annual rents over the sums payable by Tenant to Landlord hereunder, provided, however, Landlord shall use reasonable efforts to mitigate its damages for any Tenant default under the Lease;
(e) Tenant shall be liable for and shall pay to Landlord, as damages, any deficiency ("DEFICIENCY") between (i) the Rental (including, without limitation, Fixed Rent, Impositions, and all other amounts comprising Rental hereunder) reserved in this Lease for the period from the time of the termination hereof or dispossession of Tenant hereunder through the date on which the Term (or any exercised Renewal Term) would have ended had no such termination or dispossession occurred and (ii) the net amount, if any, of rents collected under any reletting effected pursuant to the provisions of SECTION 25.4(d) for any part of such period (which net amount shall be determined after deducting from the rents collected under any such reletting all of the payments to Landlord described in SECTION 25.4(d) hereof); any such Deficiency shall be paid in installments by Tenant on the respective days specified in this Lease for payment of installments or other payments of Rental, and Landlord shall be entitled to recover from Tenant each Deficiency install ment as the same shall arise, and no suit to collect the amount of the Deficiency for any installment period shall prejudice Landlord's right to collect the Deficiency for any subsequent installment period by a similar proceeding; and
(f) Whether or not Landlord shall have collected any Deficiency installments as aforesaid, Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord, on demand, in lieu of any further Deficiencies, as and for liquidated and agreed final damages (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), a sum equal to the amount by which the Rental reserved in this Lease for the period following termination or dispossession exceeds the then fair market rental value of the Premises for the same period, both discounted to present worth at the rate per annum equal to the yield on then current Five-Year U.S. Treasury Index, less the aggregate amount of Deficiencies theretofore collected by Landlord pursuant to the provisions of SECTION 25.4(C25.4(c) for the same period (if any). In no event is Landlord entitled to accelerated nondiscounted rent.
SECTION 25.5. No taking of possession of, or reletting of, the Premises or any part thereof pursuant to SECTIONS 25.3(b) or 25.4, or any other provision hereof, or as permitted by applicable law, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such repossession or reletting except as otherwise specifically and expressly provided herein.
SECTION 25.6. To the extent not prohibited by law, Tenant hereby waives and releases all rights now or hereafter conferred by statute or otherwise which would have the effect of limiting or modifying any of the provisions of, or limiting or restricting Landlord's rigrights or remedies under, this ARTICLE 25. Tenant shall execute, acknowledge and deliver any instruments which Landlord may reasonably request, whe
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Sources: Lease Agreement (Coach Inc)