Remedies on Default. A. Florida Housing shall have the right to exercise any of the following remedies upon an Event of Default: (i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower; (ii) cease, in whole or in part, making any further payments under this Agreement; (iii) terminate this Agreement; (iv) disallow all or part of the cost of the activity or action not in compliance; (v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced; (vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower; (vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms; (viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement; (ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder; (x) exercise any other rights and remedies that may be available under the Loan Documents; and (xi) exercise any other rights and remedies that may be available under law or in equity. B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto. C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default. D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Subaward Agreement
Remedies on Default. A. Florida Housing Whenever any Event of Default ------------------- shall have happened and be continuing, any one or more of the following rights and remedies may be exercised:
(a) If acceleration of the Bonds has occurred pursuant to Section 7.03 of the Indenture, the Trustee may declare all Loan Payments to be immediately due and payable, whereupon the same shall become immediately due and payable. If the Trustee elects to exercise the remedy afforded in this Section 7.2(a) and accelerates all Loan Payments, the amount then due and payable by the Borrower as accelerated payments shall be the sum of (1) the aggregate principal amount of the Bonds then outstanding, (2) all unpaid interest on the Bonds accruing to the date set pursuant to the Indenture, (3) the amount of the redemption premium, if any, then applicable to the Bonds, (4) all unpaid Trustee, Registrar, Authenticating Agents, Remarketing Agent and Paying Agent fees and expenses accruing to such date, and (5) any amount then due the Issuer hereunder.
(b) The Trustee may have access to and inspect, examine and make copies of, the financial books, records and accounts of the Borrower pertaining to the Project Facilities.
(c) The Trustee may exercise any remedy provided for in the Indenture.
(d) The Trustee may take whatever action at law or in equity may appear necessary or desirable to collect any sums then due and thereafter to become due hereunder or to enforce the observance or performance of any covenant, condition or agreement of the Borrower hereunder. Except in the case of an Event of Default pursuant to Section 7.01(g) or (h) of the Indenture, the Letter of Credit Bank shall have the right to exercise any of direct the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default to be exercised by the Borrower;
(ii) cease, in whole or in part, making Trustee. The Trustee shall promptly notify the Letter of Credit Bank of any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] failure of the Borrower to make the Loan Payments required by Section 4.1 hereof. Any amounts collected pursuant to action taken by the Trustee under this Section shall be paid into the Bond Fund and require applied in accordance with the provisions of the Indenture. Notwithstanding any contrary provision in the Bond Documents, the Issuer shall have the right to take any action or make any decision with respect to proceedings for indemnity against the liability of the Issuer and for collection or reimbursement from sources other than moneys or property held under the Bond Documents. Whenever any Event of Default shall have occurred and be continuing which results from failure of the Borrower to provide pay to or perform for an alternate entitythe Issuer any payment, acceptable in advance by Florida Housingcovenant, agreement or warranty not assigned to act in its steadthe Trustee, pending appointment of a replacement [general partner] [member] under the organizational documents of Issuer may (but need not) proceed directly against the Borrower;
(vii) draw upon Borrower and apply may take any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under action at law or in equity.
B. In addition equity which it may deem necessary or desirable to collect or enforce such payment or performance in default. The Issuer shall promptly notify the Trustee and the Letter of Credit Bank of any such action; however, the failure of the Issuer to give such notice shall not affect the validity of any such action. The provisions of this Section are subject to the remedies described in Section 10.2A above, further limitation that the Borrower shall, upon demand rescission by Florida Housing following the Trustee of its declaration that all of the Bonds are immediately due and payable also shall constitute an Event annulment of Default, any corresponding declaration made pursuant to paragraph (ia) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement Section and (ii) pay to Florida Housing an amount equal to a waiver and rescission of the costs consequences of that declaration and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with of the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer to which that declaration has been made, provided that no such waiver or rescission shall extend to or affect any subsequent or other default or impair any right consequent thereon. Unless the enforcement Letter of remedies upon Credit Bank is in default pursuant to Section 7.01(g) or (h) of the occurrence Indenture, any rescission of an Event a declaration of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise acceleration shall be subject to the Event prior written consent of Defaultthe Letter of Credit Bank.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Loan Agreement (Peco Ii Inc)
Remedies on Default. A. Florida Housing Whenever any Event of Default shall have occurred, Lender shall have the right right, at its sole option without any further demand or notice, to exercise take any one or any combination of the following remedies upon an Event of Defaultremedial steps which are accorded to Lender by applicable law:
(ia) temporarilyby notice to Borrower, wholly or partiallydeclare the entire unpaid principal amount of the Loan then outstanding, suspend making payments of Exchange Program Funds all interest accrued and unpaid thereon and all amounts payable under this Agreement pending correction to be forthwith due and payable, whereupon the Loan, all such accrued interest and all such amounts shall become and be forthwith due and payable, without presentment, notice of the deficiency dishonor, protest or default further notice of any kind, all of which are hereby expressly waived by the Borrower;
(iib) ceasetake possession of the Property wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the Property for use over a term in whole a commercially reasonable manner, all for the account of Lender, provided that Borrower shall remain directly liable for the deficiency, if any, between the rent or in partother amounts paid by a lessee or sublessee of the Property pursuant to such lease or sublease during the same period of time, making any further payments under this Agreementafter deducting all costs and expenses, including reasonable attorneys' fees and expenses, incurred with respect to the recovery, repair and storage of the Property during such period of time;
(c) take possession of the Property wherever situated, without any court order or other process of law and without liability for entering the Premises, and sell the Property in a commercially reasonable manner. All proceeds from such sale shall be applied in the following manner: FIRST, to pay all proper and reasonable costs and expenses associated with the recovery, repair, storage and sale of the Property, including reasonable attorneys' fees and expenses; SECOND, to pay (i) Lender the amount of all unpaid Loan Payments or other obligations (whether direct or indirect owed by Borrower to Lender), if any, which are then due and owing, together with interest and late charges thereon, (ii) Lender the then applicable Prepayment Amount (taking into account the payment of past-due Loan Payments as aforesaid), plus a pro rata allocation of interest, at the rate utilized to calculate the Loan Payments, from the next preceding due date of a Loan Payment until the date of payment by the buyer, and (iii) terminate this Agreement;
(iv) disallow all or part any other amounts due hereunder, including indemnity payments, taxes, charges, reimbursement of any advances and other amounts payable to Lender hereunder; and THIRD, to pay the remainder of the cost sale proceeds, purchase moneys or other amounts paid by a buyer of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services Property to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(viid) draw upon and apply any escrows and/or reserve accounts in accordance with their termsproceed by appropriate court action to enforce specific performance by Borrower of the applicable covenants of this Agreement or to recover for the breach thereof, including the payment of all amounts due from Borrower. Borrower shall pay or repay to Lender all costs of such action or court action, including, without limitation, reasonable attorneys' fees;
(viiie) call upon exercise all rights and remedies under the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this AgreementMortgage;
(ixf) exercise any take whatever action at law or in equity that may appear necessary or desirable to enforce its rights it may have under with respect to the Recapture Mortgage (in the event Property. Borrower shall pay or repay to Lender all costs of a default under this Agreement such action or the Loan Documents) and the Assignment Instrumentscourt action, including but not limited to foreclosure of the liens thereunderincluding, without limitation, reasonable attorneys' fees;
(xg) exercise any other rights and remedies that may be available with or without notice to Borrower, submit one or more drafts under the Loan DocumentsLetter of Credit or any Substitute Letter of Credit for any amounts due hereunder; and
(xih) exercise any other and all rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) Tax-Exempt Loan Agreement. Notwithstanding any other remedy exercised hereunder, Borrower shall remain obligated to pay to Florida Housing an amount equal to Lender any unpaid portion of the costs Prepayment Amount and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect theretoTax-Exempt Prepayment Amount.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Taxable Rate Loan Agreement (International Absorbents Inc)
Remedies on Default. A. Florida Housing shall have On the right to occurrence of any Event of Default, the Bank may exercise any one or more of the following remedies upon an Event of Defaultas the Bank, in it sole discretion, shall elect:
(ia) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction Declare the unpaid portion of the deficiency then outstanding principal component of the Installment Payments immediately due and payable without notice or default by demand to the BorrowerTown or the YMCA;
(iib) cease, in whole Proceed by appropriate court action to enforce performance by the Town of the applicable covenants of this Contract or in part, making any further payments under this Agreementto recover for the breach thereof;
(iiic) terminate this Agreement;
(iv) disallow Exercise all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available of a secured party or creditor under the Loan DocumentsUniform Commercial Cod e of the State and the general laws of the State with respect to the enforce ment of the security interest granted or reserved under this Contract including, without limitation, to the extent per mitted by law, reenter and take possession of the Pro ject without any court order or other process of law and without liability for entering t he premises and lease, sublease the Project or sell or make other disposition of the Project in a commercially reasonable manner for the account of the Town, and apply the pr oceeds of any such sale, lease, sublease or other disposition, after deducting all costs and expenses, including court costs and attorneys’ fees, incurr ed with the recovery, repair, storage and other sale, lease, sublease or other disposition, toward the balance due under t his Contr act and, thereafter , sh all pay any remaining proceeds to the YMCA; andor
(xid) exercise any other rights and remedies that may be available under law Enforce its security interest or in equity.
B. In addition direct the Deed of Trust Trustee to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower institute foreclosure proceedings under the terms Deed of this Agreement Trust and (ii) pay to Florida Housing an amount equal to sell the costs and feesProject. NOTW ITHSTAND ING ANY OTH ER PR OVISIONS IN THIS CONTRACT, including attorneys’ fees and costsIT IS THE INTENT OF THE PART IES HERETO TO COMPLY WITH SECTI ON 160A-20 OF THE GENERAL STATUTES OF NORTH ▇▇▇▇▇ ▇▇▇ , incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect theretoAS AMENDED . NO DEF ICIENCY JUDGMENT MAY BE ENTERED AGA INST THE TOWN IN F AVOR OF THE BANK IN VI OLATI ON OF SECTI ON 160A-20 OF THE GENERAL STATUTES OF NORTH ▇▇▇▇▇ INA , AS AMENDED INCLUD ING , WITHOUT LIMITATION, ANY DEFIC IENCY JUDGMENT FOR AMOUNTS THAT MAY BE OWED UN DE R T HIS CONTRACT WHEN THE SALE OF ALL OR ANY PORT ION OF THE PROJECT IS INSUFF ICIENT TO PROD UC E EN OUG H M ONE Y TO PAY IN FUL L AL L RE MAIN ING OBL IGATION S UN DE R TH IS CONTRACT.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Installment Financing Contract
Remedies on Default. A. Florida Housing (a) Upon any one or more events of default, Landlord may, at its option, at any time thereafter, give written notice to Tenant specifying the event or events of default and stating that this Lease and the term demised shall expire and terminate on the date specified in the notice, which shall be at least thirty (30) days after the giving of the notice. Upon the date specified in the notice, this Lease and the term demised and all rights of Tenant under this Lease shall expire and terminate. The expiration or termination of this Lease by Landlord shall not relieve Tenant of its liability and obligations under this Lease, which shall survive.
(b) Upon termination of this Lease pursuant to this Section, Tenant shall quit and peacefully surrender the Premises and the Improvements to Landlord. Landlord, upon, or at any time after, the expiration or termination of this Lease, without additional notice and without prejudice to any other rights and remedies it shall have at law or in equity, may re-enter the right to exercise Premises and Improvements, and remove from them Tenant, its agents, employees, servants, licensees, and subtenants and other persons, firms or corporations and all or any of its or their property, either by summary dispossess proceedings or by any suitable action or proceeding at law or in equity, or by force or otherwise, without being liable to indictment, prosecution or damages for such action, and may repossess and have, hold and enjoy the following remedies upon an Event Premises and the Improvements.
(c) Upon Landlord's termination of Defaultthis Lease, re-entry of the Premises and Improvements or dispossession of the Tenant by summary proceedings or otherwise:
(i) temporarilyThe rent shall become due and payable and be paid up to the time of termination, wholly re-entry, or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrowerdispossession;
(ii) ceaseLandlord at any time and from time to time may relet the Premises and Improvements or any part or parts thereof, either in whole the name of the Landlord 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 term of this Lease and on such conditions, including, without limitation, concessions of free rent and alterations of the Premises and Improvements, as Landlord in partits sole discretion may determine, making any further payments under this Agreementand Landlord may collect and receive all rents and income from them;
(iii) terminate this AgreementNotwithstanding any present or future law, statute, or judicial decision, Landlord shall not be responsible or liable for any failure or refusal to relet the Premises and Improvements or any part of them, or for any failure to collect any rent due upon any reletting of them;
(iv) disallow all Whether or not the Premises or Improvements or any part of them shall have been relet, Tenant, until the cost end of what would have been the activity term of this Lease in the absence of expiration or action not termination, shall be liable to and shall pay Landlord, as and for liquidated and agreed current damages (the "current damages") for Tenant's default, the amount of all rent (including prepaid base rent, which Landlord shall retain) which would have been payable under this Lease by Tenant if it were still in complianceeffect, less the net proceeds of any reletting pursuant to the provisions of this Section, after deducting all Landlord's expenses in the reletting, including, without limitation, all repossession costs, brokerage and management commissions, operating expenses, legal expenses, reasonable attorney's fees, alteration costs, and expenses of preparation for reletting;
(v) require that Tenant shall pay the Developercurrent damages to Landlord, the Managerand Landlord shall be entitled to recover them from Tenant, the Contractor by separate action, actions or any other party providing services to the Borrower be replaced;proceedings, at such time or times when rent would have been payable under this Lease if it were still in effect; and
(vi) remove In lieu of collecting the [General Partner] [Member] current damages, Landlord, at its option, shall be entitled to retain, as and for liquidated and agreed final damages for Tenant's default, the full amount of the Borrower prepaid base rent and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;such other rent as Landlord shall have collected from Tenant.
(viid) draw upon Nothing in this Article shall limit or prejudice the right of Landlord to prove and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing obtain as liquidated damages an amount equal to the costs and feesmaximum allowed by any statute or rule of law in effect at the time those damages are to be proved, including attorneys’ fees and costswhether or not that amount is greater, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documentsequal to, or otherwise afforded less than the amount provided by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any orderthis Article. Section 26.03.
Appears in 1 contract
Remedies on Default. A. Florida Housing Whenever any Event of Default shall have happened and be subsisting, the right to exercise Issuer, or the Trustee as provided in the Indenture, may take any one or more of the following remedies remedial steps:
(a) with the prior written consent of the owners of a majority in principal amount of the Bonds outstanding, declare all installments of rent payable under Section 5.3 hereof for the remainder of the Lease Term to be immediately due and payable, whereupon the same shall become immediately due and payable. If the Issuer or the Trustee elects to exercise the remedy afforded in this Section 10.2(a) and accelerates all rents payable under Section 5.3 hereof for the remainder of the Lease Term, the amount then due and payable as accelerated rents shall be the sum of (1) the aggregate principal amount of the outstanding Bonds, and (2) all interest on the Bonds accruing to the date of maturity by declaration;
(b) with the prior written consent of the owners of a majority in principal amount of the Bonds outstanding, re-enter and take possession of the Project without terminating this Lease and without any liability to the Lessee for such entry and repossession, and sublease the Project for the account of the Lessee, holding the Lessee liable for the difference in the rents and other amounts payable by such sublessee in such subleasing and the rents and other amounts payable by the Lessee hereunder;
(c) with the prior written consent of the owners of a majority in principal amount of the Bonds outstanding, terminate the Lease; (provided, however, that upon such termination, the options of the Lessee to purchase the Project pursuant to the provisions of Article XI hereof and the obligations of the Lessee to make the rental payments pursuant to Section 5.3 hereof and purchase the Project pursuant to Section 12.1 hereof contained therein shall survive such termination), exclude the Lessee from possession of the Project and use its best efforts to lease the Project to another for the account of the Lessee, holding the Lessee liable for all rent and other payments due up to the effective date of such leasing;
(d) with the prior written consent of the owners of a majority in principal amount of the Bonds outstanding, require accounting books and records of the Lessee pertaining exclusively to the Project only for an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds Default under this Agreement pending correction of the deficiency or default by the BorrowerSection 10.1(a);
(iie) ceasewith the prior written consent of the owners of a majority in principal amount of the Bonds outstanding, in whole take whatever action at law or in partequity may appear necessary or desirable to collect the rents then due, making or to enforce performance and observance of any further payments obligation, agreement or covenant of the Lessee under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan DocumentsLease; and
(xif) with the prior written consent of the owners of a majority in principal amount of the Bonds outstanding, exercise any other rights and remedies that may be available under law provided for in the Indenture, or in equity.
B. In addition the Uniform Commercial Code of the State of Georgia. Any amounts collected with respect to rent pursuant to action taken under this Section shall be paid into the remedies described Bond Fund and applied in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection accordance with the Event provisions of Default and/or the exercise Indenture and after Payment in Full of remedies with respect thereto.
C. Florida Housing may defer the enforcement Bonds and the payment of remedies upon the occurrence of any costs occasioned by an Event of Default for such period as it determines appropriatehereunder, if it determines that [any excess moneys in the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise Bond Fund shall be returned to the Event Lessee as an overpayment of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies rent. Any enforcement of recovery under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each Section shall be cumulative limited from and against the Lessee only and no claim or recovery may be exercised concurrentlymade against any member, independentlypartner, officer, director or successively, in any orderother beneficial owner of the Lessee.
Appears in 1 contract
Sources: Lease Agreement
Remedies on Default. A. Florida Housing Whenever any Event of Default shall have happened and be continuing, the Bond Trustee, as the assignee of the Issuer, may take one or any combination of the following remedial steps:
(a) If the Bond Trustee has declared the principal of the Bonds and the interest accrued thereon to be due and payable, declare the principal of the Base Rental Payments and all interest accrued thereon to be immediately due and payable and the same shall thereupon be immediately due and payable;
(b) Give the Corporation written notice of intention to terminate this Lease Agreement on a date specified therein, which date shall not be earlier than 10 days after such notice is given, and if all Events of Default have not then been cured, on the date so specified, the Corporation’s rights to possession of the Facility shall cease and this Lease shall thereupon be terminated, and the Issuer may re-enter and take possession of the Facility; or
(c) Without terminating this Lease Agreement, re-enter the Facility or take possession thereof pursuant to legal proceedings or pursuant to any notice provided for by law, and use reasonable diligence to relet the Facility, or parts thereof, for such term or terms and at such rental and upon such other terms and conditions as the Issuer may deem in the best interests of the Bondholders, with the right to exercise make alterations and repairs to the Facility, and no such re- entry or taking of possession of the Facility by the Issuer shall be construed as an election on the Issuer’s part to terminate this Lease Agreement, and no such re-entry or taking of possession by the Issuer shall relieve the Corporation of its obligation to pay Base Rental Payments or Additional Payments (at the time or times provided herein), or of any of its other obligations under this Lease Agreement, all of which shall survive such re-entry or taking of possession, and the following remedies upon an Event Corporation shall continue to pay the Base Rental Payments and Additional Payments provided for in this Lease Agreement until the end of Default:the term, whether or not the Facility shall have been relet, less the net proceeds, if any, of any reletting of the Facility after deducting all of the Issuer’s reasonable expenses in or in connection with such reletting, including without limitation all repossession costs, brokerage commissions, legal expenses, expenses of employees, alteration costs and expenses of preparation for reletting; or
(id) temporarilyAt any time after the termination of this Lease Agreement pursuant to Subsection (b), wholly whether or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of not the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making Issuer shall have collected any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developercurrent damages, the ManagerIssuer shall, at its option, be entitled to recover from the Contractor or any other party providing services Corporation, and the Corporation will pay to the Borrower be replaced;
(vi) remove Issuer on demand, as and for liquidated and agreed final damages for the [General Partner] [Member] Corporation’s default and in lieu of all current damages beyond the Borrower and require the Borrower to provide for an alternate entitydate of such demand, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to all unpaid installments of rent (as hereinafter defined).
(e) Exercise any or all the costs rights of and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect theretoregard to any personal property included in the Facility available to a secured creditor under the Kansas UCC.
C. Florida Housing (f) Have reasonable access to and inspect, examine and make copies of the books and records and any and all accounts and data of the Corporation during regular business hours of the Corporation if reasonably necessary in the opinion of the Bond Trustee;
(g) Request that the Master Trustee declare the principal of the Related Master Notes and all interest due thereon to be due and payable or request that the Master Trustee exercise any other remedy under the Master Indenture; or
(h) Take whatever action at law or in equity may defer appear necessary or desirable to collect the enforcement Base Rental Payments or Additional Payments then due and thereafter to become due, or to enforce performance and observance of remedies upon any obligation, agreement or covenant of the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies Corporation under this Lease Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Lease Agreement
Remedies on Default. A. Florida Housing In the event of any such default or breach by Sublessee, Sublessor may at any time thereafter, with or without notice or demand and without limiting Sublessor in the exercise of any right or remedy which Sublessor may have by reason of such default or breach:
(a) Terminate Sublessee's right to possession of the Premises by any lawful means, in which case this Sublease shall terminate and Sublessee shall immediately surrender possession of Premises to Sublessor. In such event Sublessor shall be entitled to recover from Sublessee all damages incurred by Sublessor by reason of Sublessee's default including, but not limited to, the cost of recovering possession of the Premises; expenses of reletting, including necessary renovation and alteration of the Premises, reasonable attorney's fees, and any real estate commission actually paid; and the worth at the time of award by the court having jurisdiction thereof of the amount by which the unpaid rent for the balance of the term after the time of such award exceeds the amount of such rental loss for the same period that Sublessee proves could be reasonably avoided. Unpaid installments of rent or other sums shall bear interest from the date due at the rate of eighteen (18%) percent per annum. In the event Sublessee shall have abandoned the Premises, Sublessor shall have the option of (i) retaking possession of the Premises and recovering from Sublessee the amount specified in this Article 13.2(a) or (ii) proceeding under Article 13.2(b).
(b) Maintain Sublessee's right to possession in which case this Sublease shall continue in effect whether or not Sublessee shall have abandoned the Premises. In such event, Sublessor shall be entitled to enforce all of Sublessor's rights and remedies under this Sublease, including the right to recover the rent as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Sublessor under the laws of judicial decisions of the state wherein the Premises are located.
(d) In the event this Sublease terminates by reason of Sublessor's re-entry under the terms and covenants contained in this Sublease or by the ejectment of Sublessee by summary proceedings or otherwise, or after the abandonment of the premises by Sublessee, or for any other reason, it is hereby agreed Sublessee shall remain liable and shall pay in monthly installments the rent which accrues subsequent to any such transaction. Sublessee expressly agrees to pay as damages for the breach of the covenants herein contained, the difference between the rent due hereunder and the rent collected and received, if any, by Sublessor during the remainder of the unexpired term, as the amounts of such difference or deficiency shall from time to time be ascertained and written notice thereof given to Sublessee at its last known address. Unless otherwise specifically acknowledged by Sublessor, in writing, no exercise of right hereunder by Sublessor shall be deemed an acceptance of surrender of the Premises or a termination of Sublessee's liability for payment of money due hereunder.
(e) Upon default and after expiration of all applicable grace periods, Sublessee hereby irrevocably appoints Sublessor as agent and attorney-in-fact of Sublessee, to enter upon the Premises in event of default by Sublessee in the payment of any rent herein reserved, or in the performance of any term, covenant or condition herein contained to be kept or performed by Sublessee, and to remove any and all furniture and personal property whatsoever situated upon the Premises. Any and all property which may be removed from the Premises by the Sublessor pursuant to the authority of this Sublease or law, to which Sublessee is or may be entitled, may be handled, removed or stored by Sublessor at the risk, cost and expense of Sublessee, and Sublessor shall in no event be responsible for the value, preservation or safekeeping thereof. Sublessee shall pay to Sublessor, upon demand, all expenses incurred in such removal and all storage charges against such property so long as the same shall be in Sublessor's possession or under Sublessor's control. Sublessor may place such property in storage for the account of, and at the expense of Sublessee, and if Sublessee fails to pay the cost of storing such property after it has been stored for a period of ninety (90) days or more, Sublessor may sell any or all of such property in such manner and at such times and places as Sublessor in its sole discretion may deem proper, without notice to or demand upon Sublessee for all payment of any part of such charges or the removal of any such property and shall apply the proceeds of such sale first to the cost of expenses of such sale, including reasonable attorney's fees; second, to the payment of the costs and charges of storing property; third, to the payment of any other sums of money which may then or thereafter be due to Sublessor from Sublessee under any of the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developerterms hereof; and fourth, the Managerbalance, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housingif any, to act in its steadSublessee. The removal and storage of Sublessee's property, pending appointment as above provided, shall not constitute a waiver of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equitySublessor's lien thereon.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Remedies on Default. A. Florida Housing Whenever any Event of Default shall have happened and be continuing, the right State, with the consent of the Trustee, may take one or any combination of the following remedial steps: terminate the Sublease Term and give notice to exercise the Sublessee to immediately vacate the Leased Property in the manner provided in Section 3.02(b) hereof; sell or lease its interest in all or any portion of the Leased Property; recover any of the following remedies upon an Event from the Sublessee that is not recovered pursuant to subsection (b) of Default:
(ithis Section: the portion of Rent payable pursuant to Section 3.02(b)(ii) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow hereof; all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] amounts due under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts Sublessee’s Matching Moneys Bond in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms of the Sublessee’s Matching Moneys Bond; and the remaining terms portion of any Base Rent or Matching Moneys Installment Payments payable by the Sublessee for the then current Fiscal Year that has been specifically appropriated by the Sublessee’s Governing Body, regardless of when the Sublessee vacates the Leased Property; and the portion of the Additional Rent for the then current Fiscal Year that has been specifically appropriated by the Sublessee’s Governing Body, but only to the extent such Additional Rent is payable prior to the date, or is attributable to the use of the Leased Property prior to the date, the Sublessee vacates the Leased Property; enforce any provision of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment InstrumentsSublease by equitable remedy, including including, but not limited to foreclosure to, enforcement of the liens thereunder;
(x) exercise any restrictions on assignment, encumbrance, conveyance, transfer or succession under Article XIII hereof by specific performance, writ of mandamus or other rights injunctive relief; and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under take whatever action at law or in equity.
B. In addition equity may appear necessary or desirable to enforce its rights in and to the remedies described in Section 10.2A aboveLeased Property under this Sublease, the Borrower shallsubject, upon demand by Florida Housing following an Event of Defaulthowever, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount limitations on the obligations of Exchange Program Funds previously disbursed to the Borrower Sublessee under the terms of this Agreement Sections 6.05 and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto12.03 hereof.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Sublease Agreement
Remedies on Default. A. Florida Housing Upon the happening of any Event of Default, Lender shall have the right right, in addition to any other rights or remedies available to Lender under the Mortgage or any of the other Loan Documents or under applicable Law, to exercise any one or more of the following remedies upon rights and remedies:
(a) Lender may accelerate all of Borrower’s Obligations under the Loan Documents whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or intention to accelerate, presentment or demand for payment, protest or notice of nonpayment or dishonor, or notices or demands of any kind or character (all of which are hereby waived by Borrower).
(b) Lender may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property.
(c) Lender may set off the amounts due Lender under the Loan Documents against any and all accounts, credits, money, securities or other property of Borrower now or hereafter on deposit with, held by or in the possession of Lender to the credit or for the account of Borrower, without notice to or the consent of Borrower.
(d) Lender may enter into possession of the Property and perform any and all work and labor necessary to complete any construction at the Property, including any construction of tenant improvements or other improvements required of the Borrower by any Leases, and to employ watchmen to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Note and shall be secured by the Mortgage and the other Loan Documents securing the Obligations. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an Event interest, to complete the work in the name of DefaultBorrower, and hereby empowers said attorney or attorneys, in the name of Borrower or Lender:
(i) temporarily, wholly or partially, suspend making payments To use any funds of Exchange Program Funds under this Agreement pending correction Borrower including any balance which may be held by Lender and any funds (if any) which may remain unadvanced hereunder for the purpose of the deficiency or default by the Borrowercompleting any construction;
(ii) ceaseTo make such additions and changes and corrections to any plans and specifications as shall be necessary or desirable in the judgment of Lender to complete any construction, including any construction performed in whole connection with tenant improvements or in part, making other improvements required of the Borrower by any further payments under this AgreementLeases;
(iii) terminate this AgreementTo employ such contractors, subcontractors, agents, architects and inspectors as shall be necessary or desirable for said purpose;
(iv) disallow To pay, settle or compromise all existing bills and claims which are or part may be liens against the Property, or may be necessary or desirable for the completion of the cost work or the clearance of title to the activity or action not in complianceProperty;
(v) require that To execute all applications and certificates which may be required in the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replacedname of Borrower;
(vi) remove the [General Partner] [Member] of the Borrower To enter into, enforce, modify or cancel Leases and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;fix or modify Rents on such terms as Lender may consider proper
(vii) draw upon To file for record, at Borrower’s cost and apply expense and in Borrower’s name, any escrows and/or reserve accounts notices of completion, notices of cessation of labor, or any other notices that Lender in accordance with their terms;its sole and absolute discretion may consider necessary or desirable to protect its security; and
(viii) call upon To do any and every act with respect to any such construction which Borrower may do in its own behalf. It is understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked. Said attorney-in-fact shall also have the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms power to prosecute and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement defend all actions or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing proceedings in connection with any construction at the Event Property, including any construction of Default and/or tenant improvements or other improvements required of the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] Borrower by any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable lawLeases, and each shall be cumulative to take such actions and to require such performance as Lender may be exercised concurrently, independently, or successively, in any orderdeem necessary.
Appears in 1 contract
Sources: Term Loan Agreement (Inland Real Estate Income Trust, Inc.)
Remedies on Default. A. Florida Housing In the event of a default, the Lease may be terminated at the option of the Lessor by notice in writing to ▇▇▇▇▇▇. The notice of termination may be included in a notice of failure of compliance given under Paragraph 19. If the Leased Premises is abandoned by Lessee in connection with a default, termination shall be automatic and without notice. If the Lease is terminated for any reason, ▇▇▇▇▇▇’s liability to Lessor for damages for breach shall survive such termination, and the rights and obligations of the parties shall be as follows:
21.1 Lessee shall vacate the Leased Premises immediately, remove any property of Lessee including any fixtures which Lessee is required to remove at the end of the Lease term, perform any cleanup, alterations or other work required to leave the Leased Premises in the condition required by this Lease at the end of the term, and deliver all keys to Lessor. Possession to any structure on the Leased Premises shall immediately revert to Lessor and ▇▇▇▇▇▇ shall have the no right to exercise any or claim against ▇▇▇▇▇▇ as a result thereof.
21.2 Lessor may re-enter, take possession of the following remedies upon an Event Leased Premises, and remove any persons or property by legal action or self-help with the use of Default:reasonable force and without liability for damages.
(i) temporarily21.3 Following re-entry or abandonment, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of Lessor may relet the deficiency or default by the Borrower;
(ii) cease, Leased Premises and in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow that connection may relet all or part of the cost Leased Premises, alone or in conjunction with other properties, for a term longer or shorter than the term of this Lease, upon any reasonable terms and conditions, including the granting of some rent-free occupancy or other rent concession, and may make any suitable alterations and/or refurbish the Leased Premises, or change the character or use of the activity or action Leased Premises, but Lessor shall not be required to relet to any Lessee which Lessor may reasonably consider objectionable.
21.4 The foregoing remedies shall be in compliance;
(v) require that the Developer, the Manager, the Contractor or addition to and shall not exclude any other remedy available to Lessor under applicable law or as set forth in this Lease.
21.5 Any holding over after the expiration of the lease, with the written consent of ▇▇▇▇▇▇, will be construed to be a tenancy from month to month, at 150% of the Basic Rent payable for the period immediately before the expiration of the Term and will otherwise be on the terms and conditions of this Lease. If Lessor consents to any such holding over, either party providing services may thereafter terminate the tenancy at any time upon thirty (30) days’ advance written notice to the Borrower other party. Any holding over without consent will be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housingtenancy at sufferance, which shall remit such funds to the Treasury, Lessor may terminate at any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect theretotime without notice.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Land Lease Agreement
Remedies on Default. A. Florida Housing ▇▇▇never a▇▇ ▇▇▇▇t of Default shall have occurred and be continuing, Lender, as assignee of Issuer, shall have the right right, at its sole option without any further demand or notice, to exercise take any one or any combination of the following remedies upon an Event remedial steps and which are otherwise accorded to Lender, as assignee of DefaultIssuer, by applicable law:
(ia) temporarilyby notice to Issuer and Borrower, wholly or partiallydeclare the entire unpaid principal amount of the Loan then outstanding, suspend making payments of Exchange Program Funds all interest accrued and unpaid thereon and all amounts payable under this Agreement pending correction to be forthwith due and payable, whereupon the Loan, all such accrued interest and all such amounts shall become and be forthwith due and payable, without presentment, notice of the deficiency dishonor, protest or default further notice of any kind, all of which are hereby expressly waived by the Borrower;
(iib) ceasetake possession of the Mortgaged Property, wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the Mortgaged Property for use over a term in whole a commercially reasonable manner, all for the account of Lender, provided that Borrower shall remain directly liable for the deficiency, if any, between the rent or in partother amounts paid by a lessee or sublessee of the Mortgaged Property pursuant to such lease or sublease during the same period of time, making any further payments under this Agreementafter deducting all costs and expenses, including reasonable attorney's fees and expenses, incurred with respect to the recovery, repair and storage of the Mortgaged Property during such period of time;
(c) take possession of the Mortgaged Property wherever situated, without any court order or other process of law and without liability for entering the Premises, and sell the Mortgaged Property in a commercially reasonable manner. All proceeds from such sale shall be applied in the following manner: FIRST, to pay all proper and reasonable costs and expenses associated with the recovery, repair, storage and sale of the Mortgaged Property including reasonable attorney's fees and expenses; SECOND, to pay (i) Lender the amount of all unpaid Loan Payments or other obligations (whether direct or indirect owed by Borrower to Lender), if any, which are then due and owing, together with interest and late charges thereon, (ii) Lender the then applicable Prepayment Amount (taking into account the payment of past-due Loan Payments as aforesaid), plus a pro rata allocation of interest, at the rate utilized to calculate the Loan Payments, from the next preceding due date of a Loan Payment until the date of payment by the buyer, and (iii) terminate this Agreementany other amounts due hereunder, including indemnity payments, taxes, charges, reimbursement of any advances and other amounts payable to Lender or Issuer hereunder; and THIRD, to pay the remainder of the sale proceeds, purchase moneys or other amounts paid by a buyer of the Mortgaged Property to Westerbeke;
(ivd) disallow exercise all or part of rights and remedies under the cost of Mortgage and the activity or action not in complianceAssignment;
(ve) require that proceed by appropriate court action to enforce specific performance by Borrower of the Developerapplicable covenants of this Agreement or to recover for the breach thereof, including the Managerpayment of all amounts due from Borrower. Borrower shall pay or repay to Lender or Issuer all costs of such action or court action, the Contractor or any other party providing services to the Borrower be replacedincluding, without limitation, reasonable attorney's fees;
(vif) remove take whatever action at law or in equity may appear necessary or desirable to enforce its rights with respect to the [General Partner] [Member] Mortgaged Property. Borrower shall pay or repay to Lender or Issuer all costs of the Borrower and require the Borrower to provide for an alternate entitysuch action or court action, acceptable in advance by Florida Housingincluding, to act in its steadwithout limitation, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documentsreasonable attorney's fees; and
(xig) exercise with or without notice to Borrower, submit one or more drafts under the Letter of Credit, Construction Letter of Credit or any Substitute Letter of Credit for any amounts due hereunder. Notwithstanding any other rights and remedies that may be available under law or in equity.
B. In addition remedy exercised hereunder, Borrower shall remain obligated to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to Lender any unpaid portion of the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect theretoPrepayment Amount.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Loan Agreement (Westerbeke Corp)
Remedies on Default. A. Florida Housing If any of the Events of Default hereinabove specified shall occur, Landlord, at any time thereafter, shall have the right to and may exercise any of the following remedies upon an Event of Defaultrights and remedies:
(a) Landlord may, pursuant to written notice thereof to Tenant, immediately terminate this Agreement and, peaceably or pursuant to appropriate legal proceedings, re-enter, retake and resume possession of the Leased Property for Landlord's own account without liability for trespass (Tenant hereby waiving any right to notice or hearing prior to such taking of possession by Landlord) and, for Tenant's breach of and default under this Agreement, recover immediately from Tenant any and all sums and damages due or in existence at the time of such termination, including, without limitation, (i) temporarilyall Rent and other sums, wholly or partiallycharges, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default payments, costs and expenses agreed and/or required to be paid by the Borrower;
Tenant to Landlord hereunder prior to such termination, (ii) ceaseall costs and expenses of Landlord in connection with the recovery of possession of the Leased Property, including reasonable attorney's fees based upon services rendered at hourly rates and court costs, and (iii) all costs and expenses of Landlord in connection with any reletting or attempted reletting of the Leased Property or any part or parts thereof, including, without limitation, brokerage fees, advertising costs, reasonable attorney's fees based upon services rendered at hourly rates based upon service rendered at hourly rates and the cost of any alterations or repairs or tenant improvements which may be reasonably required to so relet the Leased Property, or any part or parts thereof.
(b) Landlord may, pursuant to any prior notice required by law, and without terminating this Agreement, peaceably or pursuant to appropriate legal proceedings, re-enter, retake and resume possession of the Leased Property for the account of Tenant, make such alterations of and repairs and improvements to the Leased Property as may be reasonably necessary in order to relet the same or any part or parts thereof and, directly or through a qualified management or operating company which may include an Affiliated Person of Landlord, operate and manage the Leased Property, and relet or attempt to relet the Leased Property or any part or parts thereof for such term or terms (which may be for a term or terms extending beyond the Term of this Agreement), at such rents and upon such other terms and provisions as Landlord, in whole its sole discretion, may deem advisable. If Landlord takes possession and control of the Leased Property and operates the same, Tenant shall, for so long as Landlord is actively operating the Leased Property, have no obligation to operate the Leased Property but agrees that Landlord, any contract manager or operator, or any new tenant or sublessee may, to the extent permitted by law, operate the Facility under Tenant's Permits, including its Medicaid and Medicare provider agreements, if any, until same are issued in partthe name of the Landlord or the new manager/operator or tenant or sublessee, making as applicable. If Landlord relets or attempts to relet the Leased Property, or obtains a contract manager or operator for the Leased Property, Landlord shall at its sole discretion determine the terms and provisions of any further payments new lease or sublease, or management or operating agreement, and whether or not a particular proposed manager or operator, or new tenant or sublessee, is acceptable to Landlord. Upon any such reletting, or the operation of the Leased Property by a contract manager or operator, all rents or incomes received by the Landlord from such reletting or otherwise from the operation of the Leased Property shall be applied, (i) first, to the payment of all costs and expenses of recovering possession of the Leased Property, (ii) second, to the payment of any costs and expenses of such reletting and or operation, including brokerage fees, advertising costs, reasonable attorney's fees based upon service rendered at hourly rates, a management fee of between five percent (5%) and ten percent (10%) of the gross revenues generated, and the cost of any alterations and repairs reasonably required for such reletting or operation of the Leased Property; (iii) third, to the payment of any indebtedness, other than Rent, due hereunder from Tenant to the Landlord, (iv) fourth, to the payment of all Rent and other sums due and unpaid hereunder, and (v) fifth, the residue, if any, shall be held by the Landlord and applied in payment of future Rent as the same may become due and payable hereunder. If the rents received from such reletting or net income from the operation of the Leased Property during any period shall be less than the Rents and Additional Charges required to be paid during that period by the Tenant hereunder, Tenant shall promptly pay any such deficiency to the Landlord and failing the prompt payment thereof by Tenant to Landlord, Landlord shall immediately be entitled to institute legal proceedings for the recovery and collection of the same. Such deficiency shall be calculated and paid at the time each payment of Minimum Rent, Percentage Rent or any other sum shall otherwise become due under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part , or, at the option of Landlord, at the end of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms Term of this Agreement;
(ix) exercise . Landlord shall, in addition, be immediately entitled to sue for and otherwise rec▇▇▇r from Tenant any rights it may have under other damages occasioned by or resulting from any abandonment of the Recapture Mortgage (in the event Leased Property or other breach of a or default under this Agreement other than a default in the payment of Rent. No such re-entry, retaking or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure resumption of possession of the liens thereunder;Leased Property by the Landlord for the account of Tenant shall be construed as an election on the part of Landlord to terminate this Agreement unless a written notice of such intention shall be given to the Tenant or unless the termination of this Agreement be decreed by a court of competent jurisdiction. Notwithstanding any such re-entry and reletting or attempted reletting of the Leased Property or any part or parts thereof for the account of Tenant without termination, Landlord may at any time thereafter, upon written notice to Tenant, elect to terminate this Agreement or pursue any other remedy available to Landlord for Tenant's previous breach of or default under this Agreement.
(xc) Landlord may, without re-entering, retaking or resuming possession of the Leased Property, sue for all Rent and all other sum▇, charges, payments, costs and expenses due from Tenant to Landlord hereunder (discounted to present value) either: (i) as they become due under this Agreement, taking into account that Tenant's right and option to pay the Rent hereunder on a monthly basis in any particular Fiscal Year is conditioned upon the absence of a Default on Tenant's part in the performance of its obligations under this Agreement, or (ii) at Landlord's option, accelerate the maturity and due date of the whole or any part of the Rent for the entire then-remaining unexpired balance of the Term of this Agreement, as well as all other sums, charges, payments, costs and expenses required to be paid by Tenant to Landlord hereunder, including, without limitation, damages for breach or default of Tenant's obligations hereunder in existence at the time of such acceleration, such that all sums due and payable under this Agreement shall, following such acceleration, be treated as being and, in fact, be due and payable in advance as of the date of such acceleration. Landlord may then proceed to recover and collect all such unpaid Rent and other sums so sued for from Tenant by distress, levy, execution or otherwise. Regardless of which of the foregoing alternative remedies is chosen by Landlord under this subparagraph (c), Landlord shall not be required to relet the Leased Property nor exercise any other right granted to Landlord pursuant to this Agreement, nor, except as may be required by Applicable Laws, shall Landlord be under any obligation to minimize or mitigate Landlord's damages or Tenant's loss as a result of Tenant's breach of or default under this Agreement. Notwithstanding the foregoing, following such time as Landlord may obtain possession of the Leased Property, Landlord or its successor Landlord at the time of any Lease termination, shall continue to make the Leased Property available for lease, on an "as is" basis, and shall turn over the net proceeds thereof to Tenant to the extent actually received by Landlord in respect of any time period for which Landlord shall have received the full amount of Rent payable with respect thereto (albeit perhaps on a basis reasonably discounted for the time value of money or present-value basis).
(d) Landlord may, in addition to any other remedies provided herein, enter upon the Leased Property or any portion thereof and take possession of (i) any and all of Tenant's Personal Property, if any, (ii) Tenant's books and records necessary to operate the Leased Property, and (iii) all the bank accounts concerning, or established for, the Leased Property, without liability for trespass or conversion (Tenant hereby waiving any right to notice or hearing prior to such taking of possession by Landlord) and sell the same by public or private sale, after giving Tenant reasonable notice of the time and place of any public or private sale, at which sale Landlord or its assigns may purchase all or any portion of Tenant's Personal Property, if any, unless otherwise prevented by law. Unless otherwise provided by law and without intending to exclude any other manner of giving Tenant reasonable notice, the requirement of reasonable notice shall be met if such notice is given at least ten (10) days before the date of sale. The proceeds from any such disposition, less all expenses incurred in connection with the taking of possession, holding and selling of such Property (including reasonable attorneys' fees based upon services rendered at hourly rates) shall be credited against Rent which is due hereunder.
(e) Tenant acknowledges that one of the rights and remedies available to Landlord under Applicable Law is to apply to a court of competent jurisdiction for the appointment of a receiver to collect the rents, issues, profits and income of the Leased Property and to manage the operation of the Leased Property. Tenant hereby further acknowledges that may be available the revocation, suspension or material limitation of the certification of the Leased Property for provider status under Medicare or Medicaid (or successor programs) and/or the revocation, suspension or material limitation of the license of the Leased Property as an assisted living and dementia care facility under the Loan Documents; andlaws of the State will materially and irreparably impair the value of Landlord's investment in the Leased Property. Therefore, in any of such events, and in addition to any other right or remedy of Landlord under this Agreement, Landlord may petition any appropriate court for appointment of a receiver to manage the operation of the Leased Property (or any portion thereof as to which Tenant has suffered the revocation, suspension or material limitation of any license), to collect and disburse all rents, issues, profits and income generated thereby and to preserve or replace to the extent possible the operating license and provider certification of the Leased Property or to otherwise substitute the licensee or provider thereof. The receiver shall be entitled to a reasonable fee for his services as receiver. All such fees and other expenses of the receivership estate shall be payable as Additional Charges under this Agreement. Tenant hereby irrevocably stipulates to the appointment of a receiver under such circumstances and for such purposes and agrees not to contest such appointment.
(xif) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described hereinabove specified and enumerated, Landlord shall have and may exercise the right to invoke any other remedies allowed at law or in Section 10.2A aboveequity as if the remedies of re-entry, unlawful detainer proceedings and other remedies were not herein provided. Accordingly, the Borrower shallmention in this Agreement of any particular remedy shall not preclude Landlord from having or exercising any other remedy at law or in equity. Nothing herein contained shall be construed as precluding the Landlord from having or exercising such lawful remedies as may be and become necessary in order to preserve the Landlord's right or the interest of the Landlord in the Leased Property and in this Agreement, upon demand by Florida Housing following an Event even before the expiration of Defaultany notice periods provided for in this Agreement, (i) repay to Florida Housing, which shall remit if under the particular circumstances then existing the allowance of such funds to notice periods will prejudice or will endanger the Treasuryrights and estate of the Landlord in this Agreement and in the Leased Property. In addition, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms provision of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and feescontrary notwithstanding, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event no provision of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, shall delay or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, limit Landlord's right to seek injunctive relief or successively, in Tenant's obligation to comply with any ordersuch injunctive relief.
Appears in 1 contract
Remedies on Default. A. Florida Housing shall have Upon the right to exercise occurrence of an event of default, any one or more of the following remedial steps may be taken:
(a) MAID may perform on account of the Buyer any covenant or obligation in the performance of which the Buyer is in default, in which the Buyer shall be obligated to pay immediately to MAID any amount paid by MAID together with counsel fees, as well as interest at the rate of twelve and one-half percent (12.50%) per annum from the date of payment by MAID.
(b) MAID may declare all sums which the Buyer is obligated to pay to MAID pursuant to this Agreement, together with interest accrued, immediately due and payable.
(c) MAID may terminate this Agreement and resell the Premises at public or private sale, and MAID will apply the monies received therefrom, less expenses of same, in the order of priority as MAID, in its discretion, may elect; and the Buyer shall remain liable for any deficiency after the application of such proceeds.
(d) UPON AN EVENT OR DEFAULT, THE BUYER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD OF PENNSYLVANIA OR ELSEWHERE TO APPEAR AS ATTORNEY FOR THE BUYER, AS WELL AS FOR ALL PERSONS CLAIMING BY, THROUGH OR UNDER THE BUYER, AND TO SIGN AN AGREEMENT FOR ENTERING, IN ANY COURT OF COMPETENT JURISDICTION, AN AMICABLE ACTION IN EJECTMENT AGAINST THE BUYER AND THEREIN CONFESS JUDGMENT FOR THE RECOVERY BY MAID OR ITS ASSIGNEE OF POSSESSION OF THE PREMISES, FOR WHICH A COPY OF THIS AGREEMENT SHALL BE SUFFICIENT WARRANT, WHEREUPON, IF MAID SO DESIRES A WRIT OF EJECTMENT MAY ISSUE FORTHWITH WITHOUT ANY PRIOR WRIT OR PROCEEDINGS WHATSOEVER, AND PROVIDED THAT IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED THE SAME SHALL BE DETERMINED AND THE POSSESSION OF THE PREMISES REMAIN IN OR BE RESTORED TO THE BUYER, MAID SHALL HAVE THE RIGHT ON ACCOUNT OF ANY SUBSEQUENT EVEN OF DEFAULT TO BRING ONE OR MORE FURTHER AMICABLE ACTION OR ACTIONS IN EJECTMENT AS HEREINBEFORE SET FORTH TO RECOVER POSSESSION OF THE PREMISES AND CONFESS JUDGMENT FOR THE RECOVERY OF POSSESSION AS HEREINABOVE PROVIDED Initial:
(e) After ten (10) days' written notice MAID may take possession of the Premises by summary procedure set forth in subparagraph (d) above or otherwise without terminating this Agreement. MAID may collect rentals and enforce all other remedies upon against the Buyer under any existing leases for any part of the Premises, but without being deemed to have affirmed such leases, and MAID may enter into new leases on such terms as MAID may deem fit for any portion or portions of the Premises.
(f) The Buyer hereby irrevocably authorizes and empowers any attorney of any court of record in Pennsylvania to appear for and confess judgment against the Buyer for all amounts for which the Buyer may be or become liable to MAID or its assignee under this Agreement, as evidenced by an Event affidavit signed by an officer of Default:MAID or its assignee setting forth the amounts then due plus reasonable attorney fees, with costs of suit and release of errors. Such authority shall not be exhausted by any one exercise thereof, but judgment may be confessed as aforesaid from time to time as often as there is a default hereunder. A copy of this Agreement shall be his sufficient warrant.
(g) In any amicable action of ejectment brought hereunder or any suit or amicable action brought for the Purchase Price or any sums due hereunder, MAID shall first cause to be filed in such suit, action or actions an affidavit made by it or someone acting for it setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be prima facie evidence of the truth of said Agreement, and if such copy shall be filed in such suit, action or actions, it shall not be necessary to file the original as a warrant of attorney, any rule of court, custom or practice to the contrary notwithstanding.
(h) The Buyer hereby waives and releases all errors, defects and imperfections whatsoever of a procedural nature in the entering of any judgment or any process or proceedings arising out of this Agreement. The Buyer also waives the benefit of any laws now or hereafter which might authorize the stay of any execution to be issued or any judgment recovered hereunder or the action of any property from levy or sale.
(i) temporarilyAs long as the Buyer is in default, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction all interest of the deficiency Buyer In the premiums or default by dividends upon any insurance policies provided for herein, as well as any rebates on taxes or assessments' imposed upon the Borrower;
(ii) ceasePremises, in whole or in part, making are hereby assigned to MAID. MAID does not assume general liability for the repayment of any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity Notes or action not in compliance;
Mortgages (v) require that the Developerexcept to PIDA), the Manageror for costs, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costspenalties, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect theretotaxes, interest, commissions, charges, insurance or other payments therein recited.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Installment Sale Agreement (High Voltage Engineering Corp)
Remedies on Default. A. Florida Housing shall have In the event of any default or breach by Tenant, Landlord may at any time thereafter, with or without notice or demand:
a. Terminate Tenant's right to exercise possession under the lease and reenter and retake possession of the Premises and relet or attempt to relet the Premises on behalf of Tenant at such rent and under such terms and conditions as Landlord may deem best under the circumstances for the purpose of reducing Tenant's liability. Landlord shall not be deemed to have thereby accepted a surrender of the Premises, and Tenant shall remain liable for all Rents and Charges due under this Lease and for all damages suffered by Landlord because of Tenant's breach of any of the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction covenants of the deficiency or default by the Borrower;Lease.
(ii) ceaseb. Declare this Lease to be terminated, in whole or in partended and null and void, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part and reenter upon and take possession of the cost Premises whereupon all right, title and interest of the activity or action not Tenant in compliance;the Premises shall end.
(v) require that c. Accelerate and declare the Developer, entire remaining unpaid Base Rent and Additional Rent for the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms balance of this Agreement;
(ix) exercise any rights it may have under Lease to be immediately due and payable forthwith, and may, at once, take legal action to recover and collect the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other same. All rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each Landlord herein enumerated shall be cumulative and nothing herein contained shall exclude any other right or remedy allowed by law. No reentry or retaking possession of the Premises by Landlord shall be construed as an election on its part to terminate this Lease, unless a written notice of such intention be given to Tenant. Nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any Rents and Charges due to Landlord hereunder or any damages accruing to Landlord by reason of the violations of any of the terms, provisions and covenants herein contained. Landlord's acceptance of rent or Additional Rent following any event of default hereunder shall not be construed as Landlord's waiver of such event of default. Forbearance by landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of any other violation or default. Legal options to recover for loss or damage that Landlord may be exercised concurrently, independently, suffer by reason of termination of this Lease or successively, in the deficiency from any orderreletting as provided for above shall include the expense of repossession and any repairs or remodeling undertaken by Landlord following repossession.
Appears in 1 contract
Remedies on Default. A. Florida Housing shall have In some instances, federal and state law will require Lender to provide Grantor with notice of the right to exercise any cure, or other notices and may establish time schedules for foreclosure actions. Subject to these limitations, if any, Lender may accelerate the Secured Debt and foreclose this Security Instrument in a manner provided by law if Grantor is in default. At the option of the following remedies upon an Event of Default:
(i) temporarilyLender, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or any part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ agreed fees and costscharges, incurred accrued interest and principal shall become immediately due and payable, after giving notice if required by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies law, upon the occurrence of an Event a default or anytime thereafter. In addition, Lender shall be entitled to all the remedies provided by law, the ▇▇▇▇▇ of Default the Secured Debt, this Security Instrument and any related documents, including without limitation, the power to sell the property. In the event of default, it shall be the duty of the Trustee, at the request of Lender (which request is hereby conclusively presumed), to invoke power of sale as required by Section 51.002 of the Texas Property Code, as then amended. Trustee shall advertise and sell the Property as a whole or in separate parcels at public auction to the highest bidder for such period cash and convey indefeasible title to the Property with covenants of general warranty. Trustee shall give notice of sale including the time, terms and place of sale and a description of the Property to be sold as it determines appropriaterequired by the applicable law in effect at the time of the proposed sale. Upon sale of the Property and to the extent not prohibited by law, Trustee shall make and deliver a deed to the Property sold which conveys absolute title to the purchaser, and after first paying all fees, charges and costs, shall pay to Lender all monies advanced for repairs, taxes, insurance, liens, assessments and prior encumbrances and interest thereon, and the principal and interest on the Secured Debt, paying the surplus, if it determines that [any, to Grantor. Lender may purchase the Tax Credit Investor or] Property. The recitals in any deed of conveyance shall be prima facie evidence of the facts set forth therein. All remedies are distinct, cumulative and not exclusive, and the Lender is taking appropriate measures entitled to correct all remedies provided at law or equity, whether or not expressly set forth. The acceptance by Lender of any sum in payment or partial payment on the circumstances giving rise Secured Debt after the balance is due or is accelerated or after foreclosure proceedings are filed shall not constitute a waiver of Lender's rights to require full and complete cure of any existing default. By not exercising any remedy on Grantor's default, Lender does not waive Lender's right to later consider the Event of Defaultevent a ▇▇▇▇▇lt if it continu▇▇ ▇▇ happens again.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Remedies on Default. A. Florida Housing Whenever any Event of Default referred to in Section 13.1 occurs, the Bank may take one or any combination of the following remedial steps:
(a) Declare an amount equal to the then outstand ing prin cipal amount of the Rental Payments and accrued interest thereon, whether by acceler ation of matur ity (in the same manner that the Installment Payments may be accelerated) or otherwis e, to be immediately due and payable as liquidated damages under t his Lease Agreement and not as a penalty, whereon the same shall become immediately due and payabl e.
(b) Have reasonable access to and inspect, examine and make copies of the books and records and any and all accounts of the YMCA with respect to the Leased Proper ▇▇ ▇▇▇▇▇ g regular business hours of the YMCA.
(c) Re-enter and take possession of all or any part of the Leased Property with or without terminating this Lease Agreement, exclude the YMCA from possession of all or any part of the Leased Property, and, for the account of the YMCA, keep in force and effect all subleases entered into pursuant to Section 12.1 which then are outstanding and sublease all or any part of the Leased Property which then is not already so subleased to one or more parties, in each case holding the YMCA liable for the difference in the rent and other amount s paid by the subl essee in such subleasing and the Rental Payments and other amounts payable by the YMCA under this Lease Agreement. Upon taking this remedial action, the Town’s interest in the Leased Property will remain separate and distinct.
(d) Terminate this Lease Agreement and any subleases as to all or any part of the Facilities, exclude the YMCA and any subtenants from possession of all or any part of the Facilities, and lease all or any part of the Facilities for the account of the YMCA to one or more parties, holding the YMCA liable for all Rental Payments and other amounts due under this Lease Agreement and not paid by the other party.
(e) Exercise any of the righ ts and remedies under this Lease Agreement or the other Basic Documents with respect to the Leased Property.
(f) Take whatever action at law or in equity may appear necessary or desirable to collect the amounts then due and thereafter to become due, or to enforce per formance and observance of any obligation, agreement or covenant of the YMCA under this Lease Agreement. Any amounts collected pursuant to action taken under this Section shall be paid into the Bank and applied in accordance with the provisions of the Contract. The Town or the Bank, as appropriate, will give notice to the YMCA of the exercise of any of its rig hts or r emedies under th is Section in the manner provided in Section 14.1 and by telephone or telegram; provided, however, that failure to give notice by telephone or telegram will not affect the validity of the exercise of any right or remedy under this Section. Any balance of the money collected pursuant to action taken under this Section remaining after payment of all costs and expenses of collection and amounts due as Additional Rentals will be paid into the Bank for application to the payment of the Pu rchase Pr ice then outstanding in accordance with the provisions of the Contract. Notwithstanding the foregoing, upon an Event of Default under Section 13.1, the Town shall have the right to exercise any purchase the Site and the Facil ities from the YMCA at 25% below the market v alue of the following remedies upon Sites and the Facilit ies, as determined by an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services independant cer tified appr ▇▇▇▇▇ acceptable to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms YMCA and the remaining terms of this Agreement;
(ix) exercise any rights it may have under Town. The Town will give notice to the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) Bank and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of YMCA as soon as practicable after an Event of Default for has occurred of its intention to exercise such period as it determines appropriateright. After the Bank receives such notice, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct Bank will be precl uded fr om the circumstances giving rise to the Event of Default.
D. Each right and remedy enfor cing/ exerci sing r emedies provided in this Agreement is distinct from all other rights Section 13.2 so long as the Town continues to make Installment Payments under the Contract. Should the Town subsequently discontinue its payments under the Contr act, however, or remedies under this Agreementshould any Event of Defau lt occur und er Section
11.1 of the Contract, the Recapture Mortgage, Bank shall have the Assignment Instruments, right to enforce/exercise those remedies as provided in Section 11.2 of the Extended Use Contract. No such remedies provided in this Lease Agreement or will be available to the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any orderBank under such circumstances.
Appears in 1 contract
Sources: Lease Agreement
Remedies on Default. A. Florida Housing If any Event of Default shall have occurred and be continuing, the right to exercise any of the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) ceaseSecured Party shall have, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow addition to all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under given it by this Agreement, those allowed by law and the Loan Documents; and
(xi) exercise any other rights and remedies that of a secured party under the Code (as such term is defined in the Credit Agreement) and, without limiting the generality of the foregoing, the Secured Party may immediately, without demand of performance and without other notice or demand whatsoever to Debtor, sell at public or private sale or otherwise realize upon, the whole or from time to time any part of the Trademarks, or any interest which the Debtor may have therein and, after deducting from the proceeds of sale or other disposition of the Trademarks all expenses (including all reasonable expenses for legal services actually incurred without giving effect to any statutory presumption), shall apply the residue of such proceeds toward the payment of the Secured Obligations (which application shall be available under law or in equity.
B. In addition made, first, to the remedies described in Section 10.2A aboveSecured Party's costs and expenses of such collection, the Borrower shallsale or other disposition, upon demand by Florida Housing following an Event of Defaultincluding reasonable attorney's fees actually incurred without giving effect to any statutory presumption, (i) repay to Florida Housing, which shall remit such funds and then to the Treasury, payment of the other Secured Obligations then due). Debtor shall be liable for any amount deficiency remaining after the application of Exchange Program Funds previously disbursed such proceeds. Any remainder of the proceeds after payment in full of the Secured Obligations shall be paid over to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded Debtor. If required by applicable law, and each notice of any sale or other disposition of the Trademarks shall be cumulative given to Debtor at least ten (10) days before the time of any intended public or private sale or other disposition of the Trademarks is to be made, which Debtor hereby agrees shall be reasonable notice of such sale or other disposition. At any such sale or other disposition the Secured Party may, to the extent permissible under applicable law, purchase the whole or any part of the Trademarks sold, free -2- from any right of redemption on the part of Debtor, which right is hereby waived and may be exercised concurrentlyreleased. No Waiver. No course of dealing between Debtor and the Secured Party, independentlynor any failure to exercise, nor any delay in exercising, on the part of the Secured Party, any right, power or successivelyprivilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, in power or privilege hereunder preclude any orderother or further exercise thereof or the exercise of any other right, power or privilege.
Appears in 1 contract
Sources: Trademark Security Agreement (Vodavi Technology Inc)
Remedies on Default. A. Florida Housing shall have the right to exercise any of the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of Whenever an Event of Default shall have happened and be subsisting beyond any applicable period of grace or cure, any one or more of the following remedial steps may be taken:
(a) The Director may at its option declare all installments of rent payable under Section 4.3 hereof for the remainder of the Lease Term to be immediately due and payable, whereupon the same shall become immediately due and payable.
(b) The Director may reenter and take possession of the Project without terminating this Lease, and sublease the Project for the account of the Company, holding the Company liable for the difference between the rent and other amounts payable by such period sublessee in such subleasing and the rents and other amounts payable by the Company hereunder.
(c) The Director may terminate the Lease Term, exclude the Company from possession of the Project and use its best efforts to lease or sell the Project to another, but holding the Company liable for all rent and other payments due up to the effective date of such leasing.
(d) The Director may direct the Trustee, in writing, to transfer any amounts remaining in the Project Fund to the Collateral Proceeds Account.
(e) The Director may take whatever action at law or in equity as it determines appropriatemay appear necessary or desirable to collect the rent then due and thereafter to become due, or to enforce performance and observance of any obligation, agreement or covenant of the Company under this Lease.
(f) The Director may take all actions permitted under Section 11.1 of this Lease. Any amounts collected pursuant to action taken under this Section shall be allocated as provided in Section 11.3 of this Lease, and the Lease Pro Rata Share of such amounts shall be paid into the Collateral Proceeds Account and applied in accordance with the provisions of the Trust Agreement or, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct Bonds have been fully paid (or provision for payment thereof has been made in accordance with the circumstances giving rise to provisions of the Event Trust Agreement) and all other amounts payable thereunder and hereunder have been paid, as directed by the Company. The Loan Pro Rata Share of Default.
D. Each right and remedy such amounts shall be applied by the Director as provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any orderAgreement.
Appears in 1 contract
Sources: Lease (Venture Service Co)
Remedies on Default. A. Florida Housing (a) Upon any one or more events of default, Landlord may, at its option, at any time thereafter, give written notice to Tenant specifying the event or events of default and stating that this Lease and the term demised shall expire and terminate on the date specified in the notice, which shall be at least twenty days after the giving of the notice. Upon the date specified in the notice, this Lease and the term demised and all rights of Tenant under this Lease shall expire and terminate. The expiration or termination of this Lease by Landlord shall not relieve Tenant of its liability and obligations under this Lease, which shall survive.
(b) Upon termination of this Lease pursuant to this Section, Tenant shall quit and peacefully surrender the Leased Property and the Improvements to Landlord. Landlord, upon, or at any time after, the expiration or termination of this Lease, without additional notice and without prejudice to any other rights and remedies it shall have at law or in equity, may re-enter the right to exercise Leased Property and Improvements, and remove from them Tenant, its agents, employees, servants, licensees, and subtenants and other persons, firms or corporations and all or any of its or their property, either by summary dispossess proceedings or by any suitable action or proceeding at law or in equity, or by force or otherwise, without being liable to indictment, prosecution or damages for such action, and may repossess and have, hold and enjoy the following remedies upon an Event Leased Property and the Improvements.
(c) Upon Landlord's termination of Default:this Lease, re-entry of the Leased Property and Improvements or dispossession of Tenant by summary proceedings or otherwise;
(i) temporarilyThe rent shall become due and payable and be paid up to the time of termination, wholly re-entry, or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrowerdispossession;
(ii) ceaseLandlord at any time and from time to time may relet the Leased Property and Improvements or any part or parts thereof, either in whole the name of Landlord 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 term of this Lease and on such conditions, including, without limitation, concessions of free rent and alterations of the Leased Property and Improvements, as Landlord in partits sole discretion may determine, making any further payments under this Agreementand Landlord may collect and receive all rents and income from them;
(iii) terminate this AgreementNotwithstanding any present or future law, statute, or judicial decision, Landlord shall not be responsible or liable for any failure or refusal to relet the Leased Property and Improvements or any part of them, or for any failure to collect any rent due upon any reletting of them;
(iv) disallow all Whether or not the Leased Property or Improvements or any part of them shall have been relet, Tenant, until the cost end of what would have been the activity term of this Lease in the absence of expiration or action not termination, shall be liable to and shall pay Landlord as and for liquidated and agreed current damages (the "current damages") for Tenant's default, the amount of all rent (including prepaid base rent, which Landlord shall retain) which would have been payable under this Lease by Tenant if it were still in complianceeffect, less the net proceeds of any reletting pursuant to the provisions of this Section, after deducting all Landlord's expenses in the reletting, including, without limitation, all repossession costs, brokerage and management commissions, operating expenses, legal expenses, attorney's fees and expenses of preparation for reletting;
(v) require that Tenant shall pay the Developercurrent damages to Landlord, the Managerand Landlord shall be entitled to recover them from Tenant, the Contractor by separate action, actions or any other party providing services to the Borrower be replaced;proceeds, at such time or times when rent would have been payable under this Lease if it were still in effect; and
(vi) remove In lieu of collecting the [General Partner] [Member] of the Borrower current damages, Landlord, at its option, shall be entitled to retain, as and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon liquidated and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A aboveagreed final damages for Tenant's default, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any full amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement prepaid base rent and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect theretosuch other rent as Landlord shall have collected from Tenant.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Remedies on Default. A. Florida Housing shall have the right to exercise any of the following remedies upon an Event of Default:
(ia) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in In the event of any Event of Default as defined in Section 36 above (provided same is an uncured default in cases where there exists a default under this Agreement grace period and cure right), or if Tenant shall be vacated by summary proceedings or otherwise, the Loan Documents) Landlord, in addition to other remedies herein contained, or as may be permitted by law, may re-enter the Leased Premises and the Assignment Instrumentssame have and again possess and enjoy; and as agent for the Tenant or otherwise, including but not limited to foreclosure of re-let the liens thereunder;
(x) exercise any other rights Leased Premises and remedies that may be available under receive the Loan Documents; and
(xi) exercise any other rights rents therefor and remedies that may be available under law or in equity.
B. In addition apply the same, first, to the remedies described in Section 10.2A abovepayment of such expenses, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including reasonable attorneys’ fees and costs as the Landlord may have incurred in re-entering and repossessing the Leased Premises and in making such repairs and alterations as may be necessary; and, second, to the payment for such rent as may be in arrears and also the rent as may accrue subsequent to the re-entry by the Landlord, to the extent of the difference between the rent reserved hereunder and the rent, if any, received by the Landlord during the remainder of the unexpired term hereof, after deducting the aforementioned expenses, fees and costs, incurred by Florida Housing in connection with ; the Event of Default and/or the exercise of remedies with respect theretosame to be paid as such deficiencies arise and are ascertained each month.
C. Florida Housing may defer the enforcement of remedies (b) Additionally, upon the occurrence of an Event of Default (which shall include Tenant’s failure to cure the default within any applicable grace periods set forth in Section 36 above), Landlord shall have the right but not the obligation, upon giving ten (10) days’ notice in writing to Tenant, to declare this Lease and the term hereof terminated on the date fixed in such notice as if such date were the originally fixed expiration date of the term of this Lease (but Tenant shall retain liability as set forth in subsection (c) below), and Landlord shall then have the right to re-enter the Leased Premises and remove all persons, goods, fixtures, and chattels from the Leased Premises without liability for damages in accordance with all laws. In case of any such default, re-entry, expiration, termination and/or dispossession by summary proceedings or otherwise:
(i) the rent shall continue to accrue as if Tenant were in continuing possession of the Leased Premises, and the following shall become due and payable: such expenses as Landlord may incur for legal expenses, attorneys’ fees, brokerage and/or putting the Leased Premises in good order, or for preparing the same for re-letting;
(ii) the Landlord may re-let the Leased Premises or any part or parts thereof, either in the name of the Landlord 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 initial term, and may grant concessions or free rent on market terms and conditions; and
(iii) Tenant shall also pay Landlord, as it determines appropriatedamages, the deficiency between the rent hereby reserved and/or covenanted to be paid and the rent amount, if it determines that [any, of the Tax Credit Investor or] rents collected on account of the lease or leases of the Leased Premises for each month of the period which would otherwise have constituted the balance of the initial term. When computing the amounts which shall be due from Tenant, there shall be added to such deficiency the expenses which Landlord may incur in connection with re-letting, such as but not limited to legal expenses, attorneys’ fees, brokerage fees, and costs of keeping the Leased Premises in good order or for preparing the same for re-letting. Any such amounts due from Tenant shall be paid in monthly installments by Tenant on the rent day specified in this Lease, and any Lender is taking appropriate measures suit brought to correct collect the circumstances giving rise amount of the deficiency for any month shall not prejudice in any way the rights of Landlord to collect the Event deficiency for any subsequent month by a similar proceeding. The termination of Defaultthis Lease by Landlord in connection with default by Tenant hereunder shall not be construed as or constitute a release of Tenant’s liability for all terms, covenants and conditions on Tenant’s part to be complied with for what would have constituted the entire term of this Lease including, as the case may be, the then extension term or any extension term for which an option has been exercised, subject to mitigation as aforesaid.
D. Each (c) In the event of a breach or threatened breach by Tenant of any of the covenants or provisions of this Lease, Landlord shall have the right of injunction and the right to invoke any remedy allowed at law or in equity as if reentry, summary proceedings and other remedies were not herein provided for. Mention in this Agreement is distinct Lease of any particular remedy shall not preclude Landlord from all any other rights remedy in law or remedies under in equity.
(d) No receipt of rent by Landlord from Tenant after the valid termination of this AgreementLease shall reinstate, continue or extend the Recapture Mortgage, term of this Lease. No receipt of rent after the Assignment Instruments, the Extended Use Agreement or the Loan Documentscommencement of suit, or otherwise afforded after final judgment for possession of the Leased Premises shall reinstate, continue or extend the term, or affect the suit of said judgment. No receipt of rent by applicable law, and each Landlord shall be cumulative deemed received other than on account of the total rent due, and may be exercised concurrentlyapplied by Landlord against rents due in such manner as Landlord may determine, independentlywithout the receipt thereof constituting an accord or satisfaction.
(e) Any equipment, fixtures, goods or other property of Tenant, not removed by Tenant upon the termination of this Lease, or successivelyupon Tenant’s abandonment of the Leased Premises, or upon Tenant’s eviction from the Leased Premises, shall be considered as abandoned and Landlord shall have the right, without any notice to Tenant, to sell or otherwise dispose of the same, at the expense of Tenant, and shall not be accountable to Tenant for any part of the proceeds of such sale, if any.
(f) No remedy or election given by any provision in any orderthis Lease shall be deemed exclusive unless so indicated, but each shall, whenever possible, be cumulative with all other remedies in law or equity unless otherwise specifically provided.
Appears in 1 contract
Sources: Lease Agreement (Digital Cinema Destinations Corp.)
Remedies on Default. A. Florida Housing shall have Whenever an Event of Default has occurred and is continuing, City, to the right extent permitted by law and upon written notice to exercise Airline, may, subject to the provisions of any other Agreement then in effect between Airline and City, take any one or more of the following remedies upon an Event of Defaultremedial steps:
(ia) temporarilyCity may terminate this Agreement and exclude Airline from possession of its Exclusive Use Premises;
(b) City may, wholly or partiallywithout terminating this Agreement, suspend making exclude Airline from possession of its Exclusive Use Premises, and use reasonable efforts to lease the Exclusive Use Premises to another for the account of Airline, holding Airline liable for all Landing Fees, Terminal Area Rentals, Terminal Area Use Charges and Fueling System Fees and other payments due up to the effective date of Exchange Program Funds such leasing and for the excess, if any, of the Terminal Area Rentals and Terminal Area Use Charges and other amounts payable by Airline under this Agreement pending correction for the remainder of the deficiency or default term of this Agreement over the rentals and other amounts which are payable by the Borrower;such new airline under such new agreement; and
(iic) ceaseCity may, in whole from time to time, take whatever action at law or in partequity appears necessary or desirable to collect Landing Fees, making Terminal Area Rentals, Terminal Area Use Charges and Fueling System Fees and any further payments other amounts payable by Airline hereunder then due and thereafter to become due, or to enforce the performance and observance of any obligation, agreement or covenant of Airline under this Agreement;.
(iii) terminate Section 24.03 No Remedy Exclusive No remedy conferred upon or reserved to City in this Agreement;
(iv) disallow all or part Agreement shall be exclusive of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services available remedy, and each such other remedy shall be cumulative and shall be in addition to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default every other remedy given under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under now or hereafter existing at law or in equity.
B. In addition equity or by statute. No delay or omission in exercising any right or power accruing upon any default shall impair any such right or power or shall be construed to the remedies described in Section 10.2A abovebe a waiver thereof, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit but any such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle City to exercise any remedy provided in this Agreement is distinct from all other rights or remedies it has under this Agreement, it shall not be necessary to give any notice other than such notice as may be herein expressly required.
Section 24.04 Agreement to Pay Attorneys' Fees and Expenses In the Recapture Mortgageevent Airline defaults under this Agreement and City employs attorneys or incurs other expenses for the collection of Landing Fees, the Assignment InstrumentsTerminal Area Rentals, the Extended Terminal Area Use Agreement Charges or Fueling System Fees or the Loan Documentsenforcement or performance or observance of any obligation or agreement on the part of Airline herein contained, or otherwise afforded Airline shall, on demand, pay to City the reasonable fees and expenses of such attorneys and such other expenses so incurred by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any orderCity.
Appears in 1 contract
Sources: Airport Use Agreement
Remedies on Default. A. Florida Housing shall have Upon the right to exercise any occurrence and during the continuation of the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, the interest rate shall be the Default Rate and the Lender may, at its option and without any further demand or notice:
(ia) repay declare all principal components of the unpaid Loan Repayments, together with accrued interest thereon at the rate set forth in Section 3.4(c) (Loan Repayments – Rate on Overdue Payments) from the immediately preceding Loan Repayment Date on which payment was made, to Florida Housingbe immediately due and payable, which shall remit such funds whereupon the same will immediately become due and payable; and
(b) take whatever action at law or in equity may appear necessary or desirable to collect the Loan Repayments then due or thereafter to become due during the Term of this Loan Agreement, or enforce performance and observance of any obligation, agreement or covenant of the Authority under this Loan Agreement. The provisions of the preceding clause (a) are subject to the Treasurycondition that if, at any amount time after the principal components of Exchange Program Funds previously disbursed to the Borrower unpaid Loan Repayments have been so declared due and payable under the terms preceding clause (a), and before any judgment or decree for the payment of this Agreement the moneys due have been obtained or entered, the Authority deposits with the Lender a sum sufficient to pay all principal components of the Loan Repayments coming due prior to such declaration and all matured interest components (iiif any) of the Loan Repayments, with interest on such overdue principal and interest components calculated at the rate set forth in Section 3.4(c) (Loan Repayments – Rate on Overdue Payments), and a sum sufficient to pay to Florida Housing an amount equal to the all reasonable costs and fees, including attorneys’ fees and costs, expenses incurred by Florida Housing the Lender in connection with the Event of Default and/or the exercise of its rights and remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriatehereunder, if it determines that [the Tax Credit Investor or] and any Lender is taking appropriate measures to correct the circumstances giving rise and all other defaults known to the Event Lender (other than in the payment of Default.
D. Each right the principal and remedy provided interest components of the Loan Repayments due and payable solely by reason of such declaration) have been made good, then, and in this Agreement is distinct from all other rights or remedies under this Agreementevery such case, the Recapture MortgageLender shall, by written notice to the Assignment InstrumentsAuthority, the Extended Use Agreement rescind and annul such declaration and its consequences. However, no such rescission and annulment shall extend to or the Loan Documentsshall affect any subsequent default, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, impair or successively, in exhaust any orderright or power consequent thereon.
Appears in 1 contract
Sources: Loan Agreement
Remedies on Default. A. Florida Housing Subject to Section 10.6 hereof, whenever any event of default referred to in Section 10.1 hereof shall have happened and be continuing, the right Lessor may take any one or more of the following remedial steps:
(a) By written notice to exercise the Lessee, the Lessor may declare all installments of rent payable under Section 5.3 hereof for the remainder of the Lease Term to be immediately due and payable, whereupon the same shall become immediately due and payable.
(b) The Lessor or the Trustee on its own behalf or on behalf of the Lessor, may re-enter and take possession of the Project without terminating this Lease Agreement, and sublease the Project for the account of the Lessee, holding the Lessee liable for the difference in the rent and other amounts payable by such sublessee in such subleasing and the rents and other amounts payable by the Lessee hereunder.
(c) The Lessor or the Trustee on its own behalf or on behalf of the Lessor may terminate the Lease Term, exclude the Lessee from possession of the Project and use its best efforts to lease the Project to another party for the account of the Lessee, holding the Lessee liable for all rent and other payments due up to the effective date of such leasing and for the difference in the amounts payable by such new lessee and the amounts payable by the Lessee under this Lease Agreement.
(d) In the event any of the following remedies upon an Event Bonds shall at the time be outstanding and unpaid, the Lessor may have access to, and inspect and examine and make copies of Default:the Lessee's books and records and all of its accounts.
(ie) temporarilyThe Lessor may take whatever action at law or in equity may appear necessary or desirable to collect the rent, wholly then due and thereafter to become due, or partiallyto enforce performance and observance of any obligation, suspend making payments agreement or covenant of Exchange Program Funds the Lessee under this Agreement pending correction of the deficiency Lease Agreement. The Lessee acknowledges and understands that any lease or default sublease agreement entered into by the Borrower;
Lessor or the Trustee pursuant to either of Subsections (iib) ceaseor (c) of this Section 10.2 shall, in whole if the Lessor and the Trustee deem it advisable, grant an option to purchase the Project to the new lessee or in part, making any further payments the sublessee on the terms and conditions acceptable to the Lessor and the Trustee. Any amounts collected pursuant to action taken under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services Section 10.2 shall be paid to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower Trustee and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts applied in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms provisions of the Indenture. It is further understood and agreed that the remaining terms Lessor will follow the instructions of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (Bank or the Trustee in the event election or pursuit of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or herein vested in equityit.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Remedies on Default. A. Florida Housing shall have the right to exercise any Upon default of the following remedies upon Lessee for any monetary or non-monetary breach of this Agreement, the Lessor shall give the Lessee written Notice stating its Demand for Payment or Demand for Compliance by posting this on the Unit door, or as otherwise provided by Colorado law. If the Lessee does not cure the default within the time frame specified in the Notice, the Lessor may commence legal actions necessary to regain possession of the Unit, and to take any reasonable action to collect any unpaid balance. A Demand for Compliance shall remain in effect for the duration of occupancy or by mutual agreement, even after the original default is cured. The Lessee is liable for all costs incurred in regaining possession of a Unit, including all consequential damages, legal fees and moving costs. In addition, delinquencies may be reported to a credit-reporting agency, and the Lessee grants permission for the Lessor to obtain updated information from such an Event agency at any time. If the Lessor regains possession of Default:
the Unit pursuant to the provisions of this Agreement and State law (iincluding breach of this Agreement, abandonment, and eviction), or if the Lessee does not take occupancy of the Unit within thirty (30) temporarilydays of the signing of this Agreement, wholly or partiallythe Lessor shall mitigate its damages by making reasonable attempts to re-rent the Unit, suspend making payments but otherwise, the defaulting Lessee shall remain liable for the balance of Exchange Program Funds all recurring charges that would have become due under this Agreement pending correction (including unaccrued rent) for the remainder of the deficiency Lease Term. A Lessee who is in default may mitigate its own losses by locating a replacement Tenant, but any replacement Tenant must be acceptable to the Lessor at its sole discretion, and must sign a new Lease Agreement. A defaulting Lessee shall be liable for any costs and expenses incurred by the Lessor relating to or arising from the default. In the event of eviction, the Lessor shall not be responsible for the Lessee’s property past the time of eviction. The Lessor may not, except in cases of abandonment or hold-over, impound the belongings of the Lessee(s) or prohibit the Lessee(s) from entering the Unit until after the eviction process has been completed. If the Lessor regains possession of the Unit by way of abandonment or hold-over, the Lessor may change the lock(s) on the Unit door(s) and shall not be responsible for any items or property that may have been left in the Unit without permission. The Lessor has no responsibility to keep such items for more-than-thirty (30) days. If the Lessee violates or breaches this Agreement, the Lessor shall be entitled to recover all reasonable costs of collection or compliance, including, but not limited to, attorneys’ fees and court costs (whether or not a suit is filed). In the event of any dispute under this Agreement, the prevailing party shall be entitled to request recovery of damages, reasonable attorneys’ fees, and costs. Venue shall be in Arapahoe County Court. The covenants and obligations of the Lessee and of the Lessor are independent of each other. Neither Party shall be relieved of performance hereunder due to any alleged breach or default by the Borrower;
(ii) ceaseother, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance unless expressly authorized by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. State law. In addition to the remedies described in Section 10.2A abovestated herein, the Borrower shall, upon demand by Florida Housing following an Event each Party may avail itself of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreementavailable at law or in equity with respect to any alleged default on the part of the other, but the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each Lessee may not withhold rent payments. The Lessor shall be cumulative and may afforded a reasonable opportunity to correct any default alleged by the Lessee. Any alleged default must be exercised concurrently, independently, or successively, in any orderreported within thirty (30) days of its occurrence. .
Appears in 1 contract
Sources: Commercial Lease Agreement
Remedies on Default. A. Florida Housing Upon the happening of any Event of Default, Lender shall have the right right, in addition to any other rights or remedies available to Lender under the Mortgage or any of the other Loan Documents or under applicable Law, to exercise any one or more of the following remedies upon rights and remedies:
(a) Lender may accelerate all of Borrower’s Obligations under the Loan Documents whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or intention to accelerate, presentment or demand for payment, protest or notice of nonpayment or dishonor, or notices or demands of any kind or character (all of which are hereby waived by Borrower).
(b) Lender may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property.
(c) Lender may set off the amounts due Lender under the Loan Documents, whether or not matured and regardless of the adequacy of any other collateral securing the Loan, against any and all accounts, credits, money, securities or other property of Borrower now or hereafter on deposit with, held by or in the possession of Lender to the credit or for the account of Borrower, without notice to or the consent of Borrower. This provision shall exclude and not apply to accounts of any Approved Manager (other than Borrower) and Guarantor.
(d) Lender may enter into possession of the Property and perform any and all work and labor necessary to complete any construction at the Property, including any construction of tenant improvements, and to employ watchmen to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Note and shall be secured by the Mortgage. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an Event interest, to complete the work in the name of DefaultBorrower, and hereby empowers said attorney or attorneys, in the name of Borrower or Lender:
(i) temporarilyTo use any funds of Borrower including any balance which may be held by Lender and any funds (if any) which may remain unadvanced hereunder for the purpose of completing any construction, wholly including any construction of tenant improvements, whether or partially, suspend making payments not in the manner called for in the applicable plans and specifications; this provision shall exclude and not apply to accounts of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the any Approved Manager (other than Borrower) and Guarantor;
(ii) ceaseTo make such additions and changes and corrections to any plans and specifications as shall be necessary or desirable in the judgment of Lender to complete any construction, in whole or in part, making including any further payments under this Agreementconstruction of tenant improvements;
(iii) terminate this AgreementTo employ such contractors, subcontractors, agents, architects and inspectors as shall be necessary or desirable for said purpose;
(iv) disallow To pay, settle or compromise all existing bills and claims which are or part may be liens against the Property, or may be necessary or desirable for the completion of the cost work or the clearance of title to the activity or action not in complianceProperty;
(v) require that To execute all applications and certificates which may be required in the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replacedname of Borrower;
(vi) remove the [General Partner] [Member] of the Borrower To enter into, enforce, modify or cancel Leases and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrowerfix or modify Rents on such terms as Lender may consider proper;
(vii) draw upon To file for record, at Borrower’s cost and apply expense and in Borrower’s name, any escrows and/or reserve accounts notices of completion, notices of cessation of labor, or any other notices that Lender in accordance with their terms;its sole and absolute discretion may consider necessary or desirable to protect its security; and
(viii) call upon To do any and every act with respect to any such construction which Borrower may do in its own behalf. It is understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked. Said attorney-in-fact shall also have the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms power to prosecute and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement defend all actions or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing proceedings in connection with any construction at the Event Property, including any construction of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable lawtenant improvements, and each shall be cumulative to take such actions and to require such performance as Lender may be exercised concurrently, independently, or successively, in any orderdeem necessary.
Appears in 1 contract
Sources: Term Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Remedies on Default. A. Florida Housing If any of the Events of Default hereinabove specified shall occur, Landlord, at any time thereafter, shall have the right to and may exercise any of the following remedies upon an Event of Defaultrights and remedies:
(a) Landlord may, pursuant to written notice thereof to Tenant, immediately terminate this Agreement and, peaceably or pursuant to appropriate legal proceedings, re-enter, retake and resume possession of the Leased Property for Landlord's own account without liability for trespass (Tenant hereby waiving any right to notice or hearing prior to such taking of possession by Landlord) and, for Tenant's breach of and default under this Agreement, recover immediately from Tenant any and all sums and damages due or in existence at the time of such termination, including, without limitation, (i) temporarilyall Rent and other sums, wholly or partiallycharges, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default payments, costs and expenses agreed and/or required to be paid by the Borrower;
Tenant to Landlord hereunder prior to such termination, (ii) ceaseall costs and expenses of Landlord in connection with the recovery of possession of the Leased Property, including reasonable attorney's fees based upon services rendered at hourly rates and court costs, and (iii) all costs and expenses of Landlord in connection with any reletting or attempted reletting of the Leased Property or any part or parts thereof, including, without limitation, brokerage fees, advertising costs, reasonable attorney's fees based upon services rendered at hourly rates based upon service rendered at hourly rates and the cost of any alterations or repairs or tenant improvements which may be reasonably required to so relet the Leased Property, or any part or parts thereof.
(b) Landlord may, pursuant to any prior notice required by law, and without terminating this Agreement, peaceably or pursuant to appropriate legal proceedings, re-enter, retake and resume possession of the Leased Property for the account of Tenant, make such alterations of and repairs and improvements to the Leased Property as may be reasonably necessary in order to relet the same or any part or parts thereof and, directly or through a qualified management or operating company which may include an Affiliated Person of Landlord, operate and manage the Leased Property, and relet or attempt to relet the Leased Property or any part or parts thereof for such term or terms (which may be for a term or terms extending beyond the Term of this Agreement), at such rents and upon such other terms and provisions as Landlord, in whole its sole discretion, may deem advisable. If Landlord takes possession and control of the Leased Property and operates the same, Tenant shall, for so long as Landlord is actively operating the Leased Property, have no obligation to operate the Leased Property but agrees that Landlord, any contract manager or operator, or any new tenant or sublessee may, to the extent permitted by law, operate the Facility under Tenant's Permits, including its Medicaid and Medicare provider agreements, if any, until same are issued in partthe name of the Landlord or the new manager/operator or tenant or sublessee, making as applicable. If Landlord relets or attempts to relet the Leased Property, or obtains a contract manager or operator for the Leased Property, Landlord shall at its sole discretion determine the terms and provisions of any further payments new lease or sublease, or management or operating agreement, and whether or not a particular proposed manager or operator, or new tenant or sublessee, is acceptable to Landlord. Upon any such reletting, or the operation of the Leased Property by a contract manager or operator, all rents or incomes received by the Landlord from such reletting or otherwise from the operation of the Leased Property shall be applied, (i) first, to the payment of all costs and expenses of recovering possession of the Leased Property, (ii) second, to the payment of any costs and expenses of such reletting and or operation, including brokerage fees, advertising costs, reasonable attorney's fees based upon service rendered at hourly rates, a management fee of between five percent (5%) and ten percent (10%) of the gross revenues generated, and the cost of any alterations and repairs reasonably required for such reletting or operation of the Leased Property; (iii) third, to the payment of any indebtedness, other than Rent, due hereunder from Tenant to the Landlord, (iv) fourth, to the payment of all Rent and other sums due and unpaid hereunder, and (v) fifth, the residue, if any, shall be held by the Landlord and applied in payment of future Rent as the same may become due and payable hereunder. If the rents received from such reletting or net income from the operation of the Leased Property during any period shall be less than the Rents and Additional Charges required to be paid during that period by the Tenant hereunder, Tenant shall promptly pay any such deficiency to the Landlord and failing the prompt payment thereof by Tenant to Landlord, Landlord shall immediately be entitled to institute legal proceedings for the recovery and collection of the same. Such deficiency shall be calculated and paid at the time each payment of Minimum Rent, Percentage Rent or any other sum shall otherwise become due under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part , or, at the option of Landlord, at the end of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms Term of this Agreement;
(ix) exercise . Landlord shall, in addition, be immediately entitled to sue for and otherwise rec▇▇▇r from Tenant any rights it may have under other damages occasioned by or resulting from any abandonment of the Recapture Mortgage (in the event Leased Property or other breach of a or default under this Agreement other than a default in the payment of Rent. No such re-entry, retaking or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure resumption of possession of the liens thereunder;Leased Property by the Landlord for the account of Tenant shall be construed as an election on the part of Landlord to terminate this Agreement unless a written notice of such intention shall be given to the Tenant or unless the termination of this Agreement be decreed by a court of competent jurisdiction. Notwithstanding any such re-entry and reletting or attempted reletting of the Leased Property or any part or parts thereof for the account of Tenant without termination, Landlord may at any time thereafter, upon written notice to Tenant, elect to terminate this Agreement or pursue any other remedy available to Landlord for Tenant's previous breach of or default under this Agreement.
(xc) Landlord may, without re-entering, retaking or resuming possession of the Leased Property, sue for all Rent and all other sum▇, charges, payments, costs and expenses due from Tenant to Landlord hereunder (discounted to present value) either: (i) as they become due under this Agreement, taking into account that Tenant's right and option to pay the Rent hereunder on a monthly basis in any particular Fiscal Year is conditioned upon the absence of a Default on Tenant's part in the performance of its obligations under this Agreement, or (ii) at Landlord's option, accelerate the maturity and due date of the whole or any part of the Rent for the entire then-remaining unexpired balance of the Term of this Agreement, as well as all other sums, charges, payments, costs and expenses required to be paid by Tenant to Landlord hereunder, including, without limitation, damages for breach or default of Tenant's obligations hereunder in existence at the time of such acceleration, such that all sums due and payable under this Agreement shall, following such acceleration, be treated as being and, in fact, be due and payable in advance as of the date of such acceleration. Landlord may then proceed to recover and collect all such unpaid Rent and other sums so sued for from Tenant by distress, levy, execution or otherwise. Regardless of which of the foregoing alternative remedies is chosen by Landlord under this subparagraph (c), Landlord shall not be required to relet the Leased Property nor exercise any other right granted to Landlord pursuant to this Agreement, nor, except as may be required by Applicable Laws, shall Landlord be under any obligation to minimize or mitigate Landlord's damages or Tenant's loss as a result of Tenant's breach of or default under this Agreement. Notwithstanding the foregoing, following such time as Landlord may obtain possession of the Leased Property, Landlord or its successor Landlord at the time of any Lease termination, shall continue to make the Leased Property available for lease, on an "as is" basis, and shall turn over the net proceeds thereof to Tenant to the extent actually received by Landlord in respect of any time period for which Landlord shall have received the full amount of Rent payable with respect thereto (albeit perhaps on a basis reasonably discounted for the time value of money or present-value basis).
(d) Landlord may, in addition to any other remedies provided herein, enter upon the Leased Property or any portion thereof and take possession of (i) any and all of Tenant's Personal Property, if any, (ii) Tenant's books and records necessary to operate the Leased Property, and (iii) all the bank accounts concerning, or established for, the Leased Property, without liability for trespass or conversion (Tenant hereby waiving any right to notice or hearing prior to such taking of possession by Landlord) and sell the same by public or private sale, after giving Tenant reasonable notice of the time and place of any public or private sale, at which sale Landlord or its assigns may purchase all or any portion of Tenant's Personal Property, if any, unless otherwise prevented by law. Unless otherwise provided by law and without intending to exclude any other manner of giving Tenant reasonable notice, the requirement of reasonable notice shall be met if such notice is given at least ten (10) days before the date of sale. The proceeds from any such disposition, less all expenses incurred in connection with the taking of possession, holding and selling of such Property (including reasonable attorneys' fees based upon services rendered at hourly rates) shall be credited against Rent which is due hereunder.
(e) Tenant acknowledges that one of the rights and remedies available to Landlord under Applicable Law is to apply to a court of competent jurisdiction for the appointment of a receiver to collect the rents, issues, profits and income of the Leased Property and to manage the operation of the Leased Property. Tenant hereby further acknowledges that may be available the revocation, suspension or material limitation of the certification of the Leased Property for provider status under Medicare or Medicaid (or successor programs) and/or the revocation, suspension or material limitation of the license of the Leased Property as an skilled nursing, assisted living and dementia care facility under the Loan Documents; andlaws of the State will materially and irreparably impair the value of Landlord's investment in the Leased Property. Therefore, in any of such events, and in addition to any other right or remedy of Landlord under this Agreement, Landlord may petition any appropriate court for appointment of a receiver to manage the operation of the Leased Property (or any portion thereof as to which Tenant has suffered the revocation, suspension or material limitation of any license), to collect and disburse all rents, issues, profits and income generated thereby and to preserve or replace to the extent possible the operating license and provider certification of the Leased Property or to otherwise substitute the licensee or provider thereof. The receiver shall be entitled to a reasonable fee for his services as receiver. All such fees and other expenses of the receivership estate shall be payable as Additional Charges under this Agreement. Tenant hereby irrevocably stipulates to the appointment of a receiver under such circumstances and for such purposes and agrees not to contest such appointment.
(xif) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described hereinabove specified and enumerated, Landlord shall have and may exercise the right to invoke any other remedies allowed at law or in Section 10.2A aboveequity as if the remedies of re-entry, unlawful detainer proceedings and other remedies were not herein provided. Accordingly, the Borrower shallmention in this Agreement of any particular remedy shall not preclude Landlord from having or exercising any other remedy at law or in equity. Nothing herein contained shall be construed as precluding the Landlord from having or exercising such lawful remedies as may be and become necessary in order to preserve the Landlord's right or the interest of the Landlord in the Leased Property and in this Agreement, upon demand by Florida Housing following an Event even before the expiration of Defaultany notice periods provided for in this Agreement, (i) repay to Florida Housing, which shall remit if under the particular circumstances then existing the allowance of such funds to notice periods will prejudice or will endanger the Treasuryrights and estate of the Landlord in this Agreement and in the Leased Property. In addition, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms provision of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and feescontrary notwithstanding, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event no provision of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, shall delay or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, limit Landlord's right to seek injunctive relief or successively, in Tenant's obligation to comply with any ordersuch injunctive relief.
Appears in 1 contract
Remedies on Default. A. Florida Housing shall have Upon the right to exercise any of the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence happening of an Event of Default the Landlord may, at its option, and in addition to and without prejudice to all rights and remedies of the Landlord available to it either by any other provision of this Lease or by statute or the general law, to the extent permitted by law, exercise any one or more of the following remedies:
(a) be entitled to the full amount of the current month’s and the next ensuing 3 months’ instalments of Rent which shall immediately become due and payable and the Landlord may immediately distrain for the same, together with any arrears then unpaid;
(b) without further notice or any form of legal process, forthwith re-let or sublet the Leased Premises or any part or parts thereof for whatever term or terms and at whatever rent and upon whatever other terms, covenants and conditions the Landlord acting reasonably considers advisable including, without limitation, the payment or granting of inducements all on behalf of the Tenant; and on each such period re-letting or subletting the rent received by the Landlord therefrom will be applied first to reimburse the Landlord for any such inducements and for any expenses, capital or otherwise, incurred by the Landlord in making the Leased Premises ready for re-letting or subletting; and secondly to the payment of any costs and expenses of re-letting or subletting including brokerage fees and legal fees on a solicitor and client or substantial indemnity basis; and third to the payment of Rent; and the residue, if any, will be held by the Landlord and applied to payment of Rent as it determines appropriatebecomes due and payable. If rent received from re-letting or subletting during any month is less than Rent to be paid during that month hereunder, the Tenant will pay the deficiency which will be calculated and paid monthly on or before the first day of every month; and no re-letting or subletting of the Leased Premises by the Landlord or entry by the Landlord or its agents upon the Leased Premises for the purpose of re-letting or subletting or other act of the Landlord relating thereto including, without limitation, changing or permitting a subtenant to change locks, will be construed as an election on its part to terminate this Lease unless a written notice of termination is given to the Tenant; and if the Landlord elects to re-let or sublet the Leased Premises without terminating, it may afterwards elect to terminate this Lease at any time by reason of any Event of Default then existing;
(c) seize and sell such goods, chattels and equipment of the Tenant as are in the Leased Premises and the Landlord shall apply the proceeds thereof to the costs of any such sale and to all Rent to which the Landlord is then entitled under this Lease. Any such sale may be effected by public auction, private sale or otherwise in a reasonably prudent manner, and either in bulk or by individual item, or partly by one means and partly by another, all as the Landlord in its sole discretion may decide;
(d) terminate this Lease by leaving upon the Leased Premises notice in writing of the termination, and such termination shall be without prejudice to the Landlord’s right to damages; it being agreed that the Tenant shall pay to the Landlord on demand as damages the loss of income of the Landlord to be derived from this Lease and the Leased Premises for the unexpired portion of the Term had it not been terminated; or
(e) re-enter into and upon the Leased Premises or any part thereof in the name of the whole and repossess and enjoy the same as of the Landlord’s former estate, anything herein contained to the contrary notwithstanding; and the Tenant shall pay to the Landlord forthwith upon demand all expenses of the Landlord in re-entering, terminating, re-letting, collecting sums due or payable by the Tenant or realizing upon assets seized or otherwise exercising its rights and remedies under this Section 11.04 including tenant inducements, leasing commissions, legal fees on a solicitor and client or substantial indemnity basis and all disbursements and the expense of keeping the Leased Premises in good order, repairing the same and preparing the same for re-letting. In addition, and without limiting the generality of the foregoing provisions of this Section 11.04, if it determines that [the Tax Credit Investor or] any Lender this Lease is taking appropriate measures to correct the circumstances giving rise to the terminated as a result of or in connection with an Event of Default.
D. Each right and remedy : (i) the Landlord shall have no further liability to pay to the Tenant or any third party any amount on account or in respect of a refund of any Security Deposit, prepaid Rent or prepaid Taxes or any tenant inducement, leasehold improvement allowance, lease takeover or lease subsidy or any other concession or inducement otherwise provided in to the Tenant under or with respect to this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable lawLease, and each any Rent free period otherwise provided to the Tenant hereunder shall be cumulative null and may void and of no further force or effect and Rent shall be exercised concurrentlypayable in full hereunder without regard to any such Rent free period; and (ii) any cash allowance, independentlyinducement payment, and the value of any other benefit paid to or successively, conferred on the Tenant by or on behalf of the Landlord in any orderconnection with the Leased Premises or this Lease shall be recoverable in full as additional Rent and shall be payable to the Landlord on demand.
Appears in 1 contract
Sources: Lease Agreement (Shopify Inc.)
Remedies on Default. A. Florida Housing Whenever any Event of Default shall have occurred and be continuing, Lender, as assignee of Issuer, shall have the right right, at its sole option without any further demand or notice, to exercise take any one or any combination of the following remedies upon an Event remedial steps and which are otherwise accorded to Lender, as assignee of DefaultIssuer, by applicable law:
(ia) temporarilyby notice to Borrower, wholly or partiallydeclare the entire unpaid principal amount of the Loan then outstanding, suspend making payments of Exchange Program Funds all interest accrued and unpaid thereon and all amounts payable under this Agreement pending correction to be forthwith due and payable, whereupon the Loan, all such accrued interest and all such amounts shall become and be forthwith due and payable, without presentment, notice of the deficiency dishonor, protest or default further notice of any kind, all of which are hereby expressly waived by the Borrower;
(iib) ceasetake possession of the Equipment wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the Equipment for use over a term in whole a commercially reasonable manner, all for the account of Lender, provided that Borrower shall remain directly liable for the deficiency, if any, between the rent or in partother amounts paid by a lessee or sublessee of the Equipment pursuant to such lease or sublease during the same period of time, making any further payments under this Agreementafter deducting all costs and expenses, including reasonable attorneys' fees and expenses, incurred with respect to the recovery, repair and storage of the Equipment during such period of time;
(c) take possession of the Equipment wherever situated, without any court order or other process of law and without liability for entering the premises, and sell the Equipment in a commercially reasonable manner. All proceeds from such sale shall be applied in the following manner: FIRST, to pay all proper and reasonable costs and expenses associated with the recovery, repair, storage and sale of the Equipment, including reasonable attorneys' fees and expenses; SECOND, to pay (i) Lender the amount of all unpaid Loan Payments or other obligations (whether direct or indirect owed by Borrower to Lender), if any, which are then due and owing, together with interest and late charges thereon, (ii) Lender the then applicable Prepayment Amount (taking into account the payment of past-due Loan Payments as aforesaid), plus a pro rata allocation of interest, at the rate utilized to calculate the Loan Payments, from the next preceding due date of a Loan Payment until the date of payment by the buyer, and (iii) terminate this Agreement;
(iv) disallow all any other amounts due hereunder, including indemnity payments, taxes, charges, reimbursement of any advances and other amounts payable to Lender or part Issuer hereunder; and THIRD, to pay the remainder of the cost sale proceeds, purchase moneys or other amounts paid by a buyer of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services Equipment to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(viid) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon proceed by appropriate court action to enforce specific performance by Issuer or Borrower of the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms applicable covenants of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or to recover for the Loan Documents) and the Assignment Instrumentsbreach thereof, including but not limited the payment of all amounts due from Borrower. Borrower shall pay or repay to foreclosure Lender or Issuer all costs of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documentssuch action or court action, including, without limitation, reasonable attorney's fees; and
(xie) exercise any other rights and remedies that may be available under take whatever action at law or in equity.
B. In addition equity that may appear necessary or desirable to enforce its rights with respect to the remedies described in Section 10.2A above, the Equipment. Borrower shall, upon demand by Florida Housing following an Event of Default, (i) shall pay or repay to Florida HousingLender or Issuer all costs of such action or court action, which including, without limitation, reasonable attorney's fees. Notwithstanding any other remedy exercised hereunder, Borrower shall remit such funds remain obligated to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to Lender any unpaid portion of the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect theretoPrepayment Amount.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Loan Agreement (Westerbeke Corp)
Remedies on Default. A. Florida Housing Upon the happening of any Event of Default (after the expiration of any applicable grace or cure period), Lender shall have the right right, in addition to any other rights or remedies available to Lender under the Deed of Trust or any of the other Loan Documents or under applicable Law, to exercise any one or more of the following remedies upon rights and remedies:
(a) Lender may accelerate all of Borrower’s Obligations under the Loan Documents whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or intention to accelerate, presentment or demand for payment, protest or notice of nonpayment or dishonor, or notices or demands of any kind or character (all of which are hereby waived by Borrower).
(b) Lender may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property.
(c) Lender may set off the amounts due Lender under the Loan Documents against any and all accounts, credits, money, securities or other property of Borrower now or hereafter on deposit with, held by or in the possession of Lender to the credit or for the account of Borrower, without notice to or the consent of Borrower. This provision shall exclude and not apply to accounts of any Approved Manager (other than Borrower) and Guarantor.
(d) Lender may enter into possession of the Property and perform any and all work and labor necessary to complete any construction at the Property, including any construction of tenant improvements, and to employ watchmen to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Note and shall be secured by the Deed of Trust. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an Event interest, to complete the work in the name of DefaultBorrower, and hereby empowers said attorney or attorneys, in the name of Borrower or Lender:
(i) temporarilyTo use any funds of Borrower including any balance which may be held by Lender and any funds (if any) which may remain unadvanced hereunder for the purpose of completing any construction, wholly including any construction of tenant improvements, whether or partially, suspend making payments not ▇▇▇▇/▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Loan Agreement #438690v6 in the manner called for in the applicable plans and specifications (this provision shall exclude and not apply to accounts of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the any Approved Manager (other than Borrower) and Guarantor);
(ii) ceaseTo make such additions and changes and corrections to any plans and specifications as shall be necessary or desirable in the judgment of Lender to complete any construction, in whole or in part, making including any further payments under this Agreementconstruction of tenant improvements;
(iii) terminate this AgreementTo employ such contractors, subcontractors, agents, architects and inspectors as shall be necessary or desirable for said purpose;
(iv) disallow To pay, settle or compromise all existing bills and claims which are or part may be liens against the Property, or may be necessary or desirable for the completion of the cost work or the clearance of title to the activity or action not in complianceProperty;
(v) require that To execute all applications and certificates which may be required in the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replacedname of Borrower;
(vi) remove the [General Partner] [Member] of the Borrower To enter into, enforce, modify or cancel Leases and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrowerfix or modify Rents on such terms as Lender may consider proper;
(vii) draw upon To file for record, at Borrower’s cost and apply expense and in Borrower’s name, any escrows and/or reserve accounts notices of completion, notices of cessation of labor, or any other notices that Lender in accordance with their terms;its sole and absolute discretion may consider necessary or desirable to protect its security; and
(viii) call upon To do any and every act with respect to any such construction which Borrower may do in its own behalf. It is understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked. Said attorney-in-fact shall also have the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms power to prosecute and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement defend all actions or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing proceedings in connection with any construction at the Event Property, including any construction of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable lawtenant improvements, and each shall be cumulative to take such actions and to require such performance as Lender may be exercised concurrently, independently, or successively, in any orderdeem necessary.
Appears in 1 contract
Sources: Term Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Remedies on Default. A. Florida Housing Whenever any Event of Default under any Lease exists, Lessor shall have the right right, at its sole option without any further demand or notice, to exercise take one or any combination of the following remedies upon an Event of Defaultremedial steps:
(ia) temporarilyBy written notice to ▇▇▇▇▇▇, wholly or partially, suspend making payments of Exchange Program Funds declare all Rental Payments and other amounts payable by Lessee under this Agreement pending correction that Lease to the end of the deficiency then current Original Term or default by the BorrowerRenewal Term to be due;
(b) With or without terminating that Lease, Lessor may, upon 5 days written notice to Lessee, enter the premises where any Equipment that is subject to that Lease is located and retake possession of that Equipment or require Lessee at Lessee's expense to promptly return any or all of the Equipment to the possession of Lessor at such place within the United States as Lessor shall specify, and sell or lease the Equipment or, for the account of Lessee, sublease the Equipment, continuing to hold Lessee liable for the difference between (i) the Rental Payments and other amounts payable by Lessee under that Lease plus the then-applicable Purchase Option Price for that Equipment and (ii) ceasethe net proceeds of any such sale, leasing or subleasing (after deducting all expenses of Lessor in whole or in part, making any further payments exercising its remedies under this Agreement;
, including without limitation all expenses of taking possession, storing, reconditioning and selling or leasing the Equipment and all brokerage, auctioneers' and attorneys' fees) provided that the amount of Lessee’s liability under this subparagraph (iiib) terminate this Agreement;
(iv) disallow all or part shall not exceed the Rental Payments and other amounts otherwise due under that Lease plus the remaining Rental Payments and other amounts payable by Lessee under that Lease to the end of the cost of the activity then current Original Term or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan DocumentsRenewal Term; and
(xic) exercise any other rights and remedies that Lessor may be available under take whatever action at law or in equity.equity may appear necessary or desirable to enforce its rights under that Lease or as the owner of any or all of the Equipment that is subject to that Lease. In addition, whenever an Event of Default exists with respect to any Rental Payment required by a particular Schedule or with respect to any other payment, covenant, condition, agreement, statement, representation or warranty set forth in that Schedule or applicable to that Schedule or the Equipment listed therein, Lessor shall have the right, at its sole option without any further demand or notice, to take one or any combination of the following remedial steps:
B. (d) By written notice to Lessee, Lessor may declare all Rental Payments payable by Lessee pursuant to that Schedule and other amounts payable by Lessee under this Agreement to the end of the then current Original Term or Renewal Term to be due;
(e) With or without terminating that Schedule, Lessor may, upon 5 days written notice to Lessee, enter the premises where the Equipment listed in that Schedule is located and retake possession of that Equipment or require Lessee at Lessee's expense to promptly return any or all of that Equipment to the possession of Lessor at such place within the United States as Lessor shall specify, and sell or lease that Equipment or, for the account of Lessee, sublease that Equipment, continuing to hold Lessee liable for the difference between (i) the Rental Payments payable by Lessee pursuant to that Schedule and other amounts related to that Schedule or the Equipment listed therein that are payable by Lessee hereunder plus the then applicable Purchase Option Price for that Equipment, and (ii) the net proceeds of any such sale, leasing or subleasing (after deducting all expenses of Lessor in exercising its remedies under this Agreement, including without limitation all expenses of taking possession, storing, reconditioning and selling or leasing such Equipment and all brokerage, auctioneers' and attorneys' fees) provided that the amount of Lessee’s liability under this subparagraph (e) shall not exceed the Rental Payments and other amounts otherwise due under that Schedule plus the remaining Rental Payments and other amounts payable by Lessee under that Schedule to the end of the then current Original Term or Renewal Term; and
(f) Lessor may take whatever action at law or in equity may appear necessary or desirable to enforce its rights under that Schedule, this Agreement with respect to that Schedule and the Equipment listed therein. In addition to the remedies described in Section 10.2A specified above, Lessor may charge interest on all amounts due to it at the Borrower shallrate of 10% per annum or the maximum amount permitted by law, upon demand by Florida Housing following an Event whichever is less. The exercise of Default, (i) repay to Florida Housing, which shall remit any such funds to the Treasury, remedies respecting any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the such Event of Default and/or the exercise shall not relieve Lessee of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriateany other liabilities under any other Schedules, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all related to any other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement Schedule or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any orderEquipment listed therein.
Appears in 1 contract
Sources: Financing Agreement
Remedies on Default. A. Florida Housing shall have On the right to occurrence of any Event of Default, the Purchaser may exercise any one or more of the following remedies upon an Event of Defaultas the Purchaser, in its sole discretion, shall elect:
(ia) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction Declare the unpaid portion of the deficiency then outstanding principal components of the Installment Payments immediately due and payable, without notice or default by demand to the BorrowerTown;
(iib) cease, in whole Proceed by appropriate court action to enforce the performance by the Town of the applicable covenants of this Contract or in part, making to recover for any further payments under this Agreementbreach thereof;
(iiic) terminate Exercise or direct the Deed of Trust Trustee to exercise all the rights and remedies of a secured party or creditor under the Uniform Commercial Code of the State and the general laws of the State with respect to the enforcement of the security interest granted or reserved hereunder and under the Deed of Trust including, without limitation, to the extent permitted by law, re-enter and take possession of the Mortgaged Property without any court order or other process of law and without liability for entering the premises and to sell, lease, sublease or make other disposition of the same in a commercially reasonable manner for the account of the Town, and apply the proceeds of any such sale, lease, sublease or other disposition, after deducting all costs and expenses, including court costs and attorneys’ fees, incurred with the recovery, repair, storage and other sale, lease, sublease or other disposition, toward the balance due under this AgreementContract and, thereafter, to pay any remaining proceeds to the Town;
(ivd) disallow all Enforce its security interest in the Mortgaged Property or part direct the Deed of Trust Trustee to institute foreclosure proceedings under the cost Deed of Trust and sell the activity or action not in complianceMortgaged Property;
(ve) require that the Developer, the Manager, the Contractor or Pursue any other party providing services remedy available at law or equity to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entityPurchaser. NOTWITHSTANDING ANY OTHER PROVISIONS HEREIN, acceptable in advance by Florida HousingIT IS THE INTENT OF THE PARTIES HERETO TO COMPLY WITH SECTION 160A-20 OF THE GENERAL STATUTES OF NORTH CAROLINA, to act in its steadAS AMENDED. NO DEFICIENCY JUDGMENT MAY BE ENTERED AGAINST THE TOWN IN FAVOR OF THE PURCHASER IN VIOLATION OF SECTION 160A-20 OF THE GENERAL STATUTES OF NORTH CAROLINA, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment InstrumentsAS AMENDED, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equityINCLUDING, WITHOUT LIMITATION, ANY DEFICIENCY JUDGMENT FOR AMOUNTS THAT MAY BE OWED HEREUNDER WHEN THE SALE OF ALL OR ANY PORTION OF THE MORTGAGED PROPERTY IS INSUFFICIENT TO PRODUCE ENOUGH MONEY TO PAY IN FULL ALL REMAINING OBLIGATIONS UNDER THIS CONTRACT.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Installment Financing Contract
Remedies on Default. Landlord shall have the following remedies if an Event of Default occurs. These remedies are not exclusive; they are cumulative in addition to any remedies set forth in this Lease, and in addition to any remedies now or later allowed by law. These remedies are subject to the provisions of the Bankruptcy Code of the United States and any other law in effect at the time of default to the extent required by such law.
A. Florida Housing Landlord can continue this Lease in full force and effect. In such case, the Lease will continue in effect so long as Landlord does not terminate Tenant’s right to possession, and Landlord shall have the right to exercise any collect rent when due. During the period Tenant is in default, Landlord can take possession of the following remedies upon an Event Property and Improvements and let them, or any part of Defaultthem, to third parties for Tenant’s account. Tenant shall be liable immediately to Landlord for all reasonable costs Landlord incurs in reletting the Property including, without limitation, broker’s commissions, expenses of remodeling the Property required by the reletting, and like costs. Reletting can be for a period shorter or longer than the remaining Term of this Lease. Tenant shall pay to Landlord the rent due under this Lease on the date the rent is due, less the rent Landlord receives from any reletting. No act by Landlord allowed by this Paragraph shall terminate this Lease unless Landlord notifies Tenant that Landlord elects to terminate this Lease.
B. Landlord can terminate ▇▇▇▇▇▇’s right to possession of the Property at any time. No act by Landlord other than giving notice to Tenant shall terminate this Lease. Acts of maintenance, efforts to relet the Property or the appointment of a receiver on ▇▇▇▇▇▇▇▇’s initiative to protect ▇▇▇▇▇▇▇▇’s interest under this Lease shall not constitute a termination of Tenant’s right to possession. On termination, Landlord has the right to recover from Tenant:
(i1) temporarilyThe worth, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction at the time of the deficiency or default by award, of the Borrowerunpaid rent that had been earned at the time of termination of this Lease;
(ii2) ceaseThe worth, in whole or in partat the time of the award, making any further payments under of the amount by which the unpaid rent that would have been earned after the date of termination of this AgreementLease until the time of the award exceeds the amount of the loss of rent that ▇▇▇▇▇▇ proves could have been reasonably avoided;
(iii3) terminate this AgreementThe worth, at the time of the award, of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of the loss of rent that ▇▇▇▇▇▇ proves could have been reasonably avoided;
(iv4) disallow Any other amount, and court costs, necessary to compensate Landlord for all or part detriment proximately caused by ▇▇▇▇▇▇’s default. “The worth, at the time of the cost award,” as used in Subdivisions (1), (2) and (3) of this subparagraph B is to be computed by allowing interest at the activity lesser of eighteen percent (18%) per annum or action not in compliance;
(v) require the maximum rate allowed by usury law at that the Developertime. For purposes of this clause, the Manager, rent due for any calendar month after reentry by Landlord shall be deemed to be the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instrumentshighest average monthly Rent, including but not limited to foreclosure of the liens thereunder;
(x) exercise any additional rent and other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housingcharges, which shall remit have been payable for any consecutive twelve-month period prior to such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect theretoreentry.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Lease Agreement
Remedies on Default. A. Florida Housing shall have Upon the right happening of an Event of Default the Landlord may, at its option, and in addition to and without prejudice to all rights and remedies of the Landlord available to it either by any other provision of this Lease or by statute or the general law, exercise any one or more of the following remedies upon an Event of Defaultremedies:
(ia) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction be entitled to the full amount of the deficiency or default by current month’s and the Borrowernext ensuing 3 months’ instalments of Rent which shall immediately become due and payable and the Landlord may immediately disfrain for the same, together with any arrears then unpaid;
(iib) ceasewithout notice or any form of legal process, forthwith re-let or sublet the Leased Premises or any part or parts thereof for whatever term or terms and at whatever rent and upon whatever other terms, covenants and conditions the Landlord considers advisable including, without limitation, the payment or granting of inducements all on behalf of the Tenant; and on each such re-letting or subletting the rent received by the Landlord therefrom will be applied first to reimburse the Landlord for any such inducements and for any expenses, capital or otherwise, incurred by the Landlord in whole making the Leased Premises ready for re-letting or in partsubletting; and secondly to the payment of any costs and expenses of re-letting or subletting including brokerage fees and legal fees on a solicitor and client basis; and third to the payment of Rent; and the residue, making if any, will be held by the Landlord and applied to payment of Rent as it becomes due and payable. If rent received from re-letting or subletting during any further payments under month is less than Rent to be paid during that month hereunder, the Tenant will pay the deficiency which will be calculated and paid monthly on or before the first day of every month; and no re-letting or subletting of the Leased Premises by the Landlord or entry by the Landlord or its agents upon the Leased Premises for the purpose of re-letting or subletting or other act of the Landlord relating thereto including, without limitation, changing or permitting a subtenant to change tacks, will be construed as an election on its part to terminate this AgreementLease unless a written notice of termination is given to the Tenant; and if the Landlord elects to re-let or sublet the Leased Premises without terminating, it may afterwards elect to terminate this Lease at any time by reason of any Event of Default then existing;
(iiic) seize and sell such goods, chattels and equipment of the Tenant as are in the Leased Premises and the Landlord may, but shall not be obligated to, apply the proceeds thereof to all Rent to which the Landlord is then entitled under this Lease. Any such sale may be effected by public, auction, private sale or otherwise, and either in bulk or by individual item, or partly by one means and partly by another, all as the Landlord in its sole discretion may decide;
(d) terminate this Agreement;Lease by leaving upon the Leased Premises notice in writing of the termination, and such termination shall be without prejudice to the Landlord’s right to damages; it being agreed that the Tenant shall pay to the Landlord on demand as damages the loss of income of the Landlord to be derived from this Lease and the Leased Premises for the unexpired portion of the Term had it not been terminated; or
(ive) disallow all re-enter into and upon the Leased Premises or any part thereof in the name of the cost whole and repossess and enjoy the same as of the activity or action not in compliance;
(v) require that the DeveloperLandlord’s former estate, the Manager, the Contractor or any other party providing services anything herein contained to the Borrower be replaced;
(vi) remove contrary notwithstanding; and the [General Partner] [Member] Tenant shall pay to the Landlord forthwith upon demand all expenses of the Borrower and require Landlord in reentering, terminating, re-letting, collecting sums due or payable by the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in Tenant or realizing upon assets seized or otherwise exercising its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under this Section 11.04 including tenant inducements, leasing commissions, legal fees on a solicitor and client basis and all disbursements and the Loan Documents; and
(xi) exercise any other rights expense of keeping the Leased Premises in good order, repairing the same and remedies that may be available under law or in equity.
B. preparing the same for re-letting. In addition to addition, and without limiting the remedies described in generality of the foregoing provisions of this Section 10.2A above, the Borrower shall11.04, upon demand by Florida Housing following the happening of an Event of Default, and whether or not this Lease is terminated in accordance with such provisions: (i) repay the Landlord shall have no further liability to Florida Housing, which shall remit such funds pay to the Treasury, Tenant or any third party any amount on account or in respect of Exchange Program Funds previously disbursed a refund of any Security Deposit, prepaid Rent or prepaid Taxes or any tenant inducement, leasehold improvement allowance, lease takeover or lease subsidy or any other concession or inducement otherwise provided to the Borrower Tenant under or with respect to this Lease, and any Rent free period otherwise provided to the terms Tenant hereunder shall be null and void and of this Agreement no further force or effect and Rent shall be payable in full hereunder without regard to any such Rent free period; and (ii) pay any cash allowance, inducement payment, and the value of any other benefit paid to Florida Housing an amount equal to or conferred on the costs and fees, including attorneys’ fees and costs, incurred Tenant by Florida Housing or on behalf of the Landlord in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period Leased Premises or this Lease shall be recoverable in full as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise additional Rent and shall be payable to the Event of DefaultLandlord on demand.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Lease Agreement (Telvent Git S A)
Remedies on Default. A. Florida Housing shall have the right to exercise any of the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon Upon the occurrence of an Event of Default by Tenant under this Lease, then without any notice or demand whatsoever being required, Landlord shall have the right, but not any duty, to exercise, on a cumulative basis, any or all of the following remedies:
18.1 Landlord may continue this Lease in fall force and effect, and proceed to collect all rent when due;
18.2 Landlord may continue this Lease in fun force and effect and may enter the Premises and relate all or any part of them to other parties for such Tenant's account. Tenant shall be liable to pay on. demand to Landlord all costs Landlord incurs in entering the Premises and reletting them, including without limitation, broker's commissions, expenses of repairs and remodeling, attorney's fees and all other actual costs. Reletting may be for a period as it determines appropriateshorter or longer than the remaining term of this Lease. During the term of any reletting, if it determines that [Tenant shall pay to Landlord the Tax Credit Investor or] rent due under this Lease on the dates due, less any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Defaultnet rents Landlord receives from any reletting.
D. Each 18.3 Landlord may, without any notice or demand whatsoever, terminate Tenant's rights under this Lease at any time, on termination, Landlord shall have the right to recover from Tenant all costs, expenses, losses and remedy provided damages caused by said default and termination including but not limited to:
18.3.1 An amount equal to all unpaid rent that had accrued at the time of termination of this Lease; plus
18.3.2 An amount equal to (a) the p resent value of all rent (assuming that the Minimum Guaranteed Rent and the amount of the percentage rent and the Common Area Maintenance costs payable hereunder for the future will be the same as for the most recent Lease Year) that would have accrued under this Lease had this Lease not been terminated, for the period of time between (i) the date of calculation of rent under subsection 18.3.2, and (ii) the date the Term would have ended if this Lease had not been prematurely terminated; less (b) the present value of rent at that time actually collected for comparable leases of comparable space in the trade area in which the Shopping Center is located; plus
18.3.3 An amount equal to (a) alt actual costs and expenses, including but not limited to attorney's fees, that have at that time been incurred by Landlord, plus (b) the present value of all actual costs and expenses, including but not limited to attorney's fees at both the trial and appellate levels that with reasonable certainty are likely to have to be incurred thereafter by Landlord that are reasonably necessary to compensate Landlord for all economic losses proximately caused by Tenant's default. In computing the present value of amounts for purposes of this Agreement is distinct subsection 18.3, a capitalization rate of eight percent (8%) per annum shall be used.
18.4 Without any showing of need or the presence of any statutory or common law grounds, all of which are hereby expressly waived, Landlord may have a receiver appointed to take possession of the Premises and relet in accordance with subsection 18.2.
18.5 Landlord may cure any default as Tenant's cost. If Landlord, at any time, by reason of Tenant's default, pays any sum to cure any default, the sum so paid by Landlord shall be immediately due from Tenant to Landlord on demand, and shall bear interest at the rate of eighteen percent (18%) per annum from the date paid by Landlord until Landlord shall have been reimbursed by Tenant. Said sum, together with interest thereon, shall be additional rent.
18.6 Landlord may apply all or part of the Security Deposit to pay any sums owed by Tenant to Landlord.
18.7 Landlord may exercise any or all other rights or remedies under this Agreementavailable at law or equity, including, without limitation, the Recapture Mortgageright to restraining orders, injunctions and decrees of specific performance. Pursuit of any of the foregoing remedies shall not preclude pursuit of any of the other remedies herein provided or any other remedies provided by law or at equity, nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damages accruing to Landlord by reason of the violation of any of the covenants and provisions herein contained. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an Event of Default by Tenant shall not be deemed or construed to constitute a waiver of such Event of Default. The failure of Landlord to insist upon strict performance of any of the terms, conditions and covenants contained in this Lease shall not be deemed to be a waiver of any rights or remedies that Landlord may have and shall not be deemed a waiver of any subsequent breach or default in the terms, conditions and covenants herein contained except as may be expressly waived in writing. Tenant hereby waives trial by jury in any action, proceeding or counterclaim brought by Landlord against the Tenant on any matter whatsoever arising out of or in any way connected with this Lease, the Assignment Instrumentsrelationship of Landlord and Tenant created hereby, the Extended Use Agreement Tenant's use or occupancy of the Loan DocumentsPremises and/or any claim for injury or damage. In the event Landlord commences any action or proceeding for nonpayment of any rent or other charges due hereunder, Tenant agrees not to interpose any noncompulsory counterclaim of any nature or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, description in any ordersuch action or proceeding.
Appears in 1 contract
Sources: Lease Agreement (800america Com Inc)
Remedies on Default. A. Florida Housing shall have the right to exercise Notwithstanding any provision of the following remedies upon an Event of Default:
(i) temporarily, wholly any document or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency instrument evidencing or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services relating to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of DefaultLiabilities, (i) repay to Florida Housingupon the occurrence of any Event of Default specified in Sections 5(a) or (b) above, which shall remit such funds Secured Party may, to the Treasury, any amount of Exchange Program Funds previously disbursed extent authorized by the Noteholders to the Borrower do so under the terms Collateral Sharing Agreement, declare all of this Agreement the Liabilities immediately due and payable without notice or demand of any kind, and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default specified in Sections 5(c) or (d) above, all of the Liabilities shall be immediately and automatically due and payable without action of any kind on the part of Secured Party. Debtor expressly waives protest, notice, presentment, dishonor and demand of any kind. In its capacity as Collateral Agent for the holders of the Notes under the Collateral Sharing Agreement, Secured Party may exercise from time to time any rights and remedies available under the Uniform Commercial Code of Illinois, including the right to have Debtor assemble the Collateral and deliver it to a place designated by Secured Party. Debtor shall pay all related expenses, including reasonable attorneys' fees. If any notification of intended disposition of any of the Collateral is required by law, such period as it determines appropriatenotification, if it determines that [mailed, shall be deemed reasonably and properly given if mailed at least ten (10) days before the Tax Credit Investor or] any Lender is taking appropriate measures disposition, postage prepaid, addressed to correct Debtor at the circumstances giving rise address set forth under its signature hereto. Secured Party shall, in addition to the Event and not in limitation of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies of offset under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, have the right to appropriate and each apply all of the Collateral in its possession to payment of the Liabilities subject to the rights of any other secured party permitted hereunder. Secured Party may proceed to sell or otherwise dispose of the Collateral at public or private sale for cash or credit; provided, however, that Debtor shall be cumulative and credited with proceeds of such sale only when the proceeds are actually received by Secured Party. Any proceeds of the Collateral may be exercised concurrentlyapplied by Secured Party to the payment of expenses and costs to exercise of Secured Party's rights hereunder, independently, or successively, in and any orderbalance of such proceeds shall be applied toward the Liabilities pro rata for the benefit of all holders of the Notes. Any balance remaining shall be returned to the Debtor.
Appears in 1 contract
Remedies on Default. A. Florida Housing shall have 20.1 Upon the right to exercise any happening of the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay the Agreement may be terminated at the option of the Lessor or Lessee by notice in writing to Florida Housing, which shall remit such funds Lessee or Lessor. The notice may be given at any time after any grace period for default given under Section B.19. All of ▇▇▇▇▇▇'s rights in relation to the TreasurySite and in all improvements on the Site will terminate as of the date of termination and/or expiration. Promptly after such notice, unless agreed upon by the Parties in writing, ▇▇▇▇▇▇ will surrender and vacate the Site and all improvements in broom clean and in good condition. Lessor may reenter and take possession of the Property and of all improvements and eject some or all parties in possession except any amount of Exchange Program Funds previously disbursed sub-lessee qualifying under any non-disturbance agreement by ▇▇▇▇▇▇. Lessor and ▇▇▇▇▇▇ will have all rights and remedies available to the Borrower under the terms of this Agreement Lessor and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies Lessee under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable at law, and each in equity. Termination under this Section will not relieve Lessee from the payment of any sum then due to Lessor or from any claim for damages previously accrued or then accruing against Lessee. Termination under this Section will not relieve Lessor from the payment of any sum then due to Lessee or from any claim for damages previously accrued or then accruing against Lessor. If the Site is abandoned by Lessee in connection with a default, termination shall be cumulative automatic and may be exercised concurrentlywithout notice.
20.2 In the event Lessor terminates this Lease, independentlythe Lessor, or successivelythose having the Lessor's estate in the Property, lawfully at its option, may enter into and upon said demised Property and every part thereof, and repossess the same of Lessor's former estate, and expel said Lessee and those claiming by and through or under Lessee, and remove Lessee's effects at Lessee's expense, forcibly if necessary, and store the same, without being deemed guilty of trespass and without prejudice to any remedy which otherwise might be used for arrears of rent or preceding breach of covenant. If Lessor terminates the Agreement, Lessor will be entitled to recover immediately, without waiting until the due date of any future rent or until the date fixed for expiration of this Agreement, and in addition to any orderother damages recoverable by Lessor, the reasonable costs of reentry and reletting including, without limitation, the cost of any clean-up, refurbishing, removal of ▇▇▇▇▇▇’s property and fixtures, and/or any other expense occasioned by ▇▇▇▇▇▇’s failure to quit the Property upon termination and to leave the Property in the required condition, including, without limitation, any remodeling costs, attorney fees, court costs, broker commissions, and advertising costs.
Appears in 1 contract
Sources: Ground Lease Agreement
Remedies on Default. A. Florida Housing shall have Upon the right occurrence of an event of default and at any time thereafter, Landlord, subject to exercise all applicable laws, may take any or all of the following remedies upon an Event of Defaultactions:
(ia) temporarilyIn the case of abandonment, wholly or partiallyLandlord may at its option re-enter, suspend making payments of Exchange Program Funds under this Agreement pending correction take possession of the deficiency Premises and remove all persons and property therefrom (such property as may be removed may be stored in a public warehouse or default by elsewhere at the Borrower;cost of, and for the account of Tenant). Landlord shall not be deemed guilty of trespass or liable for the loss or damage occasioned thereby.
(iib) ceaseShould Landlord elect to re-enter the Premises, or should it take possession pursuant to legal proceedings or pursuant to any notice provided for by law, Landlord may, without terminating this Lease make such alterations and repairs as may be necessary in whole order to relet the Premises, and relet the Premises or any part thereof upon such terms and conditions as Landlord in partits sole discretion may deem advisable. The rentals resulting from such reletting shall be applied first, making to the payment of any further payments under costs and expenses of reletting, including brokerage fees and attorneys’ fees, and of costs of such alterations and repairs; second, to the payment of Minimum Rent and Additional Rent, together with interest thereon at twelve percent (12%) per annum, due and unpaid hereunder; and the residual, if any, shall be held by Landlord and applied in payment of future rent or damage as the same may become due and payable hereunder. If rentals received from such reletting during any month are less than that to be paid during that month by Tenant hereunder, Tenant shall forthwith pay any such deficiency to Landlord. No such re-entry or taking possession of said premises by Landlord shall be construed as an election on its part to terminate this Agreement;Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. If Tenant shall, after default, voluntarily give up possession to Landlord, deliver to Landlord the keys to the Premises, or both, such actions shall be deemed to be in compliance with Landlord’s rights and the acceptance thereof by Landlord shall not constitute a surrender of the Premises or a termination of this Lease.
(iiic) Landlord may at any time after default elect to terminate this Agreement;
(iv) disallow Lease. Upon such termination, Landlord may recover from Tenant all or part damages it may incur by reason of such breach, including the cost of recovering the activity Premises, reletting commissions and expenses, costs of repair to the Premises, reasonable attorneys’ fees, and including the worth at the time of such termination of the excess, if any, of the amount of Minimum Rent and Additional Rent reserved in this Lease for the remainder of the Lease Term over the then reasonable rental value of the Premises for the remainder of the Lease Term, all of which amounts shall be immediately due and payable from Tenant to Landlord. In determining the amount which would be payable pursuant to this subparagraph, the annual rent for each year remaining in the Lease Term shall be equal to the average of the total annual Minimum Rent and Additional Rent paid by Tenant from the Lease Commencement Date to the time of default, or action not in compliance;during the preceding three (3) full calendar years, whichever period is shorter.
(vd) require that the DeveloperNothing contained in this Lease will limit or prejudice Landlord’s right to prove and obtain as liquidated damages in any bankruptcy, the Managerinsolvency, the Contractor receivership, reorganization, or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entitydissolution proceeding, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and feesmaximum allowable by any Laws governing such proceeding in effect at the time when such damages are to be proved, including attorneys’ fees and costswhether or not such amount be greater, incurred by Florida Housing in connection with equal or less than the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period amounts recoverable, either as it determines appropriatedamages or Rent, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any orderLease.
Appears in 1 contract
Remedies on Default. A. Florida Housing shall have Upon the right occurrence of any event of default the Trustee may, subject to Section 9.7, or at the request of the Owners of not less than a majority in aggregate principal amount of the Notes then Outstanding shall, without any further demand or notice, exercise any one or more of the following remedies upon an Event of Defaultremedies:
(ia) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction declare the entire amount of the deficiency or default by principal component and accrued and unpaid interest component of the BorrowerInstallment Payments to be immediately due and payable;
(iib) cease, in whole exercise all remedies available at law or in partequity or under the Deed of Trust, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part including foreclosure and sale of the cost Mortgaged Property, and apply the proceeds of any such sale or other disposition, after deducting all costs and expenses, including court costs and reasonable attorneys’ fees, incurred with the recovery, repair, storage and sale or other disposition costs as provided in the Deed of Trust, toward the principal component and accrued and unpaid interest of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] balance of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (Installment Payments in the event of a default under this Agreement or manner provided in the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan DocumentsMaster Trust Agreement; and
(xic) exercise any other rights and remedies that may be available under law or in equity.
B. In addition proceed by appropriate court action to enforce performance by the remedies described in Section 10.2A above, County of the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms applicable covenants of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Master Agreement or to recover for the Loan Documentsbreach thereof. NOTWITHSTANDING ANY OTHER PROVISIONS HEREIN, or otherwise afforded by applicable lawIT IS THE INTENT OF THE PARTIES HERETO TO COMPLY WITH SECTION 160A-20 OF THE GENERAL STATUTES OF NORTH CAROLINA. NO DEFICIENCY JUDGMENT MAY BE RENDERED AGAINST THE COUNTY IN FAVOR OF THE TRUSTEE OR ANY OTHER PERSON IN VIOLATION OF SAID SECTION 160A-20 INCLUDING, and each shall be cumulative and may be exercised concurrentlyWITHOUT LIMITATION, independently, or successively, in any orderANY DEFICIENCY JUDGMENT FOR AMOUNTS THAT MAY BE OWED HEREUNDER WHEN THE SALE OR DISPOSITION OF ALL OR ANY PORTION OF THE MORTGAGED PROPERTY IS INSUFFICIENT TO PRODUCE SUFFICIENT FUNDS TO PAY IN FULL ALL REMAINING OBLIGATIONS HEREUNDER.
Appears in 1 contract
Remedies on Default. A. Florida Housing Whenever an Event of Default described in Section 11.01(f) hereof shall have occurred, the Prepayment Amount automatically shall be due and payable, whereupon the Prepayment Amount automatically shall become and be forthwith due and payable without presentment, notice of dishonor, protest or further notice of any kind, all of which are hereby expressly waived by Borrower. Whenever any Event of Default shall have occurred, Lender shall have the right right, at its sole option without any further demand or notice, to exercise take any one or any combination of the following remedies upon an Event remedial steps insofar as the same are available to secured parties under Article 9 of Defaultthe UCC in effect in the State from time to time and which are otherwise accorded to Lender by applicable law:
(ia) temporarilyby notice to Issuer and Borrower, wholly declare the Prepayment Amount to be forthwith due and payable, whereupon the Prepayment Amount shall become and be forthwith due and payable, without presentment, notice of dishonor, protest or partiallyfurther notice of any kind, suspend making payments all of Exchange Program Funds under this Agreement pending correction of the deficiency or default which are hereby expressly waived by the Borrower;
(iib) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part take possession of the cost Collateral wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the activity Collateral for use over a term in a commercially reasonable manner, all for the account of Lender, provided that Borrower shall remain directly liable for the deficiency, if any, between the rent or action not in compliance;
(v) require that the Developer, the Manager, the Contractor other amounts paid by a lessee or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] sublessee of the Borrower Collateral pursuant to such lease or sublease during the same period of time, after deducting all costs and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instrumentsexpenses, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including reasonable attorneys’ fees and costsexpenses, incurred by Florida Housing with respect to the recovery, repair and storage of the Collateral during such period of time;
(c) take possession of the Collateral wherever situated, without any court order or other process of law and without liability for entering the premises, and sell the Collateral in connection a commercially reasonable manner. All proceeds from such sale shall be applied in the following manner: FIRST, to pay all proper and reasonable costs and expenses associated with the Event recovery, repair, storage and sale of Default and/or the exercise Collateral, including reasonable attorneys’ fees and expenses; SECOND, to pay (i) Lender the amount of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriateall unpaid Loan Payments or other obligations (whether direct or indirect owed by Borrower to Lender), if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right any, which are then due and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreementowing, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, together with interest and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.late charges thereon,
Appears in 1 contract
Sources: Loan Agreement
Remedies on Default. A. Florida Housing shall have the right to exercise any of the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty Except as provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix18(e) exercise any rights it may have under the Recapture Mortgage (above, in the event of a default under this Agreement Default, the Landlord may take any one or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure more of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or following remedial steps in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies it may have at law or in equity:
(a) Landlord may terminate this Lease by giving notice of termination, in which event this Lease shall expire and terminate on the date specified in such notice of termination, with the same force and effect as though the date so specified were the date originally fixed as the termination date of the term of this Lease, and all rights of Tenant under the Lease and in and to the Premises shall expire and terminate, and Tenant shall remain liable for all obligations under this AgreementLease arising up to the date of such termination and Tenant shall surrender the Premises to Landlord on the date specified in such notice.
(b) Landlord may, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable lawfrom time to time without terminating this Lease, and without releasing Tenant in whole or in part form its obligation to pay monthly rental and perform all of the covenants, conditions, and agreement to be performed by Tenant as provided in this Lease, make such alterations and repairs as may be necessary in order to re-let the Premises, and after making such alterations and repairs, Landlord may, but shall not be obligated to, re-let the Premises or any part thereof for such term or terms at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable or acceptable; upon each re-letting, all rentals received by Landlord from such re-letting shall be cumulative applied first to the payment of any cost and expenses of such re-letting, including brokerage fees and attorney's fees and all costs of such alterations and repairs, and second to the payment of the monthly rental due and unpaid hereunder, and the residue, if any, shall be held by Landlord and paid to Tenant. In no event shall Tenant be entitled to any excess rental received by Landlord over and above charges that Tenant is obligated to pay hereunder as monthly rental; if such rentals received from such re-letting during any month are less than those to be paid during the month by Tenant hereunder, including monthly rental, Tenant shall pay any such deficiency to Landlord, which deficiency shall be calculated and paid monthly. Tenant shall also pay to Landlord as soon as ascertained and upon demand all costs and expenses incurred by Landlord in connection with such re-letting and making any alterations and repairs which are not covered by the rental received under such re-letting; notwithstanding any such re-letting without termination, landlord may be exercised concurrently, independently, or successively, in at any ordertime thereafter elect to terminate this Lease for such previous breach.
Appears in 1 contract
Remedies on Default. A. Florida Housing shall have Upon the right happening of an Event of Default the Landlord may, at its option, and in addition to and without prejudice to all rights and remedies of the Landlord available to it either by any other provision of this Lease or by statute or the general law, exercise any one or more of the following remedies upon an Event of Defaultremedies:
(ia) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction be entitled to the full amount of the deficiency or default by current month’s and the Borrowernext ensuing 3 months’ instalments of Rent which shall immediately become due and payable and the Landlord may immediately distrain for the same, together with any arrears then unpaid;
(iib) ceasewithout notice or any form of legal process, forthwith re-let or sublet the Leased Premises or any part or parts thereof for whatever term or terms and at whatever rent and upon whatever other terms, covenants and conditions the Landlord considers advisable including, without limitation, the payment or granting of inducements all on behalf of the Tenant; and on each such re-letting or subletting the rent received by the Landlord therefrom will be applied first to reimburse the Landlord for any such inducements and for any expenses, capital or otherwise, incurred by the Landlord in whole making the Leased Premises ready for re-letting or in partsubletting; and secondly to the payment of any costs and expenses of re-letting or subletting including brokerage fees and legal fees on a solicitor and client or substantial indemnity basis; and third to the payment of Rent; and the residue, making if any, will be held by the Landlord and applied to payment of Rent as it becomes due and payable. If rent received from re-letting or subletting during any further payments under month is less than Rent to be paid during that month hereunder, the Tenant will pay the deficiency which will be calculated and paid monthly on or before the first day of every month; and no re-letting or subletting of the Leased Premises by the Landlord or entry by the Landlord or its agents upon the Leased Premises for the purpose of re-letting or subletting or other act of the Landlord relating thereto including, without limitation, changing or permitting a subtenant to change locks, will be construed as an election on its part to terminate this AgreementLease unless a written notice of termination is given to the Tenant; and if the Landlord elects to re-let or sublet the Leased Premises without terminating, it may afterwards elect to terminate this Lease at any time by reason of any Event of Default then existing;
(iiic) seize and sell such goods, chattels and equipment of the Tenant as are in the Leased Premises and the Landlord may, but shall not be obligated to, apply the proceeds thereof to all Rent to which the Landlord is then entitled under this Lease. Any such sale may be effected by public auction, private sale or otherwise, and either in bulk or by individual item, or partly by one means and partly by another, all as the Landlord in its sole discretion may decide;
(d) terminate this Agreement;Lease by leaving upon the Leased Premises notice in writing of the termination, and such termination shall be without prejudice to the Landlord’s right to damages; it being agreed that the Tenant shall pay to the Landlord on demand as damages the loss of income of the Landlord to be derived from this Lease and the Leased Premises for the unexpired portion of the Term had it not been terminated; or
(ive) disallow all re-enter into and upon the Leased Premises or any part thereof in the name of the cost whole and repossess and enjoy the same as of the activity or action not in compliance;
(v) require that the DeveloperLandlord’s former estate, the Manager, the Contractor or any other party providing services anything herein contained to the Borrower be replaced;
(vi) remove contrary notwithstanding; and the [General Partner] [Member] Tenant shall pay to the Landlord forthwith upon demand all expenses of the Borrower and require Landlord in re-entering, terminating, re-letting, collecting sums due or payable by the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in Tenant or realizing upon assets seized or otherwise exercising its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under this Section 11.04 including tenant inducements, leasing commissions, legal fees on a solicitor and client or substantial indemnity basis and all disbursements and the Loan Documents; and
(xi) exercise any other rights expense of keeping the Leased Premises in good order, repairing the same and remedies that may be available under law or in equity.
B. preparing the same for re-letting. In addition to addition, and without limiting the remedies described in generality of the foregoing provisions of this Section 10.2A above, the Borrower shall11.04, upon demand by Florida Housing following the happening of an Event of Default, (i) repay and as a consequence thereof this Lease is terminated in accordance with such provisions, the Landlord shall have no further liability to Florida Housing, which shall remit such funds pay to the Treasury, Tenant or any third party any amount on account or in respect of Exchange Program Funds previously disbursed a refund of any Security Deposit, prepaid Rent or prepaid Taxes or any tenant inducement, leasehold improvement allowance, lease takeover or lease subsidy or any other concession or inducement otherwise provided to the Borrower Tenant under the terms of or with respect to this Agreement Lease, and (ii) pay to Florida Housing an amount equal any Rent free period otherwise provided to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each Tenant hereunder shall be cumulative null and may void and of no further force or effect and Rent shall be exercised concurrently, independently, or successively, payable in full hereunder without regard to any ordersuch Rent free period.
Appears in 1 contract
Remedies on Default. A. Florida Housing shall have the right to exercise any of the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon Upon the occurrence of an Event of Default Default, Lender may, without demand or notice, pay any or all taxes, assessments, premiums, and liens required to be paid by Mortgagor, effect any insurance provided for herein, make such period as it determines appropriaterepairs, if it determines that [cause the Tax Credit Investor or] abstracts of title or title insurance policy and tax histories of the Property to be certified to date, or procure new abstracts of title or title insurance and tax histories in case none were furnished to it, and procure title reports covering the Property, including surveys. The amounts paid for any Lender is taking appropriate measures to correct the circumstances giving rise such purposes will be added to the Indebtedness and will bear interest at the rate of interest otherwise accruing on the Indebtedness until paid. In the event of foreclosure, the abstracts of title or title insurance shall become the property of the Lender. All abstracts of title, title insurance, tax histories, surveys, and other documents pertaining to the Indebtedness will remain in Lender's possession until the Indebtedness is paid in full. IN THE EVENT OF THE SALE OF THIS PROPERTY UNDER THE PROCEDURE FOR FORECLOSURE OF A SECURITY INSTRUMENT BY ADVERTISEMENT, AS PROVIDED BY APPLICABLE LAW, OR IN THE EVENT THE LENDER EXERCISES ITS RIGHTS UNDER THE ASSIGNMENT OF LEASES AND RENTS, THE MORTGAGOR HEREBY WAIVES ANY RIGHT TO ANY NOTICE OTHER THAN THAT PROVIDED FOR SPECIFICALLY BY STATUTE, OR TO ANY JUDICIAL HEARING PRIOR TO SUCH SALE OR OTHER EXERCISE OF RIGHTS. Upon the occurrence of an Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture MortgageLender may, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded without notice unless required by applicable law, and each at its option, declare the entire Indebtedness due and payable, as it may elect, regardless of the date or dates of maturity thereof and, if permitted by state law, is authorized and empowered to sell or to cause the Property to be sold at public auction, and to execute and deliver to the purchaser or purchasers at such sale any deeds of conveyance good and sufficient at law, pursuant to the statute in such case made and provided, and out of the proceeds of the sale to retain the sums then due hereunder and all costs and charges of the sale, including attorneys' fees, rendering any surplus to the party or parties entitled to it. Any such sale or a sale made pursuant to a judgment or a decree for the foreclosure hereof may, at the option of Lender, be made en masse. The commencement of proceedings to foreclose this Mortgage in any manner authorized by law shall be cumulative deemed as exercise of the above option. Upon the occurrence of an Event of Default, Lender shall immediately be entitled to make application for and may be exercised concurrentlyobtain the appointment of a receiver for the Property and of the earnings, independentlyincome, or successivelyissue and profits of it, in with the powers as the court making the appointments confers. Mortgagor hereby irrevocably consents to such appointment and waives notice of any orderapplication therefor.
Appears in 1 contract
Sources: Commercial Real Estate Mortgage (Robcor Properties Inc)
Remedies on Default. A. Florida Housing shall have Upon the right happening of an Event of Default the Landlord may, at its option, and in addition to and without prejudice to all rights and remedies of the Landlord available to it either by any other provision of this Lease or by statute or the general law, exercise any one or more of the following remedies upon an Event of Defaultremedies:
(ia) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction be entitled to the full amount of the deficiency or default by current month's and the Borrowernext ensuing 3 months' installments of Rent which shall immediately become due and payable and the Landlord may immediately distrain for the same, together with any arrears then unpaid;
(iib) ceasewithout notice or any form of legal process, forthwith re-let or sublet the Leased Premises or any part or parts thereof for whatever term or terms and at whatever rent and upon whatever other terms, covenants and conditions the Landlord considers advisable including, without limitation, the payment or granting of inducements all on behalf of the Tenant; and on each such re-letting or subletting the rent received by the Landlord therefrom will be applied first to reimburse the Landlord for any such inducements and for any expenses, capital or otherwise, incurred by the Landlord in whole making the Leased Premises ready for re-letting or in partsubletting; and secondly to the payment of any costs and expenses of re-letting or subletting including brokerage fees and legal fees on a solicitor and client or substantial indemnity basis; and third to the payment of Rent; and the residue, making ii any, will be held by the Landlord and applied to payment of Rent as it becomes due and payable. If rent received from reletting or subletting during any further payments under month is less than Rent to be paid during that month hereunder, the Tenant will pay the deficiency which will be calculated and paid monthly on or before the first day of every month; and no re-letting or subletting of the Leased Premises by the Landlord or entry by the Landlord or its agents upon the Leased Premises for the purpose of re-letting or subletting or other act of the Landlord relating thereto including, without limitation, changing or permitting a subtenant to change locks, will be construed as an election on its part to terminate this AgreementLease unless a written notice of termination is given to the Tenant; and if the Landlord elects to re-let or sublet the Leased Premises without terminating, it may afterwards elect to terminate this Lease at any time by reason of any Event of Default then existing;
(iiic) seize and sell such goods, chattels and equipment of the Tenant as are in the Leased Premises and the Landlord may, but shall not be obligated to, apply the proceeds thereof to all Rent to which the Landlord is then entitled under this Lease. Any such sale may be effected by public auction, private sale or otherwise, and either in bulk or by individual item, or partly by one means and partly by another, all as the Landlord in its sole discretion may decide;
(d) terminate this Agreement;Lease by leaving upon the Leased Premises notice in writing of the termination, and such termination shall be without prejudice to the Landlord's right to damages; it being agreed that the Tenant shall pay to the Landlord on demand as damages the loss of income of the Landlord to be derived from this Lease and the Leased Premises for the unexpired portion of the Term had it not been terminated; or
(ive) disallow all re-enter into and upon the Leased Premises or any part thereof in the name of the cost whole and repossess and enjoy the same as of the activity or action not in compliance;
(v) require that the DeveloperLandlord's former estate, the Manager, the Contractor or any other party providing services anything herein contained to the Borrower be replaced;
(vi) remove contrary notwithstanding; and the [General Partner] [Member] Tenant shall pay to the Landlord forthwith upon demand all expenses of the Borrower and require Landlord in reentering, terminating, re-letting, collecting sums due or payable by the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in Tenant or realizing upon assets seized or otherwise exercising its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under this Section 11.04 including tenant inducements, leasing commissions, legal fees on a solicitor and client or substantial indemnity basis and all disbursements and the Loan Documents; and
(xi) exercise any other rights expense of keeping the Leased Premises in good order, repairing the same and remedies that may be available under law or preparing the same for re-letting. in equity.
B. In addition to addition, and without limiting the remedies described in generality of the foregoing provisions of this Section 10.2A above, the Borrower shall11.04, upon demand by Florida Housing following the happening of an Event of Default, and whether or not this Lease is terminated in accordance with such provisions: (i) repay the Landlord shall have no further liability to Florida Housing, which shall remit such funds pay to the Treasury, Tenant or any third party any amount on account or in respect of Exchange Program Funds previously disbursed a refund of any Security Deposit, prepaid Rent or prepaid Taxes or any tenant inducement, leasehold improvement allowance, lease takeover or lease subsidy or any other concession or inducement otherwise provided to the Borrower Tenant under or with respect to this Lease, and any Rent free period otherwise provided to the terms Tenant hereunder shall be null and void and of this Agreement no further force or effect and Rent shall be payable in full hereunder without regard to any such Rent free period; and (ii) pay any cash allowance, inducement payment, and the value of any other benefit paid to Florida Housing an amount equal to or conferred on the costs and fees, including attorneys’ fees and costs, incurred Tenant by Florida Housing or on behalf of the Landlord in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period Leased Premises or this Lease shall be recoverable in full as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise additional Rent and shall be payable to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this AgreementLandlord on demand. MORGUARD February 2005 - Net Office, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.Multi-Tenant (General Application)
Appears in 1 contract
Remedies on Default. A. Florida Housing Whenever any Event of Default shall have happened and be continuing, the Trustee (acting on behalf of the Issuer, as assignee of the Issuer’s rights hereunder) may take any legal action, including but not limited to, one or more of the following remedial actions:
(a) By written notice to the Tenant upon acceleration of maturity of the Bonds as provided in the Indenture, the Trustee acting on behalf of the Issuer may declare the aggregate amount of all unpaid Basic Rent or Additional Rent then or thereafter required to be paid under this Lease by the Tenant to be immediately due and payable as liquidated damages from the Tenant, whereupon the same shall become immediately due and payable by the Tenant.
(b) The Trustee acting on behalf of the Issuer may give the Tenant written notice of intention to terminate this Lease on a date specified therein, which date shall not be earlier than 30 days after such notice is given and, if all Defaults have not then been cured on the date so specified, the Tenant’s rights to possession of the Leased Property shall cease, and this Lease shall thereupon terminate. The Trustee acting on behalf of the Issuer may thereafter re-enter and take possession of the Leased Property and pursue all its available remedies, including sale of the Leased Property and judgment against the Tenant for possession of the Leased Property and/or all Basic Rent and Additional Rent then owing, including costs and attorney fees.
(c) If, in accordance with any of the foregoing provisions of this Article, the Issuer shall have the right to exercise any elect to re-enter and take possession of the following Leased Property, the Issuer or the Trustee acting on behalf of the Issuer, may enter and expel the Tenant and those claiming through or under the Tenant and remove the property and effects of both or either by all lawful means without being guilty of any manner of trespass and without prejudice to any remedies upon an Event for arrears of Default:Basic Rent or Additional Rent or preceding breach of contract by the Tenant.
(id) temporarily, wholly Net proceeds of any reletting or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction sale of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower Leased Property shall be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (deposited in the event of a default under this Agreement Debt Service Fund for application to pay the Bonds and interest thereon. “Net proceeds” shall mean the receipts obtained from reletting or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, sale after deducting all expenses incurred by Florida Housing in connection with such reletting or sale, including without limitation, all repossession costs, brokerage commissions, legal fees and expenses, expenses of employees, alteration costs and expenses of preparation of the Event of Default and/or the exercise of remedies with respect theretoLeased Property for reletting or sale.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Lease (CHS Inc)
Remedies on Default. A. Florida Housing If a default by Lessee occurs, to the extent permitted by Law, Lessor may avail itself of any or all of the following remedies:
1. Immediately re-enter and remove all personal, equipment, fixtures, furniture and personal property from the leased premises, storing the removed property in a public warehouse or elsewhere at Lessee's expense without liability. The Lessee's right to possession is conditioned upon Lessee's performance of its obligations under the Lease. If Lessor takes possession following default by Lessee, the taking of possession by itself shall not be deemed an election by Lessor to terminate the Lease or to avail itself of any other remedy than available to Lessor on account of Lessee default.
2. Re-let the leased premises or any part of them, for the account of Lessee or any portion or all of the remainder of the terms to any Lessee at the rent and on the conditions that the Lessor deems advisable. Lessor shall credit the rent received on the balance due from Lessee, first to any expenses incurred because of the repossession and re-renting, including brokers' commissions, next to interest, and the balance to the principal amount of the rent. Lessor may repair or restore the leased premises if required for re-letting, the cost of same to be charged to Lessee. Repossession shall not terminate this Lease unless Lessor gives notice of termination to Lessee.
3. Collect each installment of rent or other sum due under this Lease as it becomes due or otherwise enforces any of its provisions that are not being complied with by Lessee.
4. Await the end of the term of this Lease and then collect all rent or other sums due under its.
5. Terminate this Lease by notice to Lessee in which event Lessee shall immediately surrender possession of the leased premises and pay Lessor all loss or damages incurred because of Lessee's default including all rent and other charges due to the time of termination, all of which shall become due forthwith.
B. Upon default by Lessee, Lessor shall have the right to exercise any terminate Tenant Lease and receive all sums due under the Lease as of the following remedies upon an Event termination date plus liquidated damages for loss of Default:
(i) temporarilyrent equal to the annual rent then applicable under subparagraph 3 of this Lease, wholly or partially, suspend making payments all of Exchange Program Funds which sums shall be immediately due and payable. If termination under this Agreement pending correction paragraph occurs during the last year of the deficiency Lease or default by any extension, the Borrower;
(ii) cease, in whole or in part, making any further payments liquidated damages amount will be the net rent and taxes under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part paragraph 3 for the balance of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services lease term. Landlord and Tenant have agreed to the Borrower be replaced;
(vi) remove the [General Partner] [Member] stated amount of the Borrower and require the Borrower to provide for an alternate entityliquidated damages, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (because they recognize that in the event of a default under this Agreement the Landlord's loss of rent damages will be difficult or impossible to ascertain because the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may damages would be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.dependent upon
Appears in 1 contract
Remedies on Default. A. Florida Housing Whenever any Event of Default exists, Lessor shall have the right to exercise take one or any combination of the following remedies upon an Event of Defaultremedial steps:
(ia) temporarilyWith or without terminating this Agreement, wholly Lessor may declare all Rental Payments and other amounts payable by Lessee hereunder to the end of the then current Budget Year to be immediately due and payable.
(b) With or partiallywithout terminating this Agreement, suspend making Lessor may require Lease to promptly redeliver any or all of the Equipment to Lessor. For such portions of the Equipment freight prepaid on board a carrier as Lessor shall specify to the location specified by Lessor. For equipment which cannot be easily packaged and shipped, Lessee shall deliver the Equipment at Lessee’s cost to such place within the State as Lessor shall specify. If Lessee fails to redeliver the Equipment, Lessor may enter the premises where the Equipment is located and retake possession of the Equipment and charge Lessee for cost incurred. Notwithstanding that Lessor has taken possession of the Equipment, Lessee shall still be obligated to pay the remaining Rental Payments due up until the end of the then current Original Term or Renewal Term. Lessee will be liable for any damage to the Equipment caused by Lessee or its employees or agents.
(c) Lessor will have the right to resell or release the Equipment. If Lessor releases the Equipment for an amount less than the amount they received from Lessee, then Lessor can continue to hold the Lessee liable for the difference in payments up until the end of Exchange Program Funds under this Agreement pending correction the then current Original Term or Renewal Term. If Lessor sells the Equipment for an amount less than the then applicable Purchase Option Price, then Lessor can hold Lessee liable for as much of the deficiency as can be paid from the aggregate of the remaining payments in the then current Original Term or default by the Borrower;Renewal Term.
(iid) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or Lessor may take whatever action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under at law or in equityequity that may appear necessary or desirable to enforce its rights as the owner of the Equipment.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Remedies on Default. A. Florida Housing Upon the happening of any Event of Default, Lender shall have the right right, in addition to any other rights or remedies available to Lender under the Deed of Trust or any of the other Loan Documents or under applicable Law, to exercise any one or more of the following remedies upon rights and remedies:
(a) Lender may terminate its obligation to advance any further principal of the Loan pursuant to this Agreement by Notice to Borrower.
(b) Lender may accelerate all of Borrower’s Obligations under the Loan Documents whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or intention to accelerate, presentment or demand for payment, protest or notice of nonpayment or dishonor, or notices or demands of any kind or character (all of which are hereby waived by Borrower).
(c) Lender may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property.
(d) Lender may set off the amounts due Lender under the Loan Documents against any and all accounts, credits, money, securities or other property of Borrower now or hereafter on deposit with, held by or in the possession of Lender to the credit or for the account of Borrower, without notice to or the consent of Borrower.
(e) Lender may enter into possession of the Property and perform any and all work and labor necessary to complete the development of the Land and the construction of the Improvements (whether or not in accordance with the Plans and Specifications) and to employ watchmen to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Revolving Loan Note and shall be secured by the Deed of Trust. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an Event interest, to complete the work in the name of DefaultBorrower, and hereby empowers said attorney or attorneys, in the name of Borrower or Lender:
(i) temporarily, wholly or partially, suspend making payments To use any funds of Exchange Program Funds under this Agreement pending correction Borrower including any balance which may be held by Lender and any funds which may remain unadvanced hereunder for the purpose of completing the development of the deficiency Land and the construction of the Improvements, whether or default by not in the Borrowermanner called for in the Plans and Specifications;
(ii) cease, To make such additions and changes and corrections to the Plans and Specifications as shall be necessary or desirable in whole or in part, making any further payments under this Agreementthe judgment of Lender to complete the development of the Land and the construction of the Improvements;
(iii) terminate this AgreementTo employ such contractors, subcontractors, agents, architects and inspectors as shall be necessary or desirable for said purpose;
(iv) disallow To pay, settle or compromise all existing bills and claims which are or part may be liens against the Property, or may be necessary or desirable for the completion of the cost work or the clearance of title to the activity or action not in complianceProperty;
(v) require that To execute all applications and certificates which may be required in the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replacedname of Borrower;
(vi) remove the [General Partner] [Member] of the Borrower To enter into, enforce, modify or cancel Leases and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrowerfix or modify Rents on such terms as Lender may consider proper;
(vii) draw upon To file for record, at Borrower’s cost and apply expense and in Borrower’s name, any escrows and/or reserve accounts notices of completion, notices of cessation of labor, or any other notices that Lender in accordance with their terms;its sole and absolute discretion may consider necessary or desirable to protect its security; and
(viii) call upon To do any and every act with respect to the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms development of the Land and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure construction of the liens thereunder;
(x) exercise any other rights Improvements which Borrower may do in its own behalf. It is understood and remedies agreed that may this power of attorney shall be available under deemed to be a power coupled with an interest which cannot be revoked. Said attorney-in-fact shall also have the Loan Documents; and
(xi) exercise any other rights power to prosecute and remedies that may be available under law defend all actions or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing proceedings in connection with the Event development of Default and/or the exercise Land and the construction of remedies with respect theretothe Improvements and to take such actions and to require such performance as Lender may deem necessary.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Loan Agreement (Cost Plus Inc/Ca/)
Remedies on Default. A. Florida Housing Whenever any Event of Default exists, Lessor shall have the right right, upon thirty (30) days’ notice to exercise Lessee, to take one or any combination of the following remedies upon an Event of Defaultremedial steps:
a. With or without terminating the Lease Term under such Lease, Lessor may enter the premises, upon thirty (30) days’ notice to Lessee, where the Equipment listed in such Lease is located and retake possession of such Equipment or require Lessee at Lessee’s expense to promptly return any or all of such Equipment to the possession of Lessor at such place within the United States as Lessor shall specify, and sell or lease such Equipment or, for the account of Lessee, sublease such Equipment, continuing to hold Lessee liable, but solely from legally available funds, for the difference between (i) temporarily, wholly the Rental Payments payable by Lessee pursuant to such Lease and other amounts related to such Lease or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction the Equipment listed therein that are payable by Lessee to the end of the deficiency then current Original Term or default by Renewal Term, as the Borrower;
(ii) ceasecase may be, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal the net proceeds of any such sale, leasing or subleasing (after deducting all expenses of Lessor in exercising its remedies under such Lease, including without limitation all expenses of taking possession, storing, reconditioning and selling or leasing such Equipment and all brokerage, and auctioneer’s fees, subject, however, to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the provisions of Section 3.04. The exercise of any such remedies respecting any such Event of Default and/or shall not relieve Lessee of any other liabilities under any other Lease or the exercise of remedies with respect theretoEquipment listed therein; and.
C. Florida Housing ▇. ▇▇▇▇▇▇ or Lessee may defer the enforcement of remedies upon the occurrence of an Event of Default for take whatever action at law or in equity may appear necessary or desirable to enforce its rights under such period Lease or as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, a secured party in any orderor all of the Equipment subject to such Lease.
Appears in 1 contract
Remedies on Default. A. Florida Housing Whenever any Event of Default referred to in Section 10.01 hereof shall have happened and continue to exist, then the right to exercise City may take any one or more of the following remedies upon an Event of Defaultremedial steps as against the Lessee:
(ia) temporarilyThe City may, wholly or partiallyand upon a payment default shall, suspend making payments re-enter and take possession of Exchange Program Funds under the Special Facilities and the Ground Lease Properties without terminating this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services and use its best efforts to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit complete construction and equipping of the Special Facilities (and apply proceeds of the Bonds for such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement purpose) and (ii) pay either (x) operate the Special Facilities and impose rates and charges on airline tenants in Terminals B and/or C and/or the IAB, as appropriate, for their availability, operation and maintenance in accordance with the Use and Lease Agreement or IAB License Agreement, as applicable or (y) sublease the Special Facilities and Ground Lease Properties on a net rent lease basis, provided further that in either event the City shall use its best efforts to Florida Housing an impose and collect rates and charges or rental rates sufficient to provide for operating and maintenance expenses and Ground Rentals to the same extent as Lessee is obligated to do so (it being understood that for the IAB "Ground Rentals" shall be the rental amount then charged for the IAB Leased Premises without consideration of any Special Facilities located therein) and to provide additional amounts equal to the costs Net Rent set forth in Section 6.01, all for the account of the Lessee, holding the Lessee liable for the difference between the rents and feesother amounts payable by the Lessee hereunder and the charges received from airline tenants and/or the rents and other amounts received from any sublessee with respect to the Special Facilities. All gross proceeds derived by the City from any charges and/or rents (net of operating and maintenance expenses and any Ground Rent payable or remaining unpaid hereunder, including attorneys’ fees and costsup to the amount of all Net Rent payable hereunder) shall be remitted to the Trustee for deposit in the Interest and Redemption Fund to support repayment of the Bonds.
(b) The City may terminate this Agreement, incurred exclude the Lessee from possession of the Special Facilities and the Ground Lease Properties and use its best efforts to (i) complete construction and equipping of the Special Facilities (and apply proceeds of the Bonds for such purpose) and (ii) either (x) operate the Special Facilities and impose rates and charges on airline tenants in Terminals B and/or C and/or the IAB for their availability, operation and maintenance in accordance with the Use and Lease Agreement and IAB License Agreement; or (y) lease the same on a net rent lease basis, provided further that in either event the City shall use its best efforts to impose and collect rates and charges or rental rates sufficient to provide for operating and maintenance expenses and Ground Rentals to the same extent as Lessee is obligated to do so and to pay the Net Rent set forth in Section 6.01, all for the account of the Lessee, holding the Lessee liable for all rents and other amounts due under this Agreement and not received by Florida Housing the City from charges or rents with respect to the Special Facilities. All gross proceeds derived by the City from any charges and/or rents (net of operating and maintenance expenses and any allocable Ground Rentals payable or remaining unpaid hereunder, and up to the amount of all Net Rent payable hereunder) shall be remitted to the Trustee for deposit in the Interest and Redemption Fund to support repayment of the Bonds.
(c) The City may take whatever other action at law or in equity as may appear necessary or desirable to collect the rent then due and thereafter to become due, or to enforce performance and observance of any obligation, agreement or covenant of the Lessee under this Agreement. The City shall use its best efforts to cause the Special Facilities to be either operated or leased on a net rent lease basis for the account of Lessee as provided in clauses (a) and (b) above after an Event of Default by Lessee, whether or not City retakes possession of the Special Facilities or terminates this Agreement.
(d) In connection with any reletting of the Special Facilities and Ground Lease Properties associated with Terminal B or C or the IAB, the City agrees to use its best efforts to relet such Special Facilities to the same tenant(s) who use and occupy Terminal B or C or the IAB. It is recognized that such tenant(s) will also be required to pay the City Ground Rentals and certain other rentals in connection with the Event use and occupancy of Default and/or such Terminals. In connection with a reletting of such Terminals, the exercise City agrees not to charge such tenant(s) ground rentals in excess of remedies with respect theretothose charged (or that would be charged) to Lessee for the areas in such Terminals.
C. Florida Housing may defer (e) In connection with any reletting by the enforcement City during the original term of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each Lessee shall be cumulative and may be exercised concurrently, independently, or successively, in any ordersubrogated to the right of the Trustee to receive payments hereunder to support repayment of the Bonds to the extent that Lessee has made payments on the Bonds under the Guaranty.
Appears in 1 contract
Sources: Special Facilities Lease Agreement (Continental Airlines Inc /De/)
Remedies on Default. A. Florida Housing Whenever any Event of Lease Default shall have happened and be continuing beyond any applicable cure period, the right to exercise any Trustee may, or shall at the request of the following remedies owners of a majority in aggregate principal amount of the Certificates then Outstanding and upon an Event indemnification as to costs and expenses as provided in the Indenture,
(a) terminate the Lease Term and give notice to the District to vacate and surrender possession of Defaultthe Leased Property, which vacation and surrender the District agrees to complete within sixty (60) days from the date of such notice; provided, in the event the District does not vacate and surrender possession on the termination date, the provisions of Section 6.5 hereof shall apply;
(b) lease or sublease the Leased Property or sell or assign any interest the Trustee has in the Leased Property, including the Trustee’s leasehold interest in the Leased Property;
(c) recover from the District:
(i) temporarilythe portion of Base Rentals and Additional Rentals, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default for which a specific Appropriation has been effected by the Borrower;District for such purpose, which would otherwise have been payable hereunder, during any period in which the District continues to occupy, use or possess the Leased Property; and
(ii) ceaseBase Rentals and Additional Rentals, for which a specific Appropriation has been effected by the District for such purpose, which would otherwise have been payable by the District hereunder during the remainder, after the District vacates and surrenders possession of the Leased Property, of the Fiscal Year in whole or in part, making any further payments under this Agreement;which such Event of Lease Default occurs.
(iiid) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or take whatever action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under at law or in equity.
B. In addition equity may appear necessary or desirable to enforce its rights in and to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower Leased Property under the terms of Site Lease, this Agreement Lease and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon Indenture. Upon the occurrence of an Event of Default for Nonappropriation, the Trustee shall be entitled to recover from the District the amounts set forth in Section 14.2(c)(i) hereof if the District continues to occupy the Leased Property after June 30 of the Fiscal Year in which such period Event of Nonappropriation occurs. The Trustee shall also be entitled, upon any Event of Lease Default, to any moneys in any funds or accounts created under the Indenture (except the Rebate Fund or any defeasance escrow accounts). Notwithstanding the foregoing provisions or any other provisions in this Lease or the Indenture, so long as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is the sole Owner of the Certificates, the Trustee shall not take any remedial action under this Lease or the Indenture, including without limitation this Section 14.2, without the prior written consent and direction of the Lender. Before taking appropriate measures to correct any such action as directed by the circumstances giving rise Original Purchaser, the Trustee shall be entitled to the Event of Default.
D. Each right and remedy indemnification provided in this Agreement is distinct from all other rights or remedies under this Agreement, Section 8.02(m) of the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any orderIndenture.
Appears in 1 contract
Sources: Lease Purchase Agreement
Remedies on Default. A. Florida Housing Whenever any Event of Default shall have occurred and be continuing, Lender, as assignee of Issuer, shall have the right right, at its sole option without any further demand or notice, to exercise take any one or any combination of the following remedies upon an Event remedial steps insofar as the same are available to secured parties under Article 9 of Defaultthe UCC in effect in the State from time to time and which are otherwise accorded to Lender, as assignee of Issuer, by applicable law:
(ia) temporarilyby notice to Issuer and Borrower, wholly or partiallydeclare the entire unpaid principal amount of the Loan then outstanding, suspend making payments of Exchange Program Funds all interest accrued and unpaid thereon and all amounts payable under this Loan Agreement pending correction to be forthwith due and payable, whereupon the Loan, all such accrued interest and all such amounts shall become and be forthwith due and payable, without presentment, notice of the deficiency dishonor, protest or default further notice of any kind, all of which are hereby expressly waived by the Borrower;
(iib) ceasetake possession of the Equipment wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the Equipment for use over a term in whole a commercially reasonable manner, all for the account of Lender, provided that Borrower shall remain directly liable for the deficiency, if any, between the rent or in partother amounts paid by a lessee or sublessee of the Equipment pursuant to such lease or sublease during the same period of time, making any further payments under this Agreementafter deducting all costs and expenses, including reasonable attorneys' fees and expenses, incurred with respect to the recovery, repair and storage of the Equipment during such period of time;
(iiic) terminate this Agreementtake possession of the Equipment wherever situated, without any court order or other process of law and without liability for entering the premises, and sell the Equipment in a commercially reasonable manner;
(ivd) disallow all proceed by appropriate court action to enforce specific performance by Issuer or part Borrower of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms applicable covenants of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Loan Agreement or to recover for the Loan Documents) and the Assignment Instrumentsbreach thereof, including but not limited the payment of all amounts due from Borrower. Borrower shall pay or repay to foreclosure Lender or Issuer all costs of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documentssuch action or court action, including, without limitation, reasonable attorneys' fees; and
(xie) exercise any other rights and remedies that may be available under take whatever action at law or in equity.
B. In addition equity may appear necessary or desirable to enforce its rights with respect to the remedies described in Section 10.2A above, the Equipment. Borrower shall, upon demand by Florida Housing following an Event of Default, (i) shall pay or repay to Florida HousingLender or Issuer all costs of such action or court action, which shall remit such funds to the Treasuryincluding, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and without limitation, reasonable attorneys' fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or . All proceeds from the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative applied in the following manner: First, to pay all proper and may be exercised concurrentlyreasonable costs and expenses associated with the recovery, independentlyrepair, or successivelystorage and sale of the Equipment, in any order.including reasonable attorneys' fees and expenses;
Appears in 1 contract
Sources: Loan Agreement (American Materials & Technologies Corp)
Remedies on Default. A. Florida Housing shall In the event of any such default or breach by Tenant, Landlord may at any time thereafter, in its sole discretion, with or without notice or demand and without limiting Landlord in the exercise of a right or remedy which Landlord may have the right to exercise any by reason of the following remedies upon an Event of Defaultsuch default or breach:
(ia) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) ceaseTerminate Tenant's right to possession, in whole which case this Lease shall continue in effect whether or in partnot Tenant shall have abandoned the Premises. In such event Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant's default including, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure the cost of recovering possession of the liens thereunderPremises; expenses of re-letting, including necessary renovation and alteration of the Premises; reasonable attorney's fees; the worth at the time of award by the court having jurisdiction thereof of the amount by which the unpaid Rent, Additional Rent and other charges called for herein for the balance of the term after the time of such award exceeds the amount of such loss for the same period that Tenant proves could be reasonably avoided; and that portion of any leasing commission paid by Landlord and applicable to the unexpired term of this Lease. Unpaid installments of Rent or other sums shall bear interest from the date due at the maximum legal rate;
(xb) exercise any other Maintain Tenant's right to possession, in which case this Lease shall continue in effect whether or not Tenant shall have abandoned the Premises. In such event Landlord shall be entitled to enforce all of Landlord's rights and remedies that under this Lease including the right to recover the Base Rent, Additional Rent and other charges as may become due hereunder;
(c) Accelerate the Rent for the entire balance of the Term or any part thereof, and any costs and sheriff’s, marshal’s, constable’s or other official’s commissions, whether chargeable to Landlord or Tenant, as if by the terms of this Lease said balance of the Rent and such other charges and expenses were payable in advance on the date of such acceleration. For purposes of accelerating the Rent for the balance of the Term, Landlord shall be entitled to calculate the Rent for the then remaining Term by assuming a five percent (5%) increase in CAM Expenses, Taxes and Landlord’s Insurance Expenses for each Accounting Period or portion thereof remaining in the Term. Nothing herein shall relieve Tenant of liability for actual Rent in excess of such calculations for any period by Landlord pursuant to this Section. If such calculations exceed the amount of actual Rent for such period, Landlord shall either refund such excess to Tenant or apply such excess to other sums which may become due to Landlord under this Lease;
(d) Pursue any other remedy now or hereafter available to Landlord under the Loan Documents; andlaws or judicial decisions of the State of Florida.
(xie) exercise Upon any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which Tenant shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the Landlord all costs incurred by Landlord (including court costs and fees, including attorneys’ reasonable attorney’s fees and expenses at all tribunal levels) in (1) obtaining possession of the Premises, (2) removing, storing and/or disposing of Tenant’s or any other occupant’s property, (3) repairing and restoring the Premises, (4) if Tenant is dispossessed of the Premises and this Lease is not terminated, reletting all or any part of the Premises (including brokerage commissions, cost of tenant finish work, and other costs incidental to such reletting, including, without limitation, commercially reasonable costs, incurred by Florida Housing in connection consistent with the Event class of Default and/or the exercise Building and consistent with comparable buildings in the location generally near the Building of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriatealtering, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documentsremodeling, or otherwise afforded putting the Premises into condition acceptable to a new tenant based on the condition of the Premises as surrendered by applicable lawTenant to Landlord, and each shall be cumulative taking into account then existing leasehold improvements (and may be exercised concurrently, independently, or successively, the condition thereof) in any order.the Premises);
Appears in 1 contract
Sources: Retail Lease Agreement
Remedies on Default. A. Florida Housing shall have the right to exercise any of the following remedies upon an Event of Default(a) If a default by Tenant occurs, Landlord may:
(i1) temporarily, wholly Immediately re-enter and remove all persons and property from the Premises and place said property in a public warehouse or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrowerelsewhere at Tenant's expense without liability;
(ii2) ceaseRelet the Premises or any part of it, in whole for the account of Tenant for the remainder of the terms to any tenant at rent and conditions that Landlord deems advisable. Landlord shall credit the rent received on the balance due from Tenant first to any expenses incurred because of the repossession, next to interest and the balance to principal. Landlord may repair or in part, making any further payments under restore the premises if required for reletting. Repossession shall not terminate this AgreementLease unless Landlord given written notice of termination to Tenant;
(iii3) terminate Collect each installment of rent or other sum due under this AgreementLease as it becomes due or otherwise enforce any of its provisions that are not being complied with by Tenant;
(iv4) disallow all or part Await the end of the cost term of the activity this Lease and then collect all rent or action not in complianceother sums due under it;
(v5) require Terminate this Lease by written notice to Tenant in which event Tenant shall immediately surrender possession of the Premises and pay Landlord all loss or damages incurred because of Tenant's default including all rent due or to become due, all of which shall become due forthwith.
(b) Notice or demand is not a prerequisite to any remedy unless another part of this Lease provides for notice or demand in which event that provision shall prevail.
(c) In addition to any other loss or damages that Landlord sustains because of Tenant's default, Tenant shall pay all reasonable expenses of repair, alteration, renovation or addition to the DeveloperPremises required as a result of his tenancy or required to relet the Premises, transfer and storage charges for Tenant's personal property removed from the Premises, and brokers' commissions incurred by Landlord in reletting the Premises.
(d) Tenant grants Landlord a lien on Tenant's property located within the Premises to secure all sums due or to become due under this Lease in addition to any statutory lien or right Landlord _______ Page 13 Tenant _________ to distrain. Tenant shall not remove his property from the Premises until all money due Landlord is paid. If Tenant's property is removed, the Managerlien continues for a period of six (6) months during which Landlord may seize Tenant's property wherever found and sell it or so much of it as will satisfy all money due Landlord without process. This lien may be enforced by distress regardless of the nature of the money due.
(e) All remedies of Landlord are cumulative to each other and to any other remedies given by law. All rights of Landlord on Tenant's default apply to a renewal or extension of this Lease. By making a payment for Tenant or from any security deposit, the Contractor Landlord does not waive Tenant's default or any other party providing services to the Borrower be replaced;right Landlord has because of this default.
(vif) remove the [General Partner] [Member] Notwithstanding any termination and/or expiration of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default Tenant's interest under this Agreement or the Loan Documents) and the Assignment InstrumentsLease, Tenant's liability, including but not limited to foreclosure the payment of all rents and other payments required of Tenant, whether accruing prior to or after the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event date of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms termination and/or expiration of this Agreement Lease, shall survive and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable lawcontinue, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any ordernot affect Landlord's right to collect said sums.
Appears in 1 contract
Remedies on Default. A. Florida Housing shall have the right to exercise any of the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon Upon the occurrence of an Event of Default for such period Default, Tri-State may do any one or more of the following:
(a) Accelerate and declare immediately due and payable, all indebtedness of Customer to Tri-State, whether mature, contingent or otherwise, including without limitation (i) outstanding purchased Accounts, (ii) any unpaid Minimum Fees and (iii) all other fees, costs and expenses as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Defaultrequired hereunder.
D. Each right (b) Require the Customer to repurchase any and remedy all Accounts, whether disputed or undisputed, and pay the Repurchase Price for those Accounts as provided herein, and, in this Agreement the event the Repurchase Price is distinct from all not promptly paid, ▇▇▇▇▇ Fargo may continue to collect such Accounts and charge a reasonable fee in connection with such collection activities in addition to any other rights fees or remedies charges provided for herein.
(c) Cease purchasing any Account under this Agreement.
(d) Notify any Account Debtor and take possession of Collateral and collect any Account without judicial process.
(e) Settle any disputed Account directly with the Account Debtor without relieving Customer of its obligations with respect to such Account under this Agreement.
(f) Require Customer to assemble the Collateral and the records pertaining to Accounts and make them available to Tri-State at a place designated by Tri-State.
(g) Enter the premises of Customer and take possession of the Collateral and of the records pertaining to the Accounts and any other Collateral.
(h) Grant extensions, compromise claims and settle any Account for less than face value, all without prior notice to Customer.
(i) Use, in connection with any assembly or disposition of the Collateral, any trademark, trade name, trade style, copyright, patent right or technical process used or utilized by Customer.
(j) Initiate electronic credit or debit entries through the ACH system to and from Customer’s deposit account maintained by Customer wherever located.
(k) Hold Customer liable for any deficiency for any amounts due and owing to Tri-State.
(l) Cease making reports or accountings to the Customer as otherwise required by this Agreement.
(m) For any reason apply for the ex parte appointment of a receiver of the Accounts, the Recapture Mortgage, related rights set forth in Section 3.01 above and the Assignment Instruments, Collateral (to which appointment Customer hereby consents) without the Extended Use Agreement necessity of posting a bond or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any orderother form of security (which Customer hereby waives).
Appears in 1 contract
Sources: Account Purchase Agreement (Corporate Resource Services, Inc.)
Remedies on Default. A. Florida Housing In the event of any such default by Tenant, ------------------- then Landlord may elect either (a) to cancel and terminate this Lease, (b) to terminate Tenant's right to possession only without terminating the Lease, or (c) pursue any other remedy available at law or equity. In the event of election under 17.2(b) above to terminate Tenant's right to possession only, Landlord may, at Landlord's option, enter into the Premises, change the locks and take and hold possession of the Premises in accordance with applicable law, without such entry into possession terminating this Lease or releasing Tenant in whole or in part from Tenant's obligation to pay the Rent hereunder for the full stated term. Upon such re-entry, Landlord may remove all persons and property from the Premises, and such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Tenant. No re-entry or taking possession of the Premises by Landlord pursuant to this Section shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof is decreed by a court of competent jurisdiction. Upon and after entry into possession without termination of the Lease, Landlord shall use good faith best efforts to relet the Premises, or any part thereof, for the account of Tenant, to any person, firm or corporation, other than Tenant, for such rent, for such time and upon such terms as Landlord, using reasonable discretion, shall determine, subject to Landlord's legal duty to mitigate its damages and re-let the Premises, but Landlord shall not be required to accept any tenant offered by Tenant or to observe any instruction given by Tenant about such reletting. In any such case, Landlord may make repairs and redecorate the Premises to the extent reasonably necessary to secure a replacement tenant, and Tenant shall, upon demand, pay the costs thereof, together with all of Landlord's reasonable expenses of reletting. If the consideration collected by Landlord upon any such reletting for Tenant's account, and after deducting all expenses incident thereto, including reasonable brokerage fees and legal expenses, is not sufficient to pay monthly the full amount of the Rent provided in this Lease, Tenant shall pay to Landlord the amount of each monthly deficiency upon demand. In the event that Landlord shall have terminated Tenant's right to possession only, Landlord shall have the right to exercise further pursue any of the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole remedy at law or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies equity that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equityto Landlord.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Sublease Agreement (Mercata Inc)
Remedies on Default. A. Florida Housing Upon the happening of any Event of Default, Lender shall have the right right, in addition to any other rights or remedies available to Lender under the Mortgage or any of the other Loan Documents or under applicable Law, to exercise any one or more of the following remedies upon rights and remedies:
(a) Lender may accelerate all of Borrower’s Obligations under the Loan Documents whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or intention to accelerate, presentment or demand for payment, protest or notice of nonpayment or dishonor, or notices or demands of any kind or character (all of which are hereby waived by Borrower).
(b) Lender may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property.
(c) Lender may set off the amounts due Lender under the Loan Documents, whether or not matured and regardless of the adequacy of any other collateral securing the Loan, against any and all accounts, credits, money, securities or other property of Borrower now or hereafter on deposit with, held by or in the possession of Lender to the credit or for the account of Borrower, without notice to or the consent of Borrower. This provision shall exclude and not apply to accounts of any Approved Manager (other than Borrower) and Guarantor.
(d) Lender may enter into possession of the Property and perform any and all work and labor necessary to complete any construction at the Property, including any construction of tenant improvements, and to employ watchmen to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Note and shall be secured by the Mortgage. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an Event interest, to complete the work in the name of DefaultBorrower, and hereby empowers said attorney or attorneys, in the name of Borrower or Lender:
(i) temporarilyTo use any funds of Borrower including any balance which may be held by Lender and any funds (if any) which may remain unadvanced hereunder for the purpose of completing any construction, wholly including any construction of tenant improvements, whether or partially, suspend making payments not in the manner called for in the applicable plans and specifications; this provision shall exclude and not apply to accounts of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the any Approved Manager (other than Borrower) and Guarantor;
(ii) ceaseTo make such additions and changes and corrections to any plans and specifications as shall be necessary or desirable in the judgment of Lender to complete any construction, in whole or in part, making including any further payments under this Agreementconstruction of tenant improvements;
(iii) terminate this AgreementTo employ such contractors, subcontractors, agents, architects and inspectors as shall be necessary or desirable for said purpose;
(iv) disallow To pay, settle or compromise all existing bills and claims which are or part may be liens against the Property, or may be necessary or desirable for the completion of the cost work or the clearance of title to the activity or action not in complianceProperty;
(v) require that To execute all applications and certificates which may be required in the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replacedname of Borrower;
(vi) remove the [General Partner] [Member] of the Borrower To enter into, enforce, modify or cancel Leases and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrowerfix or modify Rents on such terms as Lender may consider proper;
(vii) draw upon To file for record, at Borrower’s cost and apply expense and in Borrower’s name, any escrows and/or reserve accounts notices of completion, notices of cessation of labor, or any other notices that Lender in accordance with their terms;its sole and absolute discretion may consider necessary or desirable to protect its security; and
(viii) call upon To do any and every act with respect to any such construction which Borrower may do in its own behalf. NPCHLT1:500113.7-TBF-(KMROCHEK) 900000-02386 It is understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked. Said attorney-in-fact shall also have the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms power to prosecute and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement defend all actions or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing proceedings in connection with any construction at the Event Property, including any construction of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable lawtenant improvements, and each shall be cumulative to take such actions and to require such performance as Lender may be exercised concurrently, independently, or successively, in any orderdeem necessary.
Appears in 1 contract
Sources: Term Loan Agreement
Remedies on Default. A. Florida Housing Upon occurrence of any event of default, Landlord may, at Landlord’s option, in addition to any other remedy or right given hereunder or by law:
(a) give written notice to Tenant that this Lease shall terminate upon the date specified in the notice, which date shall not be earlier than five days from the date of giving of such notice;
(b) following the termination of the Lease under Section 16.2(a) above, peaceably re-enter the Demised Premises, or an part thereof, upon voluntary surrender by Tenant or expel or remove Tenant therefrom and any other persons occupying them using such legal proceedings as are then available;
(c) should Landlord terminate this Lease and reenter, as provided above, or should it take possession pursuant to legal proceedings or pursuant to any notice provided for by law, and whether or not it terminates this Lease, it may relet the Premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rent or rents and upon such other terms and conditions as Landlord in its sole discretion may deem advisable. Upon each such reletting all rents received by the 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 attorneys’ fees and costs of any alterations and repairs; third, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. To the extent any new rents are to be paid hereunder are less than that which would be due under this lease, Tenant shall pay such deficiency to Landlord. If such rents received from such reletting be less than that to be paid during such month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. No such reentry and reletting of the Premises by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Tenant pursuant to Subsection (a) above, or unless the termination thereof be decreed by a court of competent jurisdiction.
(d) collect by suit or otherwise each installment of rent or other sum as it becomes due hereunder, or enforce, by suit or otherwise, any other term or provision hereof on the part of Tenant required to be kept or performed.
(e) Landlord may, at its option, permit all of Tenant’s fixtures, equipment, improvements, additions, alterations and other personal property to remain on the Premises in which event and continuing during the continuance of such default, Landlord shall have the right to exercise take the exclusive possession of same rent and charge free, until all defaults are cured or, at Landlord’s option, at any time during the term of the following remedies upon an Event Lease, to require Tenant to forthwith remove same. In the event of Default:
(i) temporarily, wholly any entry or partially, suspend making payments taking of Exchange Program Funds under this Agreement pending correction possession of the deficiency or default by Premises, Landlord shall have the Borrower;
(ii) ceaseright, in whole or in partbut not the obligation to remove therefrom, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or any part of the cost personal property located therein and may place the same in storage at a public warehouse at the expense and risk of the activity or action not in compliance;
(v) require that the Developerowners thereof. In addition, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event event of Default for such period as it determines appropriatedefault under, if it determines that [or, in the Tax Credit Investor or] any Lender is taking appropriate measures case of (h) below, upon termination of this Lease, Tenant shall pay to correct Landlord, without demand or notice, the circumstances giving rise sum of the following, which shall be immediately due and payable:
(f) all minimum rent, additional rent and other payments accrued to the Event date of Default.such termination and a proportionate part of such rent or other sums otherwise payable for the month in which such termination occurs;
D. Each right (g) the cost of making all repairs, alterations and remedy provided in improvements required to be made by Tenant hereunder, and of performing all covenants of Tenant relating to the condition of the Premises during the term and upon expiration or sooner termination of this Agreement is distinct from all other rights Lease, such cost to be deemed prima facie to be the cost estimated by a reputable architect or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement contractor selected by Landlord or the Loan Documents, amounts actually expended or otherwise afforded incurred thereafter by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any orderLandlord; and
(h) Intentionally deleted.
Appears in 1 contract
Remedies on Default. A. Florida Housing In the event of any such default or breach by Tenant, Landlord may at any time thereafter with or without notice or demand and without limiting Landlord in the exercise of a right or remedy which Landlord may have by reason of such default or breach:
(1) Terminate Tenant's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Tenant shall immediately surrender possession of the Premises to Landlord. In such event, Landlord shall be entitled to recover the costs set forth below;
(2) Maintain Tenant's right to possession, in which case this Lease shall continue in full force and effect whether or not Tenant shall have abandoned the Premises. In such event, Landlord shall be entitled to enforce all of Landlord's rights and remedies under this Lease including the right to exercise recover the rent and any of the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrowerother charges and additional rent as may become due hereunder;
(ii3) ceaseIn the event of any default, reentry or repossession by summary proceedings or otherwise, all rent and additional rent shall become due hereunder and shall be paid up to the time of such reentry or repossession, together with any such expenses as Landlord may reasonably incur for attorneys' fees, advertising expenses, brokerage fees and for putting the Premises in whole good order or repairing the same for reletting, together with interest thereon as provided herein accruing from the date of any such expenditure by Landlord. Landlord agrees to make best efforts to relet the premises at the same or higher minimum rent. Landlord's failure or inability to relet the Premises or any part thereof shall not reduce or restrict in partany way Landlord's right to recover from Tenant all rent and other charges as provided hereunder and, making despite such failure or inability to so relet the Premises or any further payments part thereof, Tenant shall pay to Landlord upon demand therefore any and all costs, including without limitation, expenses of reletting including necessary renovation and alteration of the Premises, reasonable attorneys' fees, the amount by which the unpaid rent and other charges, additional rent, and adjustments called for herein for the balance of the term exceed the amount of any such loss for the unexpired term of the Lease and the portion of any leasing commissions paid by Landlord applicable to the unexpired term of the Lease. Unpaid installments of rent or other sums due by Tenant to Landlord under this AgreementLease shall bear interest from the date due until paid in full at the rate of three percent (3%) per annum over the publicly announced prime rate being charged from time to time from the date due until paid in full by Seattle-First National Bank or such other bank as Landlord may designate;
(iii4) terminate this Agreement;Pursue any other remedy now or hereafter available to Landlord under the laws or judicial decisions of the state in which the Premises are located; and
(iv5) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in In the event of a default under this Agreement or retaking of possession of the Loan Documents) Premises by Landlord, Tenant shall remove all personal property located thereon and upon failure to do so upon demand of Landlord, Landlord may remove and store the Assignment Instrumentssame in any place selected by Landlord, including but not limited to foreclosure a public warehouse, at the expense and risk of Tenant. If Tenant shall fail to pay the cost of storing any such property after it has been stored for a period of 30 days or more, Landlord may sell any or all of such property at a public or private sale and shall apply the proceeds of such sale first to the cost of such sale, secondly to the payment of the liens thereunder;
(x) exercise charges for storage, if any, and thirdly to the payment of any other rights and remedies that sums of money which may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition due from Tenant to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower Landlord under the terms of this Agreement Lease, and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriatebalance, if it determines any, to Tenant. Tenant hereby waives all claims for damages that [may be caused by Landlord's lawfully reentering and taking possession of the Tax Credit Investor or] any Lender is taking appropriate measures to correct Premises or lawfully removing and storing the circumstances giving rise to the Event property of Default.
D. Each right Tenant as herein provided and remedy provided in this Agreement is distinct will save Landlord harmless from all other rights loss or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded damages occasioned by applicable law, Landlord thereby and each no such lawful reentry shall be cumulative and may considered or construed to be exercised concurrently, independently, or successively, in any ordera forceable entry.
Appears in 1 contract
Sources: Sublease (Coinstar Inc)
Remedies on Default. A. Florida Housing Whenever an Event of Default shall have the right to exercise happened and be subsisting, any one or more of the following remedies upon an Event remedial steps may be taken:
(a) If acceleration of Defaultthe principal amount of the Bonds has been declared pursuant to Section 10.02 of the Indenture, the Trustee shall declare all Loan Payments to be immediately due and payable, whereupon the same shall become immediately due and payable;
(b) Subject to any right of the Credit Facility Issuer to direct remedial proceedings provided by the Indenture, the Trustee may take any action at law or in equity to:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds collect all amounts then due and thereafter to become due under this Agreement pending correction of the deficiency or default by the Borrower;Financing Documents; or
(ii) ceaseenforce the performance or observance of any other obligation, in whole agreement, or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part covenant of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor Company or any other party providing services to obligor under the Borrower be replaced;Financing Documents; or
(vic) remove the [General Partner] [Member] The Trustee may exercise any or all or any combination of the Borrower and require remedies specified in the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;Mortgage; or
(viid) draw upon The Issuer or the Trustee may pursue all remedies now or thereafter existing at law or in equity to collect all amounts then due and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default thereafter to become due under this Agreement or the Loan Documents) Mortgage or to enforce the performance and the Assignment Instruments, including but not limited to foreclosure observance of any other obligation or agreement of the liens thereunder;
(x) exercise Company under those instruments. Notwithstanding the foregoing, the Issuer shall not be obligated to take any step which in its opinion will be or might cause it to expend time or money or otherwise incur liability unless and until a satisfactory indemnity bond has been furnished to the Issuer at no cost or expense to the Issuer. Any amounts collected as Loan Payments or applicable to Loan Payments and any other rights amounts which would be applicable to payment of Bond Service Charges collected pursuant to action taken under this Section shall be paid into the Bond Fund and remedies that may applied in accordance with the provisions of the Indenture or, if the Outstanding Bonds have been paid and discharged in accordance with the provisions of the Indenture, shall be available under paid for transfers of remaining amounts in the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition Bond Fund. The provisions of this Section are subject to the remedies described in Section 10.2A above, further limitation that the Borrower shall, upon demand rescission by Florida Housing following the Trustee of its declaration that all of the Bonds are immediately due and payable also shall constitute an Event annulment of Default, any corresponding declaration made pursuant to paragraph (ia) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement Section and (ii) pay to Florida Housing an amount equal to a waiver and rescission of the costs consequences of that declaration and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with of the Event of Default and/or the exercise of remedies with respect theretoto which that declaration has been made, provided that no such waiver or rescission shall extend to or affect any subsequent or other default or impair any right consequent thereon.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Loan Agreement (Lesco Inc/Oh)
Remedies on Default. A. Florida Housing Upon the occurrence of any Event of Default with respect to a Lease, Lessor shall have the right right, at its option and without any further demand or notice to exercise any one or more or all of the following remedies upon an Event of Defaultwith respect to the Lease:
(a) Lessor, with or without terminating the Lease, may declare all Rental Payments payable under the Lease to the end of the then-current fiscal year of Lessee to be immediately due and payable by Lessee, whereupon such Rental Payments shall be immediately due and payable.
(b) Lessor may require Lessee to promptly return all Equipment to Lessor in the manner set forth in Section 11.3 (and Lessee agrees that it shall so return the Equipment), or Lessor may, at its option, enter upon the premises where any Equipment is located and repossess such Equipment without demand, without any court order or other process of law and without liability for any damage occasioned by such repossession; and Lessor may thereafter dispose of the Equipment. If Lessor terminates the Lease and disposes of any or all of the Equipment, Lessor shall apply the proceeds of any such disposition to pay the following items in the following order: (i) temporarilyall costs and expenses (including, wholly or partiallybut not limited to, suspend making payments of Exchange Program Funds under this Agreement pending correction attorneys’ fees) incurred in securing possession of the deficiency or default by the Borrower;
Equipment; (ii) cease, all costs and expenses incurred in whole or in part, making any further payments under this Agreement;
completing the disposition of the Equipment; (iii) terminate this Agreement;
any sales or transfer taxes incurred in the disposition of the Equipment; (iv) disallow all or part any Rental Payments payable under the Lease to the end of the cost then-current fiscal year of the activity or action not in compliance;
Lessee; (v) require that the Developer, outstanding principal component of Rental Payments under the Manager, the Contractor or any other party providing services to the Borrower be replaced;
Lease; and (vi) remove any other amounts then due under the [General Partner] [Member] Lease. Any disposition proceeds remaining after the requirements of clauses (i), (ii), (iii), (iv), (v) and (vi) have been met shall be paid to Lessee. No deficiency shall be allowed against Lessee, except with respect to any unpaid Rental Payments to the end of the Borrower then-current fiscal year of Lessee and require unpaid costs and expenses incurred by Lessor in connection with the Borrower repossession and disposition of the Equipment.
(c) By written notice to provide for any escrow agent that is holding proceeds of the Lease under an alternate entityEscrow Agreement, acceptable in advance by Florida HousingLessor may instruct such escrow agent to release all such proceeds and any earnings thereon to Lessor, such sums to act in its stead, pending appointment be credited to payment of a replacement [general partner] [member] Lessee’s obligations under the organizational documents of the Borrower;Lease; or
(viid) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it Lessor may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under remedy available, at law or in equity.
B. In addition , with respect to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an such Event of Default, (i) repay to Florida Housing, which . Lessee shall remit such funds to pay the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including reasonable attorneys’ fees and costs, expenses incurred by Florida Housing ▇▇▇▇▇▇ in connection with the Event of Default and/or the exercise of remedies with respect theretoexercising any remedy hereunder.
C. Florida Housing may defer the enforcement of remedies upon the (e) The occurrence of an Event of Default for such period as it determines appropriatewith respect to any Lease Schedule shall, if it determines that [at the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the sole discretion of Lessor, constitute an Event of DefaultDefault with respect to any or all Lease Schedules to which it is then a party.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Lease Purchase Agreement
Remedies on Default. A. Florida Housing shall have Upon the right to exercise any happening of the following remedies upon an Event of DefaultDefault the Landlord may, at its option, and in addition to and without prejudice to all rights and remedies of the Landlord available to it either by any other provision of this Lease or by statute or the general law:
(ia) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction be entitled to the full amount of the deficiency or default by current month's and the Borrowernext ensuing three months instalments of Rent which shall immediately become due and payable and the Landlord may immediately distrain for the same, together with any arrears then unpaid;
(iib) ceasewithout notice or any form of legal process, forthwith re-let or sublet the Leased Premises or any part or parts thereof for whatever term or terms and at whatever rent and upon whatever other terms, covenants and conditions Landlord considers advisable including, without limitation, the payment or granting of inducements all on behalf of Tenant; and on each such re-letting or subletting the rent received by Landlord therefrom will be applied first to reimburse Landlord for any such inducements and for any expenses, capital or otherwise, incurred by Landlord in whole making the Leased Premises ready for re-letting or in partsubletting; and secondly to the payment of any costs and expenses of re-letting or subletting including brokerage fees and legal fees on a solicitor and his own client basis; and third to the payment of Rent; and the residue if any will be held by Landlord and applied to payment of Rent as it becomes due and payable. If rent received from re-letting or subletting during any month is less than Rent to be paid during that month hereunder, making Tenant will pay the deficiency which will be calculated and paid monthly on or before the first day of every month; and no re-letting or subletting of the Leased Premises by Landlord or entry by Landlord or its agents upon the Leased Premises for the purpose of re-letting or subletting or other act of Landlord relating thereto including, without limitation, changing or permitting a sub-tenant to change locks, will be construed as an election on its part to terminate this Lease unless a written notice of termination is given to Tenant; and if Landlord elects to re-let or sublet the Leased Premises without terminating, it may afterwards elect to terminate this Lease at any further payments under this Agreementtime by reason of any Event of Default then existing;
(iiic) seize and sell such goods, chattels and equipment of the Tenant as are in the Leased Premises and may apply the proceeds thereof to all Rent to which the Landlord is then entitled under this Lease. Any such sale may be affected by public auction or otherwise, and either in bulk or by individual item, or partly by one means and partly by another, all as the Landlord in its sole discretion may decide;
(d) terminate this AgreementLease by leaving upon the Leased Premises notice in writing of the termination, and termination shall be without prejudice to the Landlord's right to damages; it being agreed that the Tenant shall pay to the Landlord on demand as damages the loss of income of the Landlord to be derived from this Lease and the Leased Premises for the unexpired portion of the Term had it not been terminated;
(ive) disallow all re-enter into and upon the Leased Premises or any part thereof in the name of the cost whole and repossess and enjoy the same as of Landlord's former estate, anything herein contained to the contrary notwithstanding; and the Tenant shall pay to the Landlord forthwith upon demand all expenses of the activity Landlord in re-entering, terminating, re-letting, collecting sums due or action not in compliance;
(v) require that payable by the Developer, the Manager, the Contractor Tenant or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in realizing upon assets seized or otherwise exercising its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under this Section including tenant inducements, leasing commissions, legal fees (on a solicitor and his own client basis) and all disbursements and the Loan Documents; and
(xi) exercise any other rights expense of keeping the Leased Premises in good order, repairing the same and remedies that may be available under law or in equity.
B. preparing them for re-letting. In addition to addition, and without limiting the remedies described in generality of the foregoing provisions of this Section 10.2A above, the Borrower shall11.05, upon demand by Florida Housing following the happening of an Event of Default, (i) repay and whether or not this Lease is terminated in accordance with such provisions, the Landlord shall have no further liability to Florida Housing, which shall remit such funds pay to the Treasury, Tenant or any third party any amount on account or in respect of Exchange Program Funds previously disbursed a refund of any security deposits, prepaid rent or prepaid taxes or any tenant inducement, leasehold improvement allowance, lease takeover or lease subsidy or any other concession or inducement otherwise provided to the Borrower Tenant under the terms of or with respect to this Agreement Lease, and (ii) pay to Florida Housing an amount equal any Rent-free period otherwise provided to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each Tenant hereunder shall be cumulative null and may void and of no further force or effect and Rent shall be exercised concurrently, independently, or successively, payable in full hereunder without regard to any ordersuch Rent-free period.
Appears in 1 contract
Sources: Lease Amending and Extension Agreement (Ym Biosciences Inc)
Remedies on Default. A. Florida Housing shall Whenever any Event of Default exists, Lessor will have the right right, at its sole option without any further demand or notice, to exercise take one or any combination of the following remedies upon an Event of Defaultremedial steps:
(ia) temporarilyBy written notice to Lessee, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction Lessor may declare all Rental Payments and other amounts payable by Lessee hereunder to the end of the deficiency then current Original Term or default by the BorrowerRenewal Term to be due;
(iib) cease, in whole With or in part, making any further payments under without terminating this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part , Lessor may enter the premises where the Equipment is located and retake possession of the cost Equipment or require Lessee at Lessee’s expense to promptly return any or all of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services Equipment to the Borrower be replaced;
(vi) remove possession of Lessor at a place specified by Lessor, and sell or lease the [General Partner] [Member] Equipment or, for the account of Lessee, sublease the Borrower and require Equipment, holding Lessee liable for the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, difference between (i) repay to Florida Housing, which shall remit such funds the Rental Payments and other amounts payable by Lessee hereunder to the Treasuryend of the then current Original Term or Renewal Term, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and feesnet proceeds of any such sale, including attorneys’ fees and costs, incurred by Florida Housing lease or sublease (after deducting all expenses of Lessor in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or exercising its remedies under this Agreement, including without limitation, all expenses of taking possession, storing, reconditioning and selling or leasing the Recapture MortgageEquipment and all brokerage, auctioneers’ and attorneys’ fees); and
(c) Lessor may take whatever other action at law or in equity may appear necessary or desirable to enforce its rights as the Assignment Instrumentsowner of the Equipment. In addition, Lessee will remain liable for all covenants and indemnities under this Agreement and for all legal fees and other costs and expenses, including court costs, incurred by Lessor with respect to the Extended Use Agreement enforcement of any of the remedies listed above or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any orderother remedy available to Lessor.
Appears in 1 contract
Sources: Equipment Lease Purchase Agreement
Remedies on Default. A. Florida Housing Whenever any event of default referred to in Section 14.1 hereof shall have occurred and such shall not have been cured in accordance with Section 14.2, the right to exercise University may take any one or more of the following remedies upon an Event of Defaultremedial steps as against the Tenant:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction 14.3.1 The University may re-enter and take possession of the deficiency or default by Leased Premises of Tenant without terminating this Lease and sub-lease the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part interest of the cost Tenant to any party or operate the same on behalf of the activity or action Tenant. In either case, holding the Tenant liable for the difference, if any, between the Rents and other amounts payable under Section Error! Reference source not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance found. by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the remaining terms rents and other amounts payable by such sub-leasing.
14.3.2 If Tenant defaults with respect to any provision of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment InstrumentsLease, including including, but not limited to, the provisions relating to foreclosure the payment of Rent or the obligation to repair and maintain the Premises or to perform any other term, covenant or condition contained herein, University may (but shall not be required to), without prejudice to any other remedy provided herein or provided by law and without notice to Tenant, use the Security Deposit, or any portion of it, to cure the default or to compensate University for all damages sustained by University resulting from ▇▇▇▇▇▇'s default. Tenant shall immediately on demand pay to University a sum equivalent to the portion of the liens thereunder;Security Deposit so expended or applied by University as provided in this paragraph so as to maintain the Security Deposit in the sum initially required to be deposited with University.
14.3.3 The University may terminate this Lease, upon written notice to Tenant, and without any cost or liability to the University, if Tenant is in Default and such Default is continuing. Such notice shall be referred to as a “Default Termination Notice” and shall be effective as of the date specified therein, which shall be at least thirty (x30) exercise any days after its receipt by ▇▇▇▇▇▇.
14.3.4 The University may take whatever other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under action at law or in equity.
B. In addition equity as may appear necessary or desirable to collect the remedies described in Section 10.2A aboveRent then due and thereafter to become due from Tenant or to enforce performance and observance of any obligation, agreement or covenant of the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies Tenant under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any orderLease.
Appears in 1 contract
Sources: Commercial Lease Agreement
Remedies on Default. A. Florida Housing Whenever an Event of Default described in Section 11.01(f) hereof shall have occurred, the Prepayment Amount automatically shall be due and payable, whereupon the Prepayment Amount automatically shall become and be forthwith due and payable without presentment, notice of dishonor, protest or further notice of any kind, all of which are hereby expressly waived by Lessee. Whenever any Event of Default shall have occurred, Bondholder shall have the right right, at its sole option without any further demand or notice, to exercise take any one or any combination of the following remedies upon an Event remedial steps insofar as the same are available to secured parties under Article 9 of Defaultthe UCC in effect in the State from time to time and which are otherwise accorded to Bondholder by applicable law:
(ia) temporarilyby notice to Issuer and Lessee, wholly declare the Prepayment Amount to be forthwith due and payable, whereupon the Prepayment Amount shall become and be forthwith due and payable, without presentment, notice of dishonor, protest or partiallyfurther notice of any kind, suspend making payments all of Exchange Program Funds under this Agreement pending correction of the deficiency or default which are hereby expressly waived by the BorrowerLessee;
(iib) ceasetake possession of the Collateral wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the Collateral for use over a term in whole a commercially reasonable manner, all for the account of Bondholder, provided that Lessee shall remain directly liable for the deficiency, if any, between the rent or in partother amounts paid by a lessee or sublessee of the Collateral pursuant to such lease or sublease during the same period of time, making any further payments under this Agreementafter deducting all costs and expenses, including reasonable attorneys’ fees and expenses, incurred with respect to the recovery, repair and storage of the Collateral during such period of time;
(c) take possession of the Collateral wherever situated, without any court order or other process of law and without liability for entering the premises, and sell the Collateral in a commercially reasonable manner. All proceeds from such sale shall be applied in the following manner: FIRST, to pay all proper and reasonable costs and expenses associated with the recovery, repair, storage and sale of the Collateral, including reasonable attorneys’ fees and expenses; SECOND, to pay (i) Bondholder the amount of all unpaid Lease Payments or other obligations (whether direct or indirect owed by Lessee to Bondholder), if any, which are then due and owing, together with interest and late charges thereon, (ii) Bondholder the then applicable Prepayment Amount (taking into account the payment of past-due Lease Payments as aforesaid), plus a pro rata allocation of interest, at the rate utilized to calculate the Lease Payments, from the next preceding due date of a Lease Payment until the date of payment by the buyer, and (iii) terminate this Agreementany other amounts due hereunder, including indemnity payments, taxes, charges, reimbursement of any advances and other amounts payable to Bondholder or Issuer hereunder; and THIRD, to pay the remainder of the sale proceeds, purchase moneys or other amounts paid by a buyer of the Collateral to Lessee;
(ivd) disallow all proceed by appropriate court action to enforce specific performance by Issuer or part Lessee of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms applicable covenants of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Lease Agreement or to recover for the Loan Documents) and the Assignment Instrumentsbreach thereof, including but not limited the payment of all amounts due from Lessee. Lessee shall pay or repay to foreclosure Bondholder or Issuer all costs of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documentssuch action or court action, including, without limitation, reasonable attorneys’ fees; and
(xie) exercise any other rights and remedies that may be available under take whatever action at law or in equity.
B. In addition equity that may appear necessary or desirable to enforce its rights with respect to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) Collateral. Lessee shall pay or repay to Florida HousingBondholder or Issuer all costs of such action or court action, which including, without limitation, reasonable attorneys’ fees. Notwithstanding any other remedy exercised hereunder, Lessee shall remit such funds remain obligated to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to Bondholder any unpaid portion of the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with Prepayment Amount. In the event of any Event of Default and/or that adversely affects the exercise rights of remedies with respect thereto.
C. Florida Housing Issuer, including, but not limited to, any failure of Lessee to provide liability insurance for its benefit, Issuer may defer proceed by appropriate court action to enforce specific performance by Lessee of the enforcement applicable covenants of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Lease Agreement or to recover damages for the Loan Documents, or otherwise afforded by applicable lawbreach thereof, and each Lessee shall be cumulative and may be exercised concurrentlypay or repay to Issuer all costs of such action or court action, independentlyincluding, or successivelywithout limitation, in any orderreasonable attorneys’ fees.
Appears in 1 contract
Sources: Lease Agreement (Systemax Inc)
Remedies on Default. A. Florida Housing In the event of any default or breach of this Lease by Tenant, Landlord may at any time thereafter, with or without notice or demand, but in accordance with applicable law, and without limiting Landlord in the exercise of any other right or remedy that Landlord may have by reason of such default or breach:
(a) Terminate this Lease and all rights of Tenant hereunder by any lawful means, in which case this Lease shall terminate and Tenant shall immediately surrender possession of the Premises to Landlord. In such event Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant’s default including, but not limited to, (i) the worth at the time of award of any unpaid rent which had been earned at the time of such termination; plus (ii) the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus (iii) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus (iv) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform Tenant’s obligations under this Lease or which in the ordinary course of events would be likely to result therefrom, including, but not limited to, the cost of recovering possession of the Premises, expenses of reletting, renovation and alteration of the Premises, reasonable attorney’s fees, and any real estate commissions. The “worth at the time of award” for purposes of subsections (i) and (ii) above is computed by allowing interest at the maximum legal rate, and the “worth at the time of award” for purposes of subsection (iii) is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In the event Tenant shall have abandoned the Premises, Landlord shall have the option of (x) taking possession of the Premises and recovering from Tenant the amount specified in this paragraph, (y) proceeding under the provisions of the following Paragraph 26(b), and/or (z) exercising any other remedy allowed by law;
(b) Maintain Tenant’s right to possession, in which case this Lease shall continue in effect whether or not Tenant shall have abandoned the Premises. In such event Landlord shall be entitled to enforce all of Landlord’s rights and remedies under this Lease, including the right to recover the rent as it becomes due hereunder. Landlord may enter on and relet the Premises or any part thereof to a third party or third parties for such term or terms and at such rental or rentals and on such other terms and conditions as Landlord in its sole discretion may deem advisable and shall have the right to exercise any of the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services make alterations and repairs to the Borrower Premises. Tenant shall be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide liable for an alternate entity, acceptable all Landlord’s costs in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instrumentsreletting, including but not limited to foreclosure remodeling costs required for the reletting. In the event Landlord relets the premises, Tenant shall pay all rent due under and at the times specified in this Lease, less any amount or amounts actually received by Landlord from the reletting. After a default by Tenant and continuing for so long as Landlord does not terminate this Lease, Tenant shall have the right to assign or sublease the Premises subject only to reasonable limitations. The consent by Landlord to an assignment or sublease shall not release Tenant from liability under this Lease. In the event that Landlord elects to relet all or a portion of the liens thereunder;Premises following a default by Tenant, then rent received by Landlord from the 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 cost of the reletting, third, to the payment of the cost of any alterations and repairs to the Premises; fourth, to the payment of rent due and unpaid under this Lease. The residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. Should that portion of rent received from the reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable during that month by Tenant hereunder, then Tenant shall pay such deficiency to Landlord immediately on demand therefor by Landlord. Such deficiency shall be calculated and paid monthly. Tenant shall also pay to Landlord, as soon as ascertained, any costs and expenses incurred by Landlord in such reletting or in making such alterations and repairs not covered by the rent received from the reletting. No act of Landlord, including but not limited to Landlord’s entry on the Premises, efforts to relet the Premises, or maintenance of the Premises, shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof is decreed by a court of competent jurisdiction. Notwithstanding the fact that Landlord elects to continue the Lease in full force and effect after a default by Tenant and to relet the Premises, Landlord may at any time after such reletting elect to terminate this Lease for any such default; or
(xc) exercise Pursue any other rights remedy now or hereafter available to Landlord. All rights, options and remedies that may of Landlord contained in this Lease shall be available under construed, and held to be, cumulative and no one of them shall be exclusive of the Loan Documents; and
(xi) exercise other, and Landlord shall have the right to pursue any one or all of such remedies or any other rights and remedies that remedy or relief which may now or hereafter be available under provided by law or in equity, whether or not stated in this Lease. No act or omission by any party shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant.
B. In addition to the remedies described in Section 10.2A above(d) If Landlord shall default or breach any terms, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms conditions or provisions of this Agreement Lease, Tenant shall provide Landlord with written notice detailing such default or breach. If Landlord fails to cure such default or breach within thirty (30) days after receipt of such notice from Tenant (unless the nature of such default or breach reasonably requires more than thirty (30) days to cure, then Landlord shall not be deemed in default or breach of this Lease if Landlord has commenced cure within said thirty (30) day period and (ii) pay thereafter diligently prosecutes such cure to Florida Housing completion), then Tenant shall have the right, to institute an amount equal action against Landlord for general damages or to the costs and fees, including attorneys’ fees and costs, incurred pursue Tenant’s other remedies provided by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default law for such period as it determines appropriatedefault or breach, if it determines that [but excluding the Tax Credit Investor or] any Lender is taking appropriate measures right to correct the circumstances giving rise to the Event of Defaultrecover exemplary or punitive damages from Landlord.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Lease Agreement (Netmanage Inc)
Remedies on Default. A. Florida Housing Upon the happening and during the continuance of any Event of Default, Lender shall have the right right, in addition to any other rights or remedies available to Lender under the Mortgage or any of the other Loan Documents or under applicable Law, to exercise any one or more of the following rights and remedies:
(a) Lender may terminate its obligation to disburse any further principal of the Loan pursuant to this Agreement by Notice to Borrower.
(b) Lender may accelerate all of Borrower’s Obligations under the Loan Documents whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or intention to accelerate, presentment or demand for payment, protest or notice of nonpayment or dishonor, or notices or demands of any kind or character (all of which are hereby waived by Borrower).
(c) Lender may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property.
(d) Lender may foreclose the Mortgage and/or exercise all remedies upon with respect to any other Collateral.
(e) Lender may set off the amounts due Lender under the Loan Documents against all accounts, credits, money, securities or other property of Borrower now or hereafter under the control, maintained in an Event account, or in the possession of DefaultLender to the credit or for the account of Borrower, without notice to or the consent of Borrower.
(f) Lender may enter into possession of the Property and perform any and all work and labor necessary to complete the development of the Land and the construction of the Improvements (whether or not in accordance with the Plans and Specifications) and to employ watchmen to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Note and shall be secured by the Mortgage and the other Security Documents. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an interest, but without any fiduciary duty, to complete the work in the name of ▇▇▇▇▇▇▇▇, and hereby empowers said attorney or attorneys, in the name of Borrower or Lender:
(i) temporarily, wholly To use any funds of Borrower including any balance which may be under the control or partially, suspend making payments maintained in an account of Exchange Program Funds under this Agreement pending correction Lender and any funds which may remain unadvanced hereunder for the purpose of completing the development of the deficiency Land and the construction of the Improvements, whether or default by not in the Borrowermanner called for in the Plans and Specifications;
(ii) cease, To make such additions and changes and corrections to the Plans and Specifications as shall be necessary or desirable in whole or in part, making any further payments under this Agreementthe judgment of ▇▇▇▇▇▇ to complete the development of the Land and the construction of the Improvements;
(iii) To employ or terminate this Agreementon behalf of Borrower such contractors, subcontractors, agents, architects and inspectors as shall be necessary or desirable for said purpose;
(iv) disallow To pay, settle or compromise all existing bills and claims which are or part may be liens against the Property, or may be necessary or desirable for the completion of the cost work or the clearance of title to the activity or action not in complianceProperty;
(v) require that To execute all applications and certificates which may be required in the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replacedname of Borrower;
(vi) remove the [General Partner] [Member] To file for record, at ▇▇▇▇▇▇▇▇’s cost and expense and in ▇▇▇▇▇▇▇▇’s name, any notices of the Borrower and require the Borrower to provide for an alternate entitycompletion, acceptable in advance by Florida Housingnotices of cessation of labor, to act or any other notices that Lender in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;sole and absolute discretion may consider necessary or desirable to protect its security; and
(vii) draw upon To do any and apply any escrows and/or reserve accounts in accordance every act with their terms;
(viii) call upon respect to the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms development of the Land and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure construction of the liens thereunder;
(x) exercise Improvements which Borrower may do in its own behalf. It is understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked so long as any other rights Obligations are outstanding. Said attorney-in- fact shall also have the power to prosecute and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law defend all actions or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing proceedings in connection with the Event development of Default and/or the exercise Land and the construction of remedies with respect theretothe Improvements and to take such actions and to require such performance as Lender may deem necessary.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Construction Loan Agreement
Remedies on Default. A. Florida Housing shall have the right to exercise (a) Whenever any of the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or on this Lease occurs or is anticipated to occur, the exercise non-defaulting party shall notify the defaulting party of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an said Event of Default for b prior to expiration of the time to cure such period as it determines appropriate, if it determines that [Event of Default and without e impairing the Tax Credit Investor or] any Lender is taking appropriate measures defaulting party’s opportunity to correct the circumstances giving rise to cure the Event of Default. The non-defaulting party shall act in good faith and take all reasonable measures to r assist the defaulting party in effectuating a cure of the default.
D. Each right (b) Whenever any Event of Default shall have happened and remedy provided be continuing as e to the Lease, the non-defaulting party may take one o:r any combination of the following, remedial steps:
a. terminate the Lease and give notice to Lessee to vacate the Leased Property on or before June 30 of the year in which the Event of Defaultoccurs;
b. after declaring this Agreement is distinct Lease terminated, reenter the Leased Property and occupy the whole or any part thereof for and on account of Lessee and collect any unpaid Base Rentals and other charges, which have become payable, or which may thereafter become payable;
c. sell, assign or lease its interest in all or any portion of the Leased Property. Notwithstanding Lessee’s default nothing shall preclude Lessee from all purchasing the Leased Property;
d. cure the default at the defaulting party's expense, and withhold, reduce or offset any amount against any payments of Base Rent or any other rights or remedies charges due and payable under this AgreementLease;
e. enforce any provision of this Lease by equitable remedy, including, but not limited to, enforcement of the Recapture Mortgagerestrictions on assignment, encumbrance, conveyance, transfer or succession under this Lease by specific performance, writ of mandamus or other injunctive relief; and
f. take whatever action at law or in equity may appear necessary or desirable to enforce its rights in and to the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any orderLeased Property underthis Lease.
Appears in 1 contract
Sources: Lease Agreement
Remedies on Default. A. Florida Housing shall have the right to exercise any of the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty Except as provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix19(f) exercise any rights it may have under the Recapture Mortgage (above, in the event of a default under this Agreement Default, the Landlord may take any one or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure more of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or following remedial steps in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies it may have at law or in equity:
(A) Landlord may terminate this Lease by giving notice of termination, in which event this Lease shall expire and terminate on the date specified in such notice of termination, with the same force and effect as though the date so specified were the date originally fixed as the termination date of the term of this Lease, and all rights of Tenant under the Lease and in and to the Premises shall expire and terminate, and Tenant shall remain liable for all obligations under this AgreementLease arising up to the date of such termination and Tenant shall surrender the Premises to Landlord on the date specified in such notice.
(B) Landlord may, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable lawfrom time to time without terminating this Lease, and without releasing Tenant in whole or in part from its obligation to pay monthly rental and perform all of the covenants, conditions, and agreements to be performed by Tenant as provided in this Lease, make such alterations and repairs as may be necessary in order to re-let the Premises, and after making such alterations and repairs, Landlord may, but shall not be obligated to, re-let the Premises or any part thereof for such term or terms at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable or acceptable; upon each re-letting, all rentals received by Landlord from such re-letting shall be cumulative applied first to the payment of any cost and expenses of such re-letting, including brokerage fees and attorney's fees and all costs of such alterations and repairs, and second to the payment of the monthly rental due and unpaid hereunder, and the residue, if any, shall be held by Landlord and paid to Tenant. In no event shall Tenant be entitled to any excess rental received by Landlord over and above charges that Tenant is obligated to pay hereunder as monthly rental; if such rentals received from such re-letting during any month are less than those to be paid during the month by Tenant hereunder, including monthly rental, Tenant shall pay any such deficiency to Landlord, which deficiency shall be calculated and paid monthly. Tenant shall also pay to Landlord as soon as ascertained and upon demand all costs and expenses incurred by Landlord in connection with such re-letting and making any alterations and repairs which are not covered by the rental received under such re-letting; notwithstanding any such re-letting without termination, Landlord may be exercised concurrently, independently, or successively, in at any ordertime thereafter elect to terminate this Lease for such previous breach.
Appears in 1 contract
Remedies on Default. A. Florida Housing a) It is mutually agreed that if any payment of any rent agreed upon hereunder is not paid by Lessee when due and remains unpaid for more than 15 days past the due date, then Lessee shall have the right to exercise cure the default in payment within 7 days after notice from Lessor to Lessee of the occurrence of the default, provided, that if such default is cured within the 7 days after notice, Lessee shall pay to Lessor as additional rent a late charge of five (5%) percent of the rent then owing; or if Lessee shall be in default in performing any of the following remedies terms or provisions of this Lease other than the provision requiring the payment of rent and such default is not cured (or if Lessee has not commenced action to cure where a cure cannot practicably be completed in a timely manner) within thirty (30) days after notice by Lessor; or if Lessee is adjudicated bankrupt; or if a permanent receiver is appointed for Lessee's property and such receiver is not removed within 45 days after written notice from Lessor to Lessee to obtain such removal; or if, whether voluntarily or involuntarily, Lessee takes advantage of any debtor relief proceedings under any present or future law, whereby the rent or any part thereof is, or is proposed to be, reduced or payment thereof deferred; or if Lessee makes an assignment for benefit of creditors, or if Lessee's effects should be levied upon an Event or attached under process against Lessee, not satisfied or dissolved within 45 days after written notice from Lessor or Lessee to obtain satisfaction thereof, then and in any of Default:said events, if such condition is not corrected or eliminated within seven (7) days after notice from Lessor to Lessee of the existence of the condition, Lessee shall be in default hereunder.
(ib) temporarilyIn the event of any breach of this Lease by Lessee which is not properly cured, wholly Lessor shall be immediately entitled to collect the sum of all rent reserved in this Lease Agreement for the balance of the Lease Term but only if the alleged breach is not disputed in good faith by Lessee, less the reasonable rentable value of the Premises for the remainder of the Term, such sum to be discounted to present value using the NationsBank Prime Interest Rate, and Lessor may, at its option, cancel and terminate this Lease or partially, suspend making payments take such other legal action for the enforcement of Exchange Program Funds the terms hereof as it may be advised; and it shall be lawful for Lessor or its agents to reenter and forthwith repossess all and singular the Premises without hindrance or prejudice to its right to distrain for all rent due or to become due under this Agreement pending correction Lease. The election of Lessor to lease or sublease the deficiency or default by Premises to another Lessee shall not affect Lessor's right to charge Lessee with all rent due to become due hereunder; provided, however, that any rental received from such other tenants shall be credited upon the Borrower;
(ii) ceaseentire amount of rental due, in whole or in partplus costs and expenses, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] from Lessee under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) Lease, but in no event shall any amount of rent received in excess of the amount due be credited to Lessee. Lessor shall not be required to exercise any rights other right granted to Lessor hereunder. Lessor shall have, in addition to any other remedies which it may have under have, the Recapture Mortgage (right to invoke any remedy allowed by law or in equity to enforce Lessor's rights as if reentry and other remedies were not herein provided for. In any event, Lessor shall be entitled to recover from Lessee, in addition to any rent provided for herein, any other amount necessary to compensate Lessor for all the event of a default detriment proximately caused by Lessee's failure to perform its obligations under this Agreement or the Loan Documents) and the Assignment InstrumentsLease, including but not limited to foreclosure reasonable leasing fees and upfit charges.
c) If Landlord shall be in default in the performance of the liens thereunder;
(x) exercise any of its obligations hereunder, Tenant, without any obligation to do so, in addition to any other rights and remedies that it may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under have in law or equity, may elect (but shall not be obligated) to cure such default on behalf of Landlord after written notice (except in equity.
B. In addition the case of emergency) to the remedies described in Section 10.2A above, the Borrower shall, Landlord. Landlord shall reimburse Tenant upon demand for any sums paid or costs incurred by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit Tenant in curing such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and feesdefault, including attorneys’ fees interest thereon from the respective dates of Tenant's making the payments and incurring such costs, incurred by Florida Housing at NationsBank's then published prime interest rate. Landlord shall in connection with no event be in default in the Event performance of Default and/or the exercise any of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for Landlord's obligations hereunder unless and until Landlord shall have failed to perform such period obligations within ten (10) days or such additional time as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures reasonably required to correct the circumstances giving rise any such default after written notice by Tenant to the Event of DefaultLandlord properly specifying wherein Landlord has failed to perform any such obligation.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Remedies on Default. A. Florida Housing Whenever any such User Agreement Default shall have happened and be continuing, the right to exercise Issuer or the Trustee may, with the consent of the Credit Obligor, take any of the following remedies upon an Event of Defaultremedial steps:
(i1) temporarily, wholly or partially, suspend making payments Declare all installments of Exchange Program Funds under this Agreement pending correction User Bond Payments for the remainder of the deficiency or default by Lease Term to be immediately due and payable, whereupon the Borrowersame shall become immediately due and payable;
(ii2) ceaseReenter the Project, in whole without terminating this Lease Agreement, and, upon ten days' prior written notice to the User and Credit Obligor, relet the Project or in partany part thereof for the account of the User, making for such term (including a term extending beyond the Lease Term) and at such rentals and upon such other terms and conditions, including the right to make alterations to the Project or any further payments part thereof, as the Issuer may, with the approval of the Trustee and Credit Obligor, deem advisable, and such reentry and reletting of the Project shall not be construed as an election to terminate this Lease Agreement nor relieve the User of its obligations to pay Basic Rent and Additional Rent or to perform any of its other obligations under this Lease Agreement, all of which shall survive such reentry and reletting, and the User shall continue to pay Basic Rent and all Additional Rent provided for in this Lease Agreement until the end of the Lease Term, less the net proceeds, if any, of any reletting of the Project after deducting all of the Issuer's and Trustee's expenses in connection with such reletting, including, without limitation, all repossession costs, brokers' commissions, attorneys' fees, alteration costs and expenses of preparation for reletting;
(iii3) terminate Terminate this Lease Agreement;, exclude the User from possession of the Project and, if the Issuer or Trustee elects so to do, lease the same for the account of the Issuer, holding the User liable for all rent due up to the date such lease is made for the account of the Issuer; or
(iv4) disallow all Take whatever legal proceedings may appear necessary or part desirable to collect the Rental Payments then due, whether by declaration or otherwise, or to enforce any obligation or covenant or agreement of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default User under this Lease Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equityby law.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Lease Agreement (Cavalier Homes Inc)
Remedies on Default. A. Florida Housing Whenever any event of default referred to in Section 14.1 hereof shall have happened and be subsisting, Lessor may immediately or at any time thereafter and without demand or notice enter upon the right to exercise leased premises or any part thereof in the name of the following whole and repossess the same as of Lessor’s former estate and expel Lessee and those claiming through or under Lessee and remove their effects forcibly if necessary, without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant, and upon an Event such entry this Lease shall terminate, and Lessor may, at its option, declare all installments of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction rent payable for the remainder of the deficiency or default by Term hereof to be immediately due and payable, whereupon the Borrower;
(ii) ceasesame shall become immediately due and payable. Lessee covenants that, in whole or in part, making any further payments case of such termination under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part the provisions of statute by reason of the cost default of the activity or action not Lessee, Lessee shall remain and continue liable to Lessor in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs total rent reserved for the balance of the Term hereof plus all additional rent reserved for the balance of the Term hereof less the net amounts (after deducting the reasonable expenses of reletting, repair, renovation or demolition) which Lessor realizes from the reletting of the Premises. As used in this Section, the term “additional rent” means the value of all considerations other than rent agreed to be paid or performed by Lessee hereunder, including, without limiting the generality of the foregoing, taxes, assessments, and feesinsurance premiums. Lessor shall have the obligation to take reasonable steps to mitigate the damages caused by Lessee’s default hereunder, including attorneys’ fees reletting the leased premises, and costsshall have the right from time to time to relet the leased premises upon such terms as it may reasonably deem fit, incurred by Florida Housing provided such terms are reasonably in connection accordance with the Event of Default and/or general market for the exercise of remedies with respect thereto.
C. Florida Housing may defer Premises in the enforcement of remedies upon area. If a sufficient sum shall not be thus realized to yield the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies net rent required under this AgreementLease, Lessee agrees to satisfy and pay all deficiencies as they may become due during each month of the Recapture Mortgageremaining Term of this Lease. Nothing herein contained-shall be deemed to require Lessor to await the date whereon this Lease, the Assignment Instruments, the Extended Use Agreement or the Loan DocumentsTerm hereof, would have expired had there been no default by Lessee, or otherwise afforded by applicable lawno such termination or cancellation. Lessee expressly waives service of any notice of intention to reenter and waives and all right to recover or regain possession of the leased premises, and each shall be cumulative and or to reinstate or redeem this Lease as may be exercised concurrently, independently, permitted or successively, provided for by or under any statute or law now or hereafter in any orderforce and effect.
Appears in 1 contract
Sources: Lease Agreement (Pc Connection Inc)
Remedies on Default. A. Florida Housing (a) Upon the occurrence and during the continuance of any Event of Default hereunder, the Lessor shall have the right right, at its sole option and without any further demand or notice, to exercise take any one or any combination of the following remedies upon an Event of Defaultremedial actions:
(i) temporarily, wholly or partially, suspend making payments proceed by appropriate court action to enforce performance by the Lessee of Exchange Program Funds under this Agreement pending correction any of the deficiency covenants of this Lease or default by to recover for the Borrower;breach thereof, including the payment of all Base Rentals then or thereafter due from the Lessee, in which event the Lessee shall pay or repay to the Lessor all costs of such action or court action including without limitation, reasonable attorneys’ fees; and
(ii) cease, in whole take whatever action at law or in partequity may appear necessary or desirable to collect the Base Rentals then due and thereafter to become due hereunder. In addition, making any further payments to the extent permitted by law, the Lessee will remain liable for all covenants under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part Lease and for reasonable legal fees and other costs and expenses, including court costs, incurred by the Lessor with respect to the enforcement of any of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor remedies listed above or any other party providing services remedy available to the Borrower be replaced;Lessor.
(vib) remove No right or remedy herein conferred upon or reserved to the [General Partner] [Member] Lessor is exclusive of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement right or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under remedy herein or at law or in equityequity or otherwise provided or permitted, but each shall be cumulative of every other right or remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise, and may be enforced concurrently therewith or from time to time.
B. In addition (c) No waiver of or delay or omission in the exercise of any right or remedy herein provided or otherwise available to the remedies described in Section 10.2A aboveLessor shall impair, affect or be construed as a waiver of its rights thereafter to exercise the Borrower shall, upon demand same. Any single or partial exercise by Florida Housing following the Lessor of any right hereunder shall not preclude any other or further exercise of any right hereunder.
(d) Upon the occurrence and during the continuance of an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, all moneys then held in any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights fund or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each account hereunder shall be cumulative and may be exercised concurrently, independently, or successively, in any orderheld by the Escrow Agent for the benefit of the owners of the Certificates.
Appears in 1 contract
Sources: Lease Agreement
Remedies on Default. A. Florida Housing shall have (a) Upon the right to exercise any occurrence and continuance of an event of default specified in Section 9.1 above, the Lessor shall, only at the direction of the following remedies upon an Event of DefaultCertificateholder, proceed to:
(i) temporarilyProtect and enforce this Lease by such judicial proceedings as the Lessor or its assignee shall deem most effectual, wholly either by suit in equity or partiallyby action at law, suspend making payments whether for the specific performance of Exchange Program Funds under any covenant or agreement contained in this Agreement pending correction Lease, or in aid of the deficiency exercise of any power granted in this Lease, or default to enforce any other legal or equitable right vested in the Lessor or its assignee by the Borrowerthis Lease or by law;
(ii) ceaseTake possession of the Leased Property and exclude the Lessee from using it until the default is cured, in whole or in part, making any further payments holding the Lessee liable for the Lease Payments and other amounts payable by the Lessee prior to such taking of the Leased Property under and pursuant to this Agreement;Lease and curing of such default; or
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under Take whatever actions at law or in equity.
B. In addition equity appear necessary or desirable to enforce its rights as the owner of the Leased Property, including termination of this Lease and the repossession, re-letting (with an approving opinion of Special Counsel) or sale (with an approving opinion of Special Counsel) of the Leased Property. Any abatement of Lease Payments due to damage or destruction of any Leased Property will not constitute an event of default hereunder. Notwithstanding anything herein or in the Trust Agreement to the remedies described contrary, there shall be no right under any circumstances to accelerate the Lease Payments or otherwise declare any Lease Payments not then in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay default to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement be immediately due and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon payable. After the occurrence of an Event event of Default for such period as it determines appropriatedefault hereunder, the Lessee will surrender possession of the Leased Property to the Lessor, if it determines that [requested to do so by the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this AgreementLessor, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement Trustee or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, Certificateholder in any orderaccordance with the provisions of the Trust Agreement.
Appears in 1 contract
Sources: Lease Agreement
Remedies on Default. A. Florida Housing Whenever any Event of Default referred to in Section 10.01 hereof shall have happened and be subsisting, the Lessor, to the extent permitted by law, may take any one or more of the following remedial steps:
(a) The Lessor may from time to time take whatever action at law or in equity or under the terms of this Lease may appear necessary or desirable to collect the rents and other amounts payable by the Lessee hereunder then due or thereafter to become due, or to enforce performance and observance of any obligation, agreement, or covenant of the Lessee under this Lease.
(b) Whether or not the Lessor shall have collected any current damages, the Lessor shall, at its option, be entitled to recover from the Lessee, and the Lessee shall pay to the Lessor on demand, as and for liquidated and agreed final damages for the Lessee’s default and in lieu of all current damages beyond the date of such demand, an amount equal to all unpaid installments of Basic Rent and other amounts payable as hereinafter defined if the Bonds are then outstanding and unpaid, and if any statute or rule of law shall validly limit the amount of such liquidated final damages to less than the amount agreed upon, the Lessor shall be entitled to the maximum amount allowable under such statute or rule of law. The term “all unpaid installments of Basic Rent and other amounts payable” shall mean an amount equal to the entire principal amount of the Bonds then outstanding, together with any applicable redemption premiums and all interest accrued or to accrue on and prior to the next succeeding redemption date, and plus any other payments due or to become due hereunder.
(c) If the Event of Default results from the Lessee’s failure to pay any amount due under the PILOT Agreement, then the Lessor shall have the right to exercise any terminate this Lease by giving an additional written notice to the Lessee of the following remedies upon an Event Lessor’s intention to exercise its right of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with termination unless the Event of Default and/or is cured within forty-five (45) days after the date of the Lessee’s receipt thereof. If the Event of Default is cured within such forty-five (45) day period, this Lease shall remain in full force and effect. If the Event of Default is not cured within such forty-five (45) day period, then the Lessor shall complete the exercise of remedies with respect thereto.
C. Florida Housing may defer its right of termination by execution and delivery of a quitclaim deed of all of the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriateLessor’s right, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise title, and interest in and to the Event Project, whereupon the Lease Term shall end and terminate. No action taken pursuant to this Section shall relieve the Lessee from its obligation to pay the Gross Rent, which shall survive any such action, and the Lessor may take whatever action at law or in equity as may appear necessary and desirable to collect the rents and other amounts then due and thereafter to become due or to enforce the performance and observance of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreementany obligation, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documentsagreement, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any ordercovenant of the Lessee hereunder.
Appears in 1 contract
Remedies on Default. A. Florida Housing Whenever any Event of Default shall have occurred and be continuing, Lessor may, upon written notice to Lessee, at its option, declare this Lease to be in default, and at any time thereafter, so long as all outstanding Events of Default shall not have been remedied, Lessor may take any one or more of the following actions as Lessor in its sole discretion shall elect, to the extent permitted by and subject to compliance with any mandatory requirements of Applicable Law:
(a) Lessor shall have the right to exercise any demand in writing that Lessee pay to Lessor immediately, as and for final liquidated damages and not as a penalty, but exclusive of the following remedies upon indemnities payable under Section 14 of this Lease and other amounts payable by Lessee under the Operative Documents, and in lieu of all damages (including Rent (other than Supplemental Rent)) beyond the date of such demand (the "Demand Date"), and Lessee shall immediately pay the Termination Value for the Property determined as of the Basic Rent Payment Date immediately preceding the Demand Date (it being agreed that the Termination Value shall be adjusted by subtracting therefrom any Basic Rent previously paid by Lessee which is attributable to any period occurring on or after the Demand Date and adding thereto any Basic Rent which has not been paid by Lessee but which has accrued for any portion of the Lease Term occurring prior to the Demand Date); provided that if an Event of DefaultDefault described in Section 15.3 shall occur with respect to Lessee or Guarantor, the Termination Value determined in accordance with this Section 16.1(a) shall automatically, and without any action on the part of Lessor, become immediately due and payable. Lessee waives, to the maximum extent permitted by law, any right to contest the Termination Value as the liquidated sum due upon acceleration of this Lease in accordance with this Section 16.1. Concurrently with the payment by Lessee of the Termination Value to Lessor pursuant to this Section 16.1(a) and the payment of all Supplemental Rent due and owing under the Operative Documents to the Persons entitled thereto:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of all Rent for the deficiency or default by the BorrowerFacility shall cease to accrue;
(ii) ceasethis Lease shall terminate and Lessee shall cease to have any liability to Lessor with respect to the Property, in whole or in part, making except for Supplemental Rent and other obligations surviving pursuant to the express terms of this Lease and any further payments other Operative Document; provided that it shall be a condition of such termination that Lessee shall pay all amounts due which it is obligated to pay under this AgreementLease and the other Operative Documents;
(iii) terminate this Agreement;Lessor shall transfer on an "as is" and "where is" basis (by an appropriate instrument of transfer in form and substance reasonably satisfactory to Lessee (provided that such instrument of transfer shall not contain representations or warranties, express or implied, other than a warranty as to the absence of Liens attributable to Lessor or the Investors) and prepared and recorded at Lessee's expense) the Property to Lessee (or its designee); and
(iv) disallow Lessor, at Lessee's cost and expense, shall execute and deliver and/or cause to be executed and delivered, all appropriate releases and other documents or instruments (and in such form) as Lessee may reasonably request to effect the foregoing and otherwise to release the Property from the terms of this Lease, all of which shall be prepared, filed and, if appropriate, recorded at the cost and expense of Lessee;
(b) Lessor may (i) terminate this Lease as of the date specified in writing to Lessee and (ii) declare the entire balance of Basic Rent to be due and payable together with accrued unpaid Basic Rent and any other Supplemental Rent payable under this Lease and the other Operative Documents, provided that no reletting or taking possession of the Property by Lessor will be construed as a termination of this Lease by Lessor unless Lessor has delivered written notice of its intent to terminate this Lease;
(c) Lessee shall, upon Lessor's written demand, surrender to Lessor possession of the Property in the manner and condition required under this Lease and Lessee shall quit the same. Lessor may act to repossess the Property by such means as are available at law or in equity. Lessor shall have no liability by reason of any such repossession performed in accordance with Applicable Law;
(d) Lessor may, upon twenty (20) days' prior written notice to Lessee of its intention to sell the Property (indicating the date, time and place of any such proposed sale) and subject to Applicable Law, sell in good faith and in a commercially reasonable manner all or any part of the cost of the activity Property at public or action not in complianceprivate sale, as Lessor may determine;
(ve) require Lessor may relet all, or any portion, of the Property, for the account of Lessee, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the Lease Term) and on such conditions and for such purposes as Lessor may determine. Lessor may collect, receive and retain the rents resulting from such reletting and the amount of such rents shall be applied to the Lease Balance. If the amount of such rents during any period is less than the Basic Rent, as the case may be, to be paid during that period by Lessee hereunder, Lessee shall pay any deficiency, as calculated by Lessor, to Lessor on the Developer, next Basic Rent Payment Date;
(f) If the Manager, Event of Default is the Contractor result of Lessee's failure to perform any of its obligations under this Lease or any other party providing services to Operative Document, then, Lessor may, but shall not be obligated to, perform such obligation, and the Borrower fees and expenses incurred by Lessor in connection with such performance together with interest thereon shall be replacedpayable by Lessee upon demand. Interest on fees and expenses so incurred by Lessor shall accrue as provided in Section 4.1(b) from the date such expense is incurred until paid in full;
(vig) remove Lessor, to the [General Partner] [Member] extent permitted by Applicable Law, as a matter of right, shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of the Borrower Property, and require the Borrower Lessee hereby irrevocably consents to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents any such appointment. Any such receiver(s) shall have all of the Borrower;usual powers and duties of receivers in like or similar cases and all of the powers and duties of Lessor in case of entry, and shall continue as such and exercise such powers until the date of confirmation of the sale of such property unless such receivership is sooner terminated; and
(viih) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it Lessor may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies right or remedy that may be available to it under Applicable Law, or proceed by appropriate court action (legal or equitable) to enforce the Loan Documentsterms hereof and/or to recover damages for the breach hereof; and
(xii) Lessor shall be entitled to enforce payment of the indebtedness and performance of the obligations secured hereby and to exercise all rights and powers under this instrument or under any of the other Operative Documents or any laws now or hereafter in force, notwithstanding some or all of the obligations secured hereby may now or hereafter be otherwise secured, whether by mortgage, security agreement, pledge, lien, assignment or otherwise. Neither the acceptance of this instrument nor its enforcement, shall prejudice or in any manner affect Lessor's right to realize upon or enforce any other rights security now or hereafter held by Lessor, it being agreed that Lessor shall be entitled to enforce this instrument and remedies that any other security now or hereafter held by Lessor in such order and manner as Lessor may determine in its absolute discretion. No remedy herein conferred upon or reserved to Lessor is intended to be available under exclusive or any other remedy herein or by law provided or in equity.
B. In addition to the remedies described in Section 10.2A abovepermitted, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Every power or remedy given by any of the Operative Documents to Lessor or to which it may otherwise be entitled, may be exercised concurrentlyexercised, concurrently or independently, or successivelyfrom time to time and as often as may be deemed expedient by Lessor. In no event shall Lessor, in the exercises of the remedies provided in this instrument or the other Operative Documents (including the appointment of a receiver and the entry of such receiver onto all or any orderpart of the Property), be deemed a mortgagee in possession, and Lessor shall not in any way be made liable for any act, either of commission or omission, in connection with the excise of such remedies.
Appears in 1 contract
Sources: Lease Agreement (Weirton Steel Corp)
Remedies on Default. A. Florida Housing If an Event of Default shall occur and be continuing, Lender shall have the right right, in addition to any other rights or remedies available to Lender under the Mortgages or any of the other Junior Loan Documents or under applicable Law, to exercise any one or more of the following remedies upon rights and remedies:
(a) Lender may terminate its obligation to advance any further principal of the Junior Loan pursuant to this Agreement by Notice to Borrower.
(b) Lender may accelerate all of Borrower’s Obligations under the Junior Loan Documents, whether or not matured and regardless of the adequacy of any other collateral securing the Junior Loan, whereupon such Obligations shall become immediately due and payable, without notice of default, acceleration or intention to accelerate, presentment or demand for payment, protest or notice of nonpayment or dishonor, or notices or demands of any kind or character (all of which are hereby waived by Borrower); it being acknowledged and agreed by Lender that any such acceleration shall be without the imposition of any prepayment fee or prepayment penalty of any kind.
(c) Lender may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property.
(d) Subject to the terms of the Lock Box Agreement, Lender may set off the amounts due Lender under the Junior Loan Documents against any and all accounts, credits, money, securities or other property of Borrower now or hereafter on deposit with, held by or in the possession of Lender to the credit or for the account of Borrower, without notice to or the consent of Borrower, and any and all funds in the funds and accounts established under the Lock Box Agreement will be applied to the payment of the Junior Loan pursuant to the terms and conditions of the Lock Box Agreement.
(e) Lender may make Protective Advances and any such Protective Advances shall bear interest at the Past Due Rate under the Junior Note.
(f) Lender may enter into possession of the Property and perform any and all work and labor necessary to complete the development of the Land and the Construction of the Improvements (whether or not in accordance with the Plans and Specifications) and to employ watchmen to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Junior Note and shall be secured by the Mortgages. For this purpose, Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an Event interest, to complete the work in the name of DefaultBorrower, and hereby empowers said attorney or attorneys, in the name of Borrower or Lender:
(i) temporarily, wholly or partially, suspend making payments To use any funds of Exchange Program Funds under this Agreement pending correction Borrower including any balance which may be held by Lender and any funds which may remain unadvanced hereunder for the purpose of completing the development of the deficiency Land and the construction of the Improvements, whether or default by not in the Borrowermanner called for in the Plans and Specifications;
(ii) cease, To make such additions and changes and corrections to the Plans and Specifications as shall be necessary or desirable in whole or in part, making any further payments under this Agreementthe judgment of Lender to complete the development of the Land and the construction of the Improvements;
(iii) terminate this AgreementTo employ such contractors, subcontractors, agents, architects and inspectors as shall be necessary or desirable for said purpose;
(iv) disallow To pay, settle or compromise all existing bills and claims which are or part may be liens against the Property, or may be necessary or desirable for the completion of the cost work or the clearance of title to the activity or action not in complianceProperty;
(v) require that To execute all applications and certificates which may be required in the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replacedname of Borrower;
(vi) remove To enter into, enforce, modify or cancel the [General Partner] [Member] of the Borrower Lease and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrowerfix or modify Rents on such terms as Lender may consider proper;
(vii) draw upon To file for record, at Borrower’s cost and apply expense and in Borrower’s name, any escrows and/or reserve accounts notices of completion, notices of cessation of labor, or any other notices that Lender in accordance with their terms;its sole and absolute discretion may consider necessary or desirable to protect its security; and
(viii) call upon To do any and every act with respect to the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms development of the Land and the remaining terms construction of this Agreement;the Improvements which Borrower may do in its own behalf.
(ixg) It is understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked. Said attorney-in-fact shall also have the power to prosecute and defend all actions or proceedings in connection with the development of the Land and the construction of the Improvements and to take such actions and to require such performance as Lender may deem reasonably necessary.
(h) Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution, which power is coupled with an interest, and hereby empowers said attorney or attorneys, in the name of Borrower or Lender, to exercise any rights it may have remedies available to Lender under the Recapture Mortgage (in Collateral Assignment; provided, however, such power of attorney shall be exercisable only during the event continuation of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Junior Loan Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Remedies on Default. A. Florida Housing shall Whenever any Event of Default exists, subject to the provisions set forth in Section 43, Lessor will have the right right, at its sole option without any further demand or notice, to exercise take one or any combination of the following remedies upon an Event of Defaultremedial steps:
(ia) temporarilyBy written notice to Lessee, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction Lessor may declare all Rental Payments and other amounts payable by Lessee hereunder to the end of the deficiency or default by the BorrowerLease Term to be due;
(b) With or without terminating this Agreement, Lessor may enter the premises where the Personal Property is located and retake possession of the Personal Property or require Lessee at Lessee’s expense to promptly return any or all of the Personal Property to the possession of Lessor at a place specified by Lessor, and sell or lease the Personal Property or, for the account of Lessee, sublease the Personal Property, holding Lessee liable for the difference between (i) the Rental Payments and other amounts payable by Lessee hereunder to the end of the Lease Term, plus the applicable Purchase Price, and (ii) ceasethe net proceeds of any such sale, lease or sublease (after deducting all expenses of Lessor in whole or in part, making any further payments exercising its remedies under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure without limitation, all expenses of taking possession, storing, reconditioning and selling or leasing the liens thereunder;
(x) exercise any other rights Personal Property and remedies that may be available under the Loan Documentsall brokerage, auctioneers’ and attorneys’ fees); and
(xic) exercise any other rights and remedies that Lessor may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event provide written notice of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event escrow agent under any related escrow agreement, and the escrow agent shall thereupon promptly remit to Lessor the entire balance of Default.the acquisition fund established thereunder; and
D. Each right (d) Lessor may take whatever other action at law or in equity may appear necessary or desirable to enforce its rights as the owner of the Personal Property. In addition, Lessee will remain liable for all covenants and remedy provided in indemnities under this Agreement is distinct from and for all legal fees and other rights costs and expenses, including court costs, incurred by Lessor with respect to the enforcement of any of the remedies listed above or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any orderother remedy available to Lessor.
Appears in 1 contract
Sources: Lease Purchase Agreement
Remedies on Default. A. Florida Housing Whenever any Event of Default exists, Lessor shall have the right right, at its sole option without any further demand or notice, to exercise take one or any combination of the following remedial steps: (a) by written notice to Lessee, Lessor may declare all Rental Payments payable by Lessee pursuant to such Lease and other amounts payable by Lessee under such Lease to the end of the then current Original Term or Renewal Term to be immediately due and payable; (b) with or without terminating the Lease Term under such Lease, Lessor may enter the premises where the Equipment listed in such Lease is located and retake possession of such Equipment or require Lessee at Lessee’s expense to promptly return any or all of such Equipment to the possession of Lessor at such place within the United States as Lessor shall specify, and sell or lease such Equipment or, for the account of Lessee, sublease such Equipment, continuing to hold Lessee liable for the difference between (i) the Rental Payments payable by Lessee pursuant to such Lease and other amounts related to such Lease of the Equipment listed therein that are payable by Lessee to the end of the then current Original Term or Renewal Term, as the case may be, and (ii) the net proceeds of any such sale, leasing or subleasing (after deducting all expenses of Lessor in exercising its remedies upon an under such Lease, including without limitation all expenses of taking possession, storing, reconditioning and selling or leasing such Equipment and all brokerage, auctioneer’s and attorney’s fees), subject, however, to the provisions of Section 7 hereof. The exercise of any such remedies in respect of any such Event of DefaultDefault shall not relieve Lessee of any other liabilities under any other Lease or the Equipment listed therein; and (c) Lessor may take whatever action at law or in equity may appear necessary or desirable to enforce its rights under such Lease or as a secured party in any or all of the Equipment. Any net proceeds from the exercise of any remedy under a Lease (after deducting all costs and expenses referenced in the Section) shall be applied as follows:
(i) temporarilyif such remedy is exercised solely with respect to a single Lease, wholly Equipment listed in such Lease or partiallyrights thereunder, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency then to amounts due pursuant to such Lease and other amounts related to such Lease or default by the Borrower;
such Equipment; or (ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit if such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies remedy is exercised with respect theretoto more than one Lease, Equipment listed in more than one Lease or rights under more than one Lease, then to amounts due pursuant to such Leases pro-rata.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Remedies on Default. A. Florida Housing In the event (a) Tenant defaults in paying any rental payments hereunder; or (b) Tenant defaults for thirty (30) days after written notice thereof in performing any other of its obligations hereunder; or (c) Tenant is adjudicated a bankrupt; or (d) a permanent receiver is appointed for Tenant’s property, including Tenant’s Interest in the Demised Premised, and such receiver is not removed within sixty (60) days after written notice from Landlord to Tenant to obtain such removal; or (e) whether voluntarily or involuntarily, Tenant takes advantage of any debtor relief proceedings under any present of future law, whereby the rent or any part thereof is, or is proposed to be reduced or payment thereof deferred, and such proceedings are not dismissed within sixty (60) days after notice from Landlord; or (f) Tenant makes an assignment for benefit of creditors; or (g) the Demised Premises or Tenant’s effects or interest therein should be levied upon or attached under process against Tenant, and not satisfied or dissolved within sixty (60) days after written notice from Landlord to Tenant to obtain satisfaction thereof; or (h) Tenant vacates the Demised Premises or fails to conduct its regular, routine business therein during normal business hours for a period of more than thirty (30) days, then, and in any of said events, notwithstanding any former waiver, Landlord shall have the right option to exercise do any of or the following remedies upon an Event (in addition to any not in limitation of Default:any other remedy permitted by law or by this Lease):
(i1) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under Terminate this Agreement pending correction of the deficiency or default by the Borrower;
(ii) ceaseLease, in whole or in partwhich event Tenant shall immediately surrender the Demised Premises to Landlord, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developerbut if Tenant shall fail to do so, the ManagerLandlord may, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;applicable law, without further notice and without prejudice to any other remedy Landlord may have for possession or arrearages in rent, enter upon the Demised Premises and expel or remove Tenant and its effects, by force if necessary, without being liable to prosecution or any claim for damages therefor. Landlord shall have any and all remedies allowed to it under Georgia law, but shall not be entitled to terminate the Lease and collect rent past the date of termination; or
(viii2) call upon Without terminating this Lease re-enter the guaranty provided Demised Premises by Borrower summary proceedings or otherwise, and in Section 6.7 hereof any event may dispossess the Tenant, removing all persons and property from the Demised Premises and such property may be removed and stored in accordance with its 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. In the event of such reentry, Landlord may relet the Demised Premises to such tenant or tenants for such term or terms as Landlord may elect, without being obligated to do so, and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or reletting shall apply the Loan Documents) rent therefrom first to the payment of Landlord’s expenses, including attorney’s fees incurred by reason of Tenant’s default, and the Assignment Instruments, expense of reletting including but not limited to foreclosure the repairs, renovation or alteration of the liens thereunder;Demised Premises, and then to the payment of rent and all other sums due from Tenant hereunder, Tenant remaining liable for any deficiency. Such deficiency shall be calculated and paid monthly. No such re-entry or taking possession of the Demised Premises by Landlord shall be construed as an election on his part to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. It is expressly understood between the parties, that except as stated above, it is the intention of the parties that Landlord may collect rent as each month’s rent becomes due, but shall not have any right to accelerate rent prior to termination.
(x3) exercise In addition, Landlord may, as agent of Tenant, do whatever Tenant is obligated to do by the provisions of this Lease and may enter the Demised Premises, without being liable to prosecution or any other rights claim for damages therefor, in order to accomplish this purpose. Tenant agrees to reimburse Landlord immediately upon demand for any expenses which Landlord may incur in this effecting compliance with this Lease on behalf of Tenant, and remedies Tenant further agrees that may Landlord shall not be available under the Loan Documents; and
(xi) exercise liable for any other rights and remedies that may be available under law or in equity.
B. In addition damages resulting to the remedies described in Section 10.2A aboveTenant from such action, unless caused by the Borrower shall, upon demand by Florida Housing following an Event negligence of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect theretoLandlord.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Remedies on Default. A. Florida Housing Whenever any such event of default shall have happened and be continuing, the right to exercise Bondholders (or the Bank on their behalf) may take any of the following remedies upon an Event of Defaultremedial steps:
(i1) temporarilyDeclare all installments of Basic Rent, wholly or partiallyand any other payments to be paid under Section 5.02(a) hereof, suspend making payments of Exchange Program Funds payable under this Lease Agreement pending correction for the remainder of the deficiency or default by Lease Term to be immediately due and payable, whereupon the Borrower;same shall become immediately due and payable.
(ii2) ceaseReenter the Project Site, in whole without terminating this Lease Agreement, and, upon ten days' prior written notice to the Partnership, relet the Project or in partany part thereof for the account of the Partnership, making for such term (including a term extending beyond the Lease Term) and at such rentals and upon such other terms and conditions, including the right to make alterations to the Project or any further payments part thereof, as the Bondholders (or the Bank on their behalf) may deem advisable, and such reletting of the Project shall not be construed as an election to terminate this Lease Agreement nor relieve the Partnership of its obligations to pay Basic Rent and additional rent or to perform any of their other obligations under this Lease Agreement;, all of which shall survive such reentry and reletting, and the Partnership shall continue to pay Basic Rent and all additional rent provided for in this Lease Agreement until the end of the Lease Term, less the net proceeds, if any, of any reletting of the Project after deducting all expenses of the Bondholders (or the Bank on their behalf) in connection with such reletting, including, without limitation, all repossession costs, brokers' commissions, attorneys' fees, alteration costs and expenses of preparation for reletting.
(iii3) terminate Terminate this Lease Agreement;, exclude the Partnership from possession of the Project and, if the Bondholders (or the Bank on their behalf) elect so to do, lease the same for the account of the Issuer, holding the Partnership liable for all rent due up to the date such lease is made for the account of the Issuer.
(iv4) disallow Have and exercise with respect to any or all personal property and fixtures included in the Project, all rights, remedies and powers of a secured party under the Alabama Uniform Commercial Code including without limitation the rights and powers set forth in the Indenture with respect thereto. To the extent permitted by law, the Partnership expressly waives any notice of sale or part disposition of the cost Project and any rights or remedies of the activity Bondholders or action not in compliance;
(v) require that Issuer with respect to, and the Developerformalities prescribed by law relative to, the Managersale or disposition of the Project or to the exercise of any other right or remedy of the Bondholders or Issuer existing after default. To the extent that such notice is required and cannot be waived, the Contractor or any other party providing services Partnership agrees that if such notice is given to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts Partnership in accordance with their terms;the provisions hereof, at least ten days before the time of the sale or other disposition, such notice shall be deemed reasonable and shall fully satisfy any requirements for giving said notice.
(viii5) call upon Take whatever legal proceedings may appear necessary or desirable to collect the guaranty provided rent then due, whether by Borrower in Section 6.7 hereof in accordance with its terms and declaration or otherwise, or to enforce any obligation or covenant or agreement of the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default Partnership under this Lease Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equityby law.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Lease Agreement (Cavalier Homes Inc)
Remedies on Default. A. Florida Housing shall have the right to exercise any of the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of Whenever an Event of Default shall have happened and be subsisting, any one (1) or more of the following remedial steps may be taken:
(a) The SUBLESSOR may, with the consent of the DIRECTOR, and shall at the request of the DIRECTOR, declare all installments of Rent, together with any Additional Payments and other amounts payable hereunder to be immediately due and payable, whereupon the same shall become immediately due and payable;
(b) The SUBLESSOR may re-enter and take possession of the PROJECT SITE and the PROJECT FACILITIES without terminating this SUBLEASE and SUBLEASE the PROJECT SITE and the PROJECT FACILITIES for the Account of the SUBLESSEE holding the SUBLESSEE liable for the difference between the Rent and other amounts payable by such period as it determines appropriateSubleasee in such Subleasing and the Rent, if it determines that [Additional Payments and other amounts payable by the Tax Credit Investor or] any Lender is taking appropriate measures SUBLESSEE hereunder;
(c) The SUBLESSOR may terminate this SUBLEASE, exclude the SUBLESSEE from possession of the PROJECT SITE and the PROJECT FACILITIES and lease the PROJECT SITE and the PROJECT FACILITIES to correct another, but holding the circumstances giving rise SUBLESSEE liable for all Rent, Additional Payments and other amounts payable hereunder up to the Event effective date of Default.such Subleasing;
D. Each right (d) The SUBLESSOR and remedy provided the DIRECTOR may have access to, inspect, examine and make copies of the Books and Record, Accounts, and Financial Data of the SUBLESSEE pertaining to the PROJECT;
(e) The SUBLESSOR or the DIRECTOR may pursue all remedies now or hereafter existing at law or in this Agreement is distinct from equity to collect all other rights or remedies the amounts then due and thereafter to become due under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan DocumentsSUBLEASE, or otherwise afforded by to enforce the performance and observance of any other obligation or agreement of the SUBLESSEE, under this SUBLEASE. Any amounts collected as or applicable law, to Rent and each any other amounts which would be applicable to payment of principal of or interest on the NOTE collected pursuant to action taken under this Section shall be cumulative and may be exercised concurrently, independently, or successively, in any orderpaid to the DIRECTOR.
Appears in 1 contract
Sources: Sublease (Luiginos Inc)
Remedies on Default. A. Florida Housing Whenever an Event of Default described in Section 11.01(f) hereof shall have occurred, the Prepayment Amount automatically shall be due and payable, whereupon the Prepayment Amount automatically shall become and be forthwith due and payable without presentment, notice of dishonor, protest or further notice of any kind, all of which are hereby expressly waived by Borrower. Whenever any other Event of Default shall have occurred, Lender, as assignee of Issuer, shall have the right right, at its sole option without any further demand or notice, to exercise take any one or any combination of the following remedies upon an Event remedial steps insofar as the same are available to secured parties under Article 9 of Defaultthe UCC in effect in the State from time to time and which are otherwise accorded to Lender, as assignee of Issuer, by applicable law:
(ia) temporarilyby notice to Issuer and Borrower, wholly declare the Prepayment Amount to be forthwith due and payable, whereupon the Prepayment Amount shall become and be forthwith due and payable, without presentment, notice of dishonor, protest or partiallyfurther notice of any kind, suspend making payments all of Exchange Program Funds under this Agreement pending correction of the deficiency or default which are hereby expressly waived by the Borrower;
(iib) ceasetake possession of the Equipment wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the Equipment for use over a term in whole a commercially reasonable manner, all for the account of Lender, provided that Borrower shall remain directly liable for the deficiency, if any, between the rent or in partother amounts paid by a lessee or sublessee of the Equipment pursuant to such lease or sublease during the same period of time, making any further payments under this Agreementafter deducting all costs and expenses, including reasonable attorneys’ fees and expenses, incurred with respect to the recovery, repair and storage of the Equipment during such period of time;
(c) take possession of the Equipment wherever situated, without any court order or other process of law and without liability for entering the premises, and sell the Equipment in a commercially reasonable manner. All proceeds from such sale shall be applied in the following manner: FIRST, to pay all proper and reasonable costs and expenses associated with the recovery, repair, storage and sale of the Equipment, including reasonable attorneys’ fees and expenses; SECOND, to pay (i) Lender the amount of all unpaid Loan Payments or other obligations (whether direct or indirect owed by Borrower to Lender), if any, which are then due and owing, together with interest and late charges thereon, (ii) Lender the then applicable Prepayment Amount (taking into account the payment of past-due Loan Payments as aforesaid), plus a pro rata allocation of interest, at the rate utilized to calculate the Loan Payments, from the next preceding due date of a Loan Payment until the date of payment by the buyer, and (iii) terminate this Agreement;
(iv) disallow all any other amounts due hereunder, including indemnity payments, taxes, charges, reimbursement of any advances and other amounts payable to Lender or part Issuer hereunder; and THIRD, to pay the remainder of the cost sale proceeds, purchase moneys or other amounts paid by a buyer of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services Equipment to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(viid) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon proceed by appropriate court action to enforce specific performance by Issuer or Borrower of the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms applicable covenants of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or to recover for the Loan Documents) and the Assignment Instrumentsbreach thereof, including but not limited the payment of all amounts due from Borrower. Borrower shall pay or repay to foreclosure Lender or Issuer all costs of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documentssuch action or court action, including, without limitation, reasonable attorneys’ fees; and
(xie) exercise any other rights and remedies that may be available under take whatever action at law or in equity.
B. In addition equity that may appear necessary or desirable to enforce its rights with respect to the remedies described in Section 10.2A above, the Equipment. Borrower shall, upon demand by Florida Housing following an Event of Default, (i) shall pay or repay to Florida HousingLender or Issuer all costs of such action or court action, which including, without limitation, reasonable attorneys’ fees. Notwithstanding any other remedy exercised hereunder, Borrower shall remit such funds remain obligated to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to Lender any unpaid portion of the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect theretoPrepayment Amount.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Remedies on Default. A. Florida Housing (a) If a default by Tenant occurs, Landlord may
(1) Immediately re-enter and remove all persons and personal property from the property leased, storing the removed property in a public warehouse or elsewhere at Tenant's expense without liability, or
(2) Relet the property, or any part of it, for the account of Tenant for the remainder of the term to any tenant at the rent and on the conditions that Landlord deems advisable. Landlord shall have credit the right rent received on the balance due from Tenant first, to exercise any expenses incurred because of the repossession, next, to interest and the balance to principal. Landlord may repair or restore the premises if required for reletting. Repossession shall not terminate this lease unless Landlord gives notice of termination to Tenant, or
(3) Collect each installment of rent or other sum due under this lease as it becomes due or otherwise enforce any of the following remedies upon an Event of Default:its provisions that are not being complied with by Tenant, or
(i4) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction Await the end of the deficiency term of this lease and then collect all rent or default by the Borrower;other sums due under it, or
(ii5) ceaseTerminate this lease by notice to Tenant in which event Tenant shall immediately surrender possession of the property and pay Landlord all loss or damages incurred because of Tenant's default including all rent due or to become due, in whole or in part, making any further payments under this Agreement;all of which shall become due forthwith.
(iiib) terminate Notice or demand is not a prerequisite to any remedy unless another part of this Agreement;lease provides for notice or demand in which event that provision shall prevail.
(ivc) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to any other loss or damages that Landlord sustains because of Tenant's default, Tenant shall pay all expenses of repairs or renovation to the remedies described property required as a result of his tenancy, transfer and storage charges for Tenants' personal property removed from the property leased, brokers commissions, costs, expenses and attorney's fees for enforcing or construing this lease, whether for trial, appeal or otherwise.
(d) Tenant grants Landlord a lien on Tenant's personal property located on the property leased to secure all sums due or to become due under this lease in Section 10.2A aboveaddition to any statutory lien or right to distrain. Tenant shall not remove Tenant's personal property from the property leased until all money due Landlord is paid. If Tenant's personal property is removed, the Borrower shalllien continues for a period of six months during which Landlord may seize Tenant's personal property wherever found and sell it or so much of it as will satisfy all money due Landlord without process. This lien may be enforced by distress regardless of the nature of the money due.
(e) Any payment required under this lease that either party does not make bears interest at the greater of 12% per annum or 1% in excess of the prime rate of interest reported by Citibank in the Wall Street Journal (or comparable publication selected by Landlord) computed monthly in arrears as of the first business day of each month. If Citibank ceases to publish a prime rate of interest, upon demand the prime rate of another recognized institutional lender selected by Florida Housing following an Event Landlord shall be utilized. Notwithstanding any provisions of Default, (i) repay to Florida Housing, which shall remit such funds this Lease to the Treasurycontrary, no interest, charges, or other payments in excess of those permitted by law shall accrue or become payable hereunder and any amount excessive payments which may be made shall be applied to future rental payments or, at the option of Exchange Program Funds previously disbursed Landlord, shall be refunded to the Borrower under the terms Tenant.
(f) All remedies of Landlord are cumulative to each other and to any other remedies given by law. All rights of Landlord on Tenant's default apply to an extension of this Agreement and (ii) pay to Florida Housing an amount equal to lease. By making a payment for Tenant or from any security deposit, Landlord does not waive Tenant's default or any right Landlord has because of the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect theretodefault.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Remedies on Default. A. Florida Housing Whenever any Event of Default exists, the Lessor shall have the right right, at its sole option without any further demand or notice, to exercise take one or any combination of the following remedies upon an Event of Defaultremedial steps:
(ia) temporarilyThe Lessor may by notice in writing to the Lessee terminate the Lease, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction whereupon all rights of the deficiency or default by Lessee to use the BorrowerEquipment shall cease and terminate;
(iib) ceaseBy written notice to the Lessee, in whole the Lessor may demand that the Lessee pay, as liquidated damages for loss of a bargain and not as a penalty, all unpaid Rental Payments payable by the Lessee pursuant to such Lease and other amounts payable by the Lessee under such Lease to the end of the then current Original Term or in part, making any further payments under this AgreementRenewal Term;
(iiic) terminate this Agreement;
(iv) disallow With or without terminating the Lease Term under such Lease, the Lessor may request that the Lessee at the Lessee's expense promptly return any or all or part of such Equipment to the possession of the cost Lessor at such place within the United States as the Lessor shall specify. In such event, the Lessor shall use its best efforts to sell or lease such Equipment or, for the account of the activity Lessee, sublease such Equipment. If the Lessee returns the Equipment and the Lessor sells, leases or action not in compliance;
(v) require that otherwise disposes of any or all of the DeveloperEquipment, the ManagerLessor shall apply the proceeds of such sale, lease or other disposition as described in Section 12.04. The Lessee shall not be liable for any deficiency after sale, lease or other disposition of the Equipment. If the Lessee elects not to return the Equipment, the Contractor or Lessor is entitled to payment of unpaid Rental Payments through the date of the Lessor's request to return the Equipment plus the then applicable Purchase Price, as set forth in the applicable Schedule for such Equipment. The exercise of any such remedies respecting any such Event of Default shall not relieve the Lessee of any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] liabilities under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement other Lease or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan DocumentsEquipment listed therein; and
(xid) exercise any other rights and remedies that The Lessor may be available under take whatever action at law or in equityequity may appear necessary or desirable to enforce its rights under such Lease.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Remedies on Default. A. Florida Housing Whenever any Event of Default shall have occurred and be continuing, Lender, as assignee of Issuer, shall have the right right, at its sole option without any further demand or notice, to exercise take any one or any combination of the following remedies upon an Event remedial steps insofar as the same are available to secured parties under Article 9 of Defaultthe UCC in effect in the State from time to time and which are otherwise accorded to Lender, as assignee of Issuer, by applicable law:
(ia) temporarilyby notice to Issuer and Borrower, wholly or partiallydeclare the entire unpaid principal amount of the Loan then outstanding, suspend making payments of Exchange Program Funds all interest accrued and unpaid thereon and all amounts payable under this Agreement pending correction to be forthwith due and payable, whereupon the Loan, all such accrued interest and all such amounts shall become and be forthwith due and payable, without presentment, notice of the deficiency dishonor, protest or default further notice of any kind, all of which are hereby expressly waived by the Borrower;
(iib) ceasetake possession of the Equipment and/or Additional Collateral wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the Equipment and/or Additional Collateral for use over a term in whole a commercially reasonable manner, all for the account of Lender, provided that Borrower shall remain directly liable for the deficiency, if any, between the rent or in partother amounts paid by a lessee or sublessee of the Equipment and/or the Additional Collateral pursuant to such lease or sublease during the same period of time, making any further payments under this Agreementafter deducting all costs and expenses, including reasonable attorneys' fees and expenses, incurred with respect to the recovery, repair and storage of the Equipment and/or Additional Collateral during such period of time;
(c) take possession of the Equipment and/or the Additional Collateral wherever situated, without any court order or other process of law and without liability for entering the premises, and sell the Equipment and/or Additional Collateral in a commercially reasonable manner. All proceeds from such sale shall be applied in the following manner: FIRST, to pay all proper and reasonable costs and expenses associated with the recovery, repair, storage and sale of the Equipment and/or Additional Collateral, including reasonable attorneys' fees and expenses; SECOND, to pay (i) Lender the amount of all unpaid Loan Payments or other obligations (whether direct or indirect owed by Borrower to Lender), if any, which are then due and owing, together with interest and late charges thereon, (ii) Lender the then applicable Prepayment Amount (taking into account the payment of past-due Loan Payments as aforesaid), plus a pro rata allocation of interest, at the rate utilized to calculate the Loan Payments, from the next preceding due date of a Loan Payment until the date of payment by the buyer, and (iii) terminate this Agreement;
(iv) disallow all any other amounts due hereunder, including indemnity payments, taxes, charges, reimbursement of any advances and other amounts payable to Lender or part Issuer hereunder; and THIRD, to pay the remainder of the cost sale proceeds, purchase moneys or other amounts paid by a buyer of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services Equipment and/or Additional Collateral to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(viid) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon proceed by appropriate court action to enforce specific performance by Issuer or Borrower of the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms applicable covenants of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or to recover for the Loan Documents) and the Assignment Instrumentsbreach thereof, including but not limited the payment of all amounts due from Borrower. Borrower shall pay or repay to foreclosure Lender or Issuer all costs of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documentssuch action or court action, including, without limitation, reasonable attorneys' fees; and
(xie) exercise any other rights and remedies that may be available under take whatever action at law or in equity.
B. In addition equity may appear necessary or desirable to enforce its rights with respect to the remedies described in Section 10.2A above, the Equipment and/or Additional Collateral. Borrower shall, upon demand by Florida Housing following an Event of Default, (i) shall pay or repay to Florida HousingLender or Issuer all costs of such action or court action, which including, without limitation, reasonable attorneys' fees. Notwithstanding any other remedy exercised hereunder, Borrower shall remit such funds remain obligated to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to Lender any unpaid portion of the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect theretoPrepayment Amount.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Sources: Loan Agreement (Gt Bicycles Inc)
Remedies on Default. A. Florida Housing Upon the termination of this Lease, at its expiration by lapse of time or otherwise, the Tenant shall yield up immediate possession to the Landlord. It is mutually agreed as a condition of this Lease, and the Tenant covenants, that if there shall be a default as defined above, then and in each and every case, the term hereby granted shall, at the election of the Landlord, immediately thereupon cease, terminate and come to an end, without further formality and without prejudice to Landlord's right to rents due or to become due; and the Landlord may recover and resume possession of the demised premises by any legal means; and in such case, the Landlord shall have the right to exercise re-enter upon said premises and resume possession of same and without prejudice to any of the following remedies upon an Event of Default:
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require which might otherwise be available to Landlord. It is understood and agreed that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or Tenant's obligations as defined in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, so that Landlord resumes possession of the Recapture Mortgagesubject real property and improvements thereon, the Assignment InstrumentsTenant's obligations for monthly installment payments shall not terminate; that each month's unpaid installment shall constitute a separate cause of action for which the Landlord may litigate independently. Any action or suit to recover possession of said real property and improvements shall not terminate rent obligations due from Tenant. The written notice of Landlord's intention to terminate this Lease hereinabove provided for shall be deemed a re-entry under the law, as to all rights between Landlord and Tenant herein, and upon any such resumption of possession by the Extended Use Agreement or Landlord in any manner, Landlord may remove all persons and property from the Loan Documentsdemised premises. Landlord may thereafter be entitled to hold the Tenant liable for expenses incurred by the Landlord for necessary repairs to the demised premises, so far as incumbent upon the Tenant to keep same in repair, or otherwise afforded by applicable lawreason of the breach of any of the terms, conditions, or covenants of this Lease, and each shall be cumulative all expenses incurred in recovering possession of the premises and may be exercised concurrently, independently, or successively, in any orderreletting same to mitigate Landlord's loss.
Appears in 1 contract
Remedies on Default. A. Florida Housing Whenever any Event of Default exists, Lessor shall have the right right, at its sole option without any further demand or notice, to exercise take one or any combination of the following remedies upon an Event remedial steps: (a) by written notice to Lessee, Lessor may declare all Rental Payments payable by Lessee pursuant to such Lease and other amounts payable by Lessee under such Lease to the end of Default:the then current Original Term or Renewal Term to be immediately due and payable; (b) with or without terminating the Lease Term under such Lease, Lessor may enter the premises where the Equipment listed in such Lease is located and retake possession of such Equipment or require Lessee at Lessee's expense to promptly return any or all of such Equipment to the possession of Lessor at such place within the United States as Lessor shall specify, and sell or lease such Equipment or, for the account of Lessee, sublease such Equipment, continuing to hold Lessee liable for the difference between
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction the Rental Payments payable by Lessee pursuant to such Lease and other amounts related to such Lease of the deficiency or default Equipment listed therein that are payable by Lessee to the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part end of the cost of then current Original Term or Renewal Term, as the activity or action not in compliance;
(v) require that the Developercase may be, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal the net proceeds of any such sale, leasing or subleasing (after deducting all expenses of Lessor in exercising its remedies under such Lease, including without limitation all expenses of taking possession, storing, reconditioning and selling or leasing such Equipment and all brokerage, auctioneer’s and attorney’s fees), subject, however, to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing provisions of Section 7 hereof. The exercise of any such remedies in connection with the respect of any such Event of Default and/or shall not relieve Lessee of any other liabilities under any other Lease or the Equipment listed therein; and (c) Lessor may take whatever action at law or in equity may appear necessary or desirable to enforce its rights under such Lease or as a secured party in any or all of the Equipment. Any net proceeds from the exercise of remedies any remedy under a Lease (after deducting all costs and expenses referenced in the Section) shall be applied as follows: (i) if such remedy is exercised solely with respect theretoto a single Lease, Equipment listed in such Lease or rights thereunder, then to amounts due pursuant to such Lease and other amounts related to such Lease or such Equipment; or (ii) if such remedy is exercised with respect to more than one Lease, Equipment listed in more than one Lease or rights under more than one Lease, then to amounts due pursuant to such Leases pro-rata.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Remedies on Default. A. Florida Housing shall Whenever any Event of Default exists, Lessor will have the right right, at its sole option without any further demand or notice, to exercise take one or any combination of the following remedies upon an Event of Defaultremedial steps:
(ia) temporarilyBy written notice to ▇▇▇▇▇▇, wholly or partially, suspend making payments Lessor may declare all principal portions of Exchange Program Funds under this Agreement pending correction Rental Payments and other amounts payable by Lessee hereunder to the end of the deficiency or default by Lease Term and interest portions of Rental Payments accrued to the Borroweractual payment date to be due;
(iib) cease, in whole With or in part, making any further payments under without terminating this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part , Lessor may enter the premises where the Equipment is located and retake possession of the cost Equipment or require Lessee at Lessee’s expense to promptly return any or all of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services Equipment to the Borrower be replaced;
(vi) remove possession of Lessor at a place specified by Lessor, and sell or lease the [General Partner] [Member] Equipment or, for the account of Lessee, sublease the Borrower and require Equipment, holding Lessee liable for the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, difference between (i) repay to Florida Housing, which shall remit such funds the Rental Payments and other amounts payable by Lessee hereunder to the Treasuryend of the Lease Term, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and feesnet proceeds of any such sale, including attorneys’ fees and costs, incurred by Florida Housing lease or sublease (after deducting all expenses of Lessor in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or exercising its remedies under this Agreement, including without limitation, all expenses of taking possession, storing, reconditioning and selling or leasing the Recapture MortgageEquipment and all brokerage, auctioneers’ and attorneys’ fees); and
(c) Lessor may take whatever other action at law or in equity may appear necessary or desirable to enforce its rights under this Agreement. In addition, ▇▇▇▇▇▇ will remain liable for all covenants under this Agreement and for all legal fees and other costs and expenses, including court costs, incurred by Lessor with respect to the Assignment Instruments, enforcement of any of the Extended Use remedies listed above or any other remedy available to Lessor. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ agree that there is no intention to create under this Agreement a right of Lessor to dispossess Lessee involuntarily of the legal title to or the Loan Documents, or otherwise afforded by applicable law, right of use of the Equipment. Lessor hereby irrevocably waives any right to specific performance of ▇▇▇▇▇▇’s covenant to transfer legal title and each shall be cumulative and may be exercised concurrently, independently, or successively, in any orderreturn of possession of the Equipment to Lessor.
Appears in 1 contract
Sources: Equipment Lease Purchase Agreement
Remedies on Default. A. Florida Housing shall have the right to exercise any of the following remedies upon an Event of Default:
(ia) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in In the event of any Event of Default as defined in Section 36 above (provided same is an uncured default in cases where there exists a default under this Agreement grace period and cure right), or if Tenant shall be vacated by summary proceedings or otherwise, the Loan Documents) Landlord, in addition to other remedies herein contained, or as may be permitted by law, may re-enter the Leased Premises and the Assignment Instrumentssame have and again possess and enjoy; and as agent for the Tenant or otherwise, including but not limited to foreclosure of re-let the liens thereunder;
(x) exercise any other rights Leased Premises and remedies that may be available under receive the Loan Documents; and
(xi) exercise any other rights rents therefor and remedies that may be available under law or in equity.
B. In addition apply the same, first, to the remedies described in Section 10.2A abovepayment of such expenses, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including reasonable attorneys’ fees and costs as the Landlord may have incurred in re-entering and repossessing the Leased Premises and in making such repairs and alterations as may be necessary; and, second, to the payment for such rent as may be in arrears and also the rent as may accrue subsequent to the re-entry by the Landlord, to the extent of the difference between the rent reserved hereunder and the rent, if any, received by the Landlord during the remainder of the unexpired term hereof, after deducting the aforementioned expenses, fees and costs, incurred by Florida Housing in connection with ; the Event of Default and/or the exercise of remedies with respect theretosame to be paid as such deficiencies arise and are ascertained each month.
C. Florida Housing may defer the enforcement of remedies (b) Additionally, upon the occurrence of an Event of Default (which shall include Tenant’s failure to cure the default within any applicable grace periods set forth in Section 36 above), Landlord shall have the right but not the obligation, upon giving ten (10) days’ notice in writing to Tenant, to declare this Lease and the term hereof terminated on the date fixed in such notice as if such date were the originally fixed expiration date of the term of this Lease (but Tenant shall retain liability as set forth in subsection (c) below), and Landlord shall then have the right to re-enter the Leased Premises and remove all persons, goods, fixtures, and chattels from the Leased Premises without liability for damages in accordance with all laws. In case of any such default, re-entry, expiration, termination and/or dispossession by summary proceedings or otherwise:
(i) the rent shall continue to accrue as if Tenant were in continuing possession of the Leased Premises, and the following shall become due and payable: such expenses as Landlord may incur for legal expenses, attorneys’ fees, brokerage and/or putting the Leased Premises in good order, or for preparing the same for re-letting;
(ii) the Landlord may re-let the Leased Premises or any part or parts thereof, either in the name of the Landlord 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 initial term, and may grant concessions or free rent on market terms and conditions; and
(iii) Tenant shall also pay Landlord, as it determines appropriatedamages, the deficiency between the rent hereby reserved and/or covenanted to be paid and the rent amount, if it determines that [any, of the Tax Credit Investor or] rents collected on account of the lease or leases of the Leased Premises for each month of the period which would otherwise have constituted the balance of the initial term. When computing the amounts which shall be due from Tenant, there shall be added to such deficiency the expenses which Landlord may incur in connection with re- letting, such as but not limited to legal expenses, attorneys’ fees, brokerage fees, and costs of keeping the Leased Premises in good order or for preparing the same for re-letting. Any such amounts due from Tenant shall be paid in monthly installments by Tenant on the rent day specified in this Lease, and any Lender is taking appropriate measures suit brought to correct collect the circumstances giving rise amount of the deficiency for any month shall not prejudice in any way the rights of Landlord to collect the Event deficiency for any subsequent month by a similar proceeding. The termination of Defaultthis Lease by Landlord in connection with default by Tenant hereunder shall not be construed as or constitute a release of Tenant’s liability for all terms, covenants and conditions on Tenant’s part to be complied with for what would have constituted the entire term of this Lease including, as the case may be, the then extension term or any extension term for which an option has been exercised, subject to mitigation as aforesaid.
D. Each (c) In the event of a breach or threatened breach by Tenant of any of the covenants or provisions of this Lease, Landlord shall have the right of injunction and the right to invoke any remedy allowed at law or in equity as if reentry, summary proceedings and other remedies were not herein provided for. Mention in this Agreement is distinct Lease of any particular remedy shall not preclude Landlord from all any other rights remedy in law or remedies under in equity.
(d) No receipt of rent by Landlord from Tenant after the valid termination of this AgreementLease shall reinstate, continue or extend the Recapture Mortgage, term of this Lease. No receipt of rent after the Assignment Instruments, the Extended Use Agreement or the Loan Documentscommencement of suit, or otherwise afforded after final judgment for possession of the Leased Premises shall reinstate, continue or extend the term, or affect the suit of said judgment. No receipt of rent by applicable law, and each Landlord shall be cumulative deemed received other than on account of the total rent due, and may be exercised concurrentlyapplied by Landlord against rents due in such manner as Landlord may determine, independentlywithout the receipt thereof constituting an accord or satisfaction.
(e) Any equipment, fixtures, goods or other property of Tenant, not removed by Tenant upon the termination of this Lease, or successivelyupon Tenant’s abandonment of the Leased Premises, or upon Tenant’s eviction from the Leased Premises, shall be considered as abandoned and Landlord shall have the right, without any notice to Tenant, to sell or otherwise dispose of the same, at the expense of Tenant, and shall not be accountable to Tenant for any part of the proceeds of such sale, if any.
(f) No remedy or election given by any provision in any orderthis Lease shall be deemed exclusive unless so indicated, but each shall, whenever possible, be cumulative with all other remedies in law or equity unless otherwise specifically provided.
Appears in 1 contract
Sources: Lease Agreement (Digital Cinema Destinations Corp.)
Remedies on Default. A. Florida Housing (a) Whenever any Event of Default ------------------- shall have the right to exercise occurred and be continuing, Landlord may take any one or more of the following remedies upon an Event of Defaultsteps:
(i1) temporarilyDeclare, wholly by written notice to Tenant, to be immediately due and payable, whereupon the same shall become immediately due and payable to the extent permitted by law all unpaid installments of Fixed Rent or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction Equipment Rent.
(2) Re-enter and take possession of the deficiency Facility (without terminating this Lease Agreement and without being liable for any prosecution or default damages therefor) and sublease the Facility for the account of Tenant, holding Tenant liable for the amount, if any, by which the Borrower;aggregate of the Fixed Rent payable by Tenant hereunder exceeds the aggregate of the rents and other amounts received from the sublessee under such sublease.
(ii3) ceaseTerminate the Lease Term and this Lease Agreement and, in whole without being liable for any prosecution or in partdamages therefor, making any further payments exclude Tenant from possession of the Facility and use its best efforts to lease the Facility to another Person for the account of Tenant, holding Tenant liable for the amount, if any, by which the aggregate of the Fixed Rent payable by Tenant hereunder exceeds the aggregate of the rents and other amounts received from such other Person under this Agreement;the new lease.
(iii4) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or Take any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under action at law or in equityequity which may appear to Landlord necessary or desirable to collect the payments then due or thereafter to become due hereunder, to secure possession of the Facility, and to enforce the obligations, agreements or covenants of Tenant under this Lease Agreement.
B. (b) In addition the event the Facility is subleased or leased to another Person pursuant to Section 7.2 (a) (2) or (3) hereof, Landlord may (but shall be under no obligation to) make such repairs or alterations in or to the remedies described in Section 10.2A above, Facility and the Borrower shall, upon demand by Florida Housing following an Event Equipment as it may deem necessary or desirable for the implementation of Default, (i) repay such sublease or lease and Tenant shall be liable and agrees to Florida Housing, which shall remit pay the costs of such funds repairs or alterations and the expenses incidental to the Treasuryeffecting of such sublease or lease, any amount of Exchange Program Funds previously disbursed together with interest thereon at the rate herein provided, notwithstanding that this Lease Agreement may have been terminated pursuant to the Borrower under the terms of this Agreement and (iiSection 7.2(a)(3) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect theretohereof.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Remedies on Default. A. Florida Housing If any of the Events of Default hereinabove specified shall occur, Landlord, at any time thereafter, shall have the right to and may exercise any of the following remedies upon an Event of Defaultrights and remedies:
(a) Landlord may, pursuant to written notice thereof to Tenant, immediately terminate this Agreement and, peaceably or pursuant to appropriate legal proceedings, re-enter, retake and resume possession of the Leased Property for Landlord's own account without liability for trespass (Tenant hereby waiving any right to notice or hearing prior to such taking of possession by Landlord) and, for Tenant's breach of and default under this Agreement, recover immediately from Tenant any and all sums and damages due or in existence at the time of such termination, including, without limitation, (i) temporarilyall Rent and other sums, wholly or partiallycharges, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default payments, costs and expenses agreed and/or required to be paid by the Borrower;
Tenant to Landlord hereunder prior to such termination, (ii) ceaseall costs and expenses of Landlord in connection with the recovery of possession of the Leased Property, including reasonable attorney's fees based upon services rendered at hourly rates and court costs, and (iii) all costs and expenses of Landlord in connection with any reletting or attempted reletting of the Leased Property or any part or parts thereof, including, without limitation, brokerage fees, advertising costs, reasonable attorney's fees based upon services rendered at hourly rates based upon service rendered at hourly rates and the cost of any alterations or repairs or tenant improvements which may be reasonably required to so relet the Leased Property, or any part or parts thereof.
(b) Landlord may, pursuant to any prior notice required by law, and without terminating this Agreement, peaceably or pursuant to appropriate legal proceedings, re-enter, retake and resume possession of the Leased Property for the account of Tenant, make such alterations of and repairs and improvements to the Leased Property as may be reasonably necessary in order to relet the same or any part or parts thereof and, directly or through a qualified management or operating company which may include an Affiliated Person of Landlord, operate and manage the Leased Property, and relet or attempt to relet the Leased Property or any part or parts thereof for such term or terms (which may be for a term or terms extending beyond the Term of this Agreement), at such rents and upon such other terms and provisions as Landlord, in whole its sole discretion, may deem advisable. If Landlord takes possession and control of the Leased Property and operates the same, Tenant shall, for so long as Landlord is actively operating the Leased Property, have no obligation to operate the Leased Property but agrees that Landlord, any contract manager or operator, or any new tenant or sublessee may, to the extent permitted by law, operate the Facility under Tenant's Permits, including its Medicaid and Medicare provider agreements, if any, until same are issued in partthe name of the Landlord or the new manager/operator or tenant or sublessee, making as applicable. If Landlord relets or attempts to relet the Leased Property, or obtains a contract manager or operator for the Leased Property, Landlord shall at its sole discretion determine the terms and provisions of any further payments new lease or sublease, or management or operating agreement, and whether or not a particular proposed manager or operator, or new tenant or sublessee, is acceptable to Landlord. Upon any such reletting, or the operation of the Leased Property by a contract manager or operator, all rents or incomes received by the Landlord from such reletting or otherwise from the operation of the Leased Property shall be applied, (i) first, to the payment of all costs and expenses of recovering possession of the Leased Property, (ii) second, to the payment of any costs and expenses of such reletting and or operation, including brokerage fees, advertising costs, reasonable attorney's fees based upon service rendered at hourly rates, a management fee of between five percent (5%) and ten percent (10%) of the gross revenues generated, and the cost of any alterations and repairs reasonably required for such reletting or operation of the Leased Property; (iii) third, to the payment of any indebtedness, other than Rent, due hereunder from Tenant to the Landlord, (iv) fourth, to the payment of all Rent and other sums due and unpaid hereunder, and (v) fifth, the residue, if any, shall be held by the Landlord and applied in payment of future Rent as the same may become due and payable hereunder. If the rents received from such reletting or net income from the operation of the Leased Property during any period shall be less than the Rents and Additional Charges required to be paid during that period by the Tenant hereunder, Tenant shall promptly pay any such deficiency to the Landlord and failing the prompt payment thereof by Tenant to Landlord, Landlord shall immediately be entitled to institute legal proceedings for the recovery and collection of the same. Such deficiency shall be calculated and paid at the time each payment of Minimum Rent, Percentage Rent or any other sum shall otherwise become due under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part , or, at the option of Landlord, at the end of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms Term of this Agreement;
(ix) exercise . Landlord shall, in addition, be immediately entitled to sue for and otherwise re▇▇▇er from Tenant any rights it may have under other damages occasioned by or resulting from any abandonment of the Recapture Mortgage (in the event Leased Property or other breach of a or default under this Agreement other than a default in the payment of Rent. No such re-entry, retaking or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure resumption of possession of the liens thereunder;Leased Property by the Landlord for the account of Tenant shall be construed as an election on the part of Landlord to terminate this Agreement unless a written notice of such intention shall be given to the Tenant or unless the termination of this Agreement be decreed by a court of competent jurisdiction. Notwithstanding any such re-entry and reletting or attempted reletting of the Leased Property or any part or parts thereof for the account of Tenant without termination, Landlord may at any time thereafter, upon written notice to Tenant, elect to terminate this Agreement or pursue any other remedy available to Landlord for Tenant's previous breach of or default under this Agreement.
(xc) Landlord may, without re-entering, retaking or resuming possession of the Leased Property, sue for all Rent and all other su▇▇, charges, payments, costs and expenses due from Tenant to Landlord hereunder (discounted to present value) either: (i) as they become due under this Agreement, taking into account that Tenant's right and option to pay the Rent hereunder on a monthly basis in any particular Fiscal Year is conditioned upon the absence of a Default on Tenant's part in the performance of its obligations under this Agreement, or (ii) at Landlord's option, accelerate the maturity and due date of the whole or any part of the Rent for the entire then-remaining unexpired balance of the Term of this Agreement, as well as all other sums, charges, payments, costs and expenses required to be paid by Tenant to Landlord hereunder, including, without limitation, damages for breach or default of Tenant's obligations hereunder in existence at the time of such acceleration, such that all sums due and payable under this Agreement shall, following such acceleration, be treated as being and, in fact, be due and payable in advance as of the date of such acceleration. Landlord may then proceed to recover and collect all such unpaid Rent and other sums so sued for from Tenant by distress, levy, execution or otherwise. Regardless of which of the foregoing alternative remedies is chosen by Landlord under this subparagraph (c), Landlord shall not be required to relet the Leased Property nor exercise any other right granted to Landlord pursuant to this Agreement, nor, except as may be required by Applicable Laws, shall Landlord be under any obligation to minimize or mitigate Landlord's damages or Tenant's loss as a result of Tenant's breach of or default under this Agreement. Notwithstanding the foregoing, following such time as Landlord may obtain possession of the Leased Property, Landlord or its successor Landlord at the time of any Lease termination, shall continue to make the Leased Property available for lease, on an "as is" basis, and shall turn over the net proceeds thereof to Tenant to the extent actually received by Landlord in respect of any time period for which Landlord shall have received the full amount of Rent payable with respect thereto (albeit perhaps on a basis reasonably discounted for the time value of money or present-value basis).
(d) Landlord may, in addition to any other remedies provided herein, enter upon the Leased Property or any portion thereof and take possession of (i) any and all of Tenant's Personal Property, if any, (ii) Tenant's books and records necessary to operate the Leased Property, and (iii) all the bank accounts concerning, or established for, the Leased Property, without liability for trespass or conversion (Tenant hereby waiving any right to notice or hearing prior to such taking of possession by Landlord) and sell the same by public or private sale, after giving Tenant reasonable notice of the time and place of any public or private sale, at which sale Landlord or its assigns may purchase all or any portion of Tenant's Personal Property, if any, unless otherwise prevented by law. Unless otherwise provided by law and without intending to exclude any other manner of giving Tenant reasonable notice, the requirement of reasonable notice shall be met if such notice is given at least ten (10) days before the date of sale. The proceeds from any such disposition, less all expenses incurred in connection with the taking of possession, holding and selling of such Property (including reasonable attorneys' fees based upon services rendered at hourly rates) shall be credited against Rent which is due hereunder.
(e) Tenant acknowledges that one of the rights and remedies available to Landlord under applicable law is to apply to a court of competent jurisdiction for the appointment of a receiver to collect the rents, issues, profits and income of the Leased Property and to manage the operation of the Leased Property. Tenant hereby further acknowledges that may be available the revocation, suspension or material limitation of the certification of the Leased Property for provider status under Medicare or Medicaid (or successor programs) and/or the revocation, suspension or material limitation of the license of the Leased Property as an assisted living and dementia care facility under the Loan Documents; andlaws of the State will materially and irreparably impair the value of Landlord's investment in the Leased Property. Therefore, in any of such events, and in addition to any other right or remedy of Landlord under this Agreement, Landlord may petition any appropriate court for appointment of a receiver to manage the operation of the Leased Property (or any portion thereof as to which Tenant has suffered the revocation, suspension or material limitation of any license), to collect and disburse all rents, issues, profits and income generated thereby and to preserve or replace to the extent possible the operating license and provider certification of the Leased Property or to otherwise substitute the licensee or provider thereof. The receiver shall be entitled to a reasonable fee for his services as receiver. All such fees and other expenses of the receivership estate shall be payable as Additional Charges under this Agreement. Tenant hereby irrevocably stipulates to the appointment of a receiver under such circumstances and for such purposes and agrees not to contest such appointment.
(xif) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described hereinabove specified and enumerated, Landlord shall have and may exercise the right to invoke any other remedies allowed at law or in Section 10.2A aboveequity as if the remedies of re-entry, unlawful detainer proceedings and other remedies were not herein provided. Accordingly, the Borrower shallmention in this Agreement of any particular remedy shall not preclude Landlord from having or exercising any other remedy at law or in equity. Nothing herein contained shall be construed as precluding the Landlord from having or exercising such lawful remedies as may be and become necessary in order to preserve the Landlord's right or the interest of the Landlord in the Leased Property and in this Agreement, upon demand by Florida Housing following an Event even before the expiration of Defaultany notice periods provided for in this Agreement, (i) repay to Florida Housing, which shall remit if under the particular circumstances then existing the allowance of such funds to notice periods will prejudice or will endanger the Treasuryrights and estate of the Landlord in this Agreement and in the Leased Property. In addition, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms provision of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and feescontrary notwithstanding, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event no provision of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, shall delay or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, limit Landlord's right to seek injunctive relief or successively, in Tenant's obligation to comply with any ordersuch injunctive relief.
Appears in 1 contract
Remedies on Default. A. Florida Housing shall have Upon the right occurrence of one or more Events of Default, the Landlord may, at its option, and in addition to exercise any and without prejudice to all rights and remedies of the following remedies upon an Event Landlord available to it either by any other provision of Defaultthis Lease or by statute or the general law:
(ia) temporarily, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction be entitled to the full amount of the deficiency or default by current month’s and the Borrowernext three (3) months’ installments of Rent which shall immediately become due and payable and the Landlord may immediately distrain for the same, together with any arrears then unpaid;
(iib) ceasewithout notice or any form of legal process, forthwith re-enter upon and take possession of the Leased Premises or any part thereof in the name of the whole and re-let the Leased Premises or any part thereof on behalf of the Tenant or otherwise as the Landlord sees fit and remove and sell the Tenant’s merchandise, stock in parttrade, making goods, chattels and trade fixtures therefrom, any further payments rule of law or equity to the contrary notwithstanding; LANDLORD INITIAL TENANT INITIAL
(c) seize and sell such goods, chattels and equipment of the Tenant as are in the Leased Premises and may apply the proceeds thereof to all Rent to which the Landlord is then entitled under this AgreementLease. Any such sale may be effected by public auction or otherwise, and either in bulk or by individual item, all as the Landlord in its sole discretion may decide;
(iiid) terminate this Agreement;Lease by leaving upon the Leased Premises ten (10) days prior written notice of the termination, and termination shall be without prejudice to the Landlord’s right to damages; it being agreed that the Tenant shall pay to the Landlord as damages the loss of income of the Landlord to be derived from the Leased Premises for the unexpired portion of the Term had it not been terminated, provided that the Landlord shall not be entitled in any event to receive any damages greater than those damages the Landlord would be entitled to receive at law; or
(ive) disallow all re-enter into and upon the Leased Premises or any part thereof in the name of the cost whole and repossess and enjoy the same as of the activity or action not in compliance;
(v) require that the DeveloperLandlord’s former estate, the Manager, the Contractor or any other party providing services anything herein contained to the Borrower be replaced;
(vi) remove contrary notwithstanding; and the [General Partner] [Member] Tenant shall pay to the Landlord forthwith upon demand all expenses of the Borrower Landlord in reentering, terminating, re-letting, collecting sums due or payable by the Tenant or realizing upon assets seized including tenant inducements, leasing commissions, legal fees on a solicitor and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon client basis and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms all disbursements and the remaining terms expense of this Agreement;
(ix) exercise any rights it may have under keeping the Recapture Mortgage (Leased Premises in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable lawgood order, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any orderpreparing the same for re-letting.
Appears in 1 contract
Remedies on Default. A. Florida Housing Whenever any Event of Default shall have occurred, Bondholder, as assignee of Lessor, shall have the right right, at its sole option without any further demand or notice, to exercise take any one or any combination of the following remedies upon an Event remedial steps insofar as the same are available to secured parties under Article 9 of Defaultthe UCC in effect in the State from time to time and which are otherwise accorded to Bondholder, as assignee of Lessor, by applicable law:
(ia) temporarilyby notice to Lessor and Lessee, wholly or partiallydeclare the entire unpaid principal amount of the Lease and the Bond then outstanding, suspend making payments of Exchange Program Funds all interest accrued and unpaid thereon and all amounts payable under this Agreement pending correction to be forthwith due and payable, whereupon the Lease, all such accrued interest and all such amounts shall become and be forthwith due and payable, without presentment, notice of the deficiency dishonor, protest or default further notice of any kind, all of which are hereby expressly waived by the BorrowerLessee;
(iib) ceasetake possession of the Project wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, sublease or make other disposition of the Project for use over a term in whole a commercially reasonable manner, all for the account of Bondholder, provided that Lessee shall remain directly liable for the deficiency, if any, between the rent or in partother amounts paid by a lessee or sublessee of the Project pursuant to such lease or sublease during the same period of time, making any further payments under this Agreementafter deducting all costs and expenses, including reasonable attorneys' fees and expenses, incurred with respect to the recovery, repair and storage of the Project during such period of time;
(c) take possession of the Project wherever situated, without any court order or other process of law and without liability for entering the premises, and sell the Project in a commercially reasonable manner. All proceeds from such sale shall be applied in the following manner: FIRST, to pay all proper and reasonable costs and expenses associated with the recovery, repair, storage and sale of the Project, including reasonable attorneys' fees and expenses; SECOND, to pay (i) Bondholder the amount of all unpaid Lease Payments or other obligations (whether direct or indirect owed by Lessee to Bondholder), if any, which are then due and owing, together with interest and late charges thereon, (ii) Bondholder the then applicable Prepayment Amount (taking into account the payment of past-due Lease Payments as aforesaid), plus a pro rata allocation of interest, at the rate utilized to calculate the Lease Payments, from the next preceding due date of a Lease Payment until the date of payment by the buyer, and (iii) terminate this Agreementany other amounts due hereunder, including indemnity payments, taxes, charges, reimbursement of any advances and other amounts payable to Bondholder or Lessor hereunder; and THIRD, to pay the remainder of the sale proceeds, purchase moneys or other amounts paid by a buyer of the Project to Lessee;
(ivd) disallow exercise all or part of rights and remedies under the cost of Mortgage and the activity or action not in complianceAssignment;
(ve) require that the Developer, the Manager, the Contractor proceed by appropriate court action to enforce specific performance by Lessor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] Lessee of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment applicable covenants of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or to recover for the Loan Documents) and the Assignment Instrumentsbreach thereof, including but not limited the payment of all amounts due from Lessee. Lessee shall pay or repay to foreclosure Bondholder or Lessor all costs of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documentssuch action or court action, including, without limitation, reasonable attorneys' fees; and
(xif) exercise any other rights and remedies that may be available under take whatever action at law or in equity.
B. In addition equity that may appear necessary or desirable to enforce its rights with respect to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) Project. Lessee shall pay or repay to Florida HousingBondholder or Lessor all costs of such action or court action, which including, without limitation, reasonable attorneys' fees. Notwithstanding any other remedy exercised hereunder, Lessee shall remit such funds remain obligated to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to Bondholder any unpaid portion of the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect theretoPrepayment Amount.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.
Appears in 1 contract
Remedies on Default. A. Florida Housing Whenever any Event of Default shall have occurred and be continuing, Lender, as assignee of Issuer, shall have the right right, at its sole option without any further demand or notice, to exercise take any one or any combination of the following remedies upon an Event remedial steps to the extent that the same are available to secured parties under Article 9 of Defaultthe UCC in effect in the State from time to time and which are otherwise accorded to Lender, as assignee of Issuer, by applicable law:
(ia) temporarilyby notice to Issuer and Borrower, wholly or partiallydeclare the entire unpaid principal amount of the Loan then outstanding, suspend making payments of Exchange Program Funds all interest accrued and unpaid thereon and all amounts payable under this Agreement pending correction to be forthwith due and payable, whereupon the Loan, all such accrued interest and all such amounts shall become and be forthwith due and payable, without presentment, notice of the deficiency dishonor, protest or default further notice of any kind, all of which are hereby expressly waived by the Borrower;
(iib) ceaseproceed by appropriate court action to enforce specific performance by Issuer or Borrower of the applicable covenants of this Agreement or to recover for the breach thereof, in whole including the payment of all amounts due from Borrower. Borrower shall pay or in partrepay to Lender or Issuer all costs of such action or court action, making any further payments under this Agreementincluding, without limitation, reasonable attorneys' fees;
(iiic) terminate this Agreement;
(iv) disallow all with or part without notice to Borrower or Issuer submit one or more drafts under the Letter of the cost Credit, any Substitute Letter of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor Credit or any other party providing services letter of credit provided pursuant to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide Section 7.07 hereof for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documentsamounts due hereunder; and
(xid) exercise any other rights and remedies that may be available under take whatever action at law or in equity.
B. In addition equity may appear necessary or desirable to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other enforce its rights or remedies under this Agreement. Borrower shall pay or repay to Lender or Issuer all costs of such action or court action, including, without limitation, reasonable attorneys' fees. Notwithstanding any other remedy exercised hereunder, Borrower shall remain obligated to pay to Lender any unpaid portion of the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any orderPrepayment Amount.
Appears in 1 contract
Sources: Loan Agreement (Asahi America Inc)
Remedies on Default. A. Florida Housing Landlord shall have the following remedies if Tenant commits a default. These remedies are not exclusive; they are cumulative in addition to any remedies now or later allowed by law. These remedies are subject to the provisions of the Bankruptcy Code of the United States and any other law in effect at the time of default to the extent required by such law. Landlord can continue this Lease in full force and effect in such case, the Lease will continue in effect so long as Landlord does not terminate Tenant's right to possession, and Landlord shall have the right to exercise collect rent when due. During the period Tenant is in default, Landlord can enter the Premises and relet them, or any part of them, to third parties for Tenant's account. Tenant shall be liable immediately to Landlord for all costs Landlord incurs in reletting the Premises including, without limitation, broker's commissions, expenses of remodeling the Premises required by the reletting, and like costs. Reletting can be for a period shorter or longer than the remaining term of this Lease. Tenant shall pay to Landlord the rent due under this Lease on the date the rent is due, less the rent Landlord receives from any reletting. No act by Landlord allowed by this Paragraph shall terminate this Lease unless Landlord notifies tenant that landlord elects to terminate this lease. After Tenant's default and for as long as Landlord does nor terminate Tenant's right to possession of the following remedies upon an Event of Default:
(i) temporarilyPremises if Tenant obtains Landlord's consent Tenant shall have the right to assign or sublet its interest in this lease, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction but Tenant shall not be released from liability. Landlord can terminate Tenant's right to possession of the deficiency or default premises at any time. No act by the Borrower;
(ii) cease, in whole or in part, making any further payments under this Agreement;
(iii) Landlord other than giving notice to Tenant shall terminate this Agreement;
(iv) disallow all Lease. Acts of maintenance, efforts to relet the Premises or part of the cost of the activity or action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] receiver on Landlord's initiative to protect Landlord's interest under this lease shall not constitute a termination of Tenant's right to possession. On termination, Landlord has the organizational documents right to recover from Tenant: The worth, at the time of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon award, of the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and unpaid rent that had been earned at the remaining terms time of termination of this Agreement;
lease: The worth, at the time of the award of the amount by which the unpaid rent that would have been earned after the date of termination of this Lease until the time of the award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided: The worth, at the rime of the award, of the amount by which the unpaid rent for the balance of the rent after the time of the award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided. Any other amount, and court costs, necessary to compensate Landlord for all detriment proximately caused by Tenant's default. "The worth, at the time of the award", as used in Subdivisions (ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan DocumentsI) and (2) of this subparagraph @) is to be computed by allowing interest at the Assignment Instrumentsmaximum rate allowed by applicable usury law at that rime, including but or if there is not limited to foreclosure such maximum, at eighteen percent (18%) per annum. The worth at the time of the liens thereunder;
award", as referred to in Subdivision (x3) exercise any other rights and remedies that may of subparagraph (b) is to be available under computed by discounting the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under law or in equity.
B. In addition to amount at the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of an Event of Default for such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any order.discount
Appears in 1 contract
Sources: Lease Agreement (FNB Bancorp/Ca/)
Remedies on Default. A. Florida Housing shall have Whenever any Event of Default has occurred and is continuing hereunder, the right to exercise Lessor may, without any further demand or notice, take one or any combination of the following remedies upon remedial steps:
(a) by appropriate court action, enforce the pledge set forth in Section 2 of the Ordinance and Section 11 of this Lease so that during the remaining Lease Term, there is levied on all the taxable property in the Lessee, in addition to all other taxes, without limitation as to the rate or amount, a direct tax annually in an Event of Default:amount sufficient to pay the Lease Rental Payments as and when due;
(b) take legal title to and sell or re-lease the Project or any portion thereof; and
(c) take whatever action at law or in equity may appear necessary or desirable
(i) temporarily, wholly or partially, suspend making payments of Exchange Program Funds to enforce its rights in and to the Project under this Agreement pending correction Lease, including, without limitation, the right to take possession of the deficiency Project and the right to sell, re-lease, or default by otherwise dispose of the Borrower;
Project in accordance with applicable law, and/or (ii) cease, in whole or in part, making any further payments to enforce performance by the Lessee of the applicable covenants and agreements of the Lessee under this Agreement;
(iii) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or action not in compliance;
(v) require that the DeveloperLease, the Managersubject, the Contractor or any other party providing services however, to the Borrower limitations thereon contained in this Lease, and to recover damages for the breach thereof. No remedy herein conferred upon or reserved to the Lessor is intended to be replaced;
(vi) remove the [General Partner] [Member] of the Borrower exclusive, and require the Borrower every such remedy shall be cumulative and shall be in addition to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon every other remedy given hereunder and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement every remedy now or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under hereafter existing at law or in equity.
B. In addition . No delay or omission by the Lessor to exercise any right or power accruing upon any Default shall impair any such right or power, and any such right and power may be exercised by the Lessor from time to time and as often as may be deemed expedient. If any agreement contained herein should be breached by either party and thereafter waived by the other party, such waiver shall be limited to the remedies described in Section 10.2A above, the Borrower shall, upon demand particular breach so waived and shall not be deemed to waive any other breach hereunder. Following a final adjudication by Florida Housing following an Event a court of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon the occurrence of competent jurisdiction that an Event of Default has occurred hereunder, the Lessee shall remain liable for all covenants and obligations under this Lease and for all legal fees and other costs and expenses, including any court costs awarded by such period as it determines appropriatecourt of competent jurisdiction, if it determines that [incurred by the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise Lessor with respect to the Event enforcement of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or any of the remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any orderLease.
Appears in 1 contract
Sources: Lease Agreement
Remedies on Default. A. Florida Housing Whenever any Event of Lease Default shall have occurred and be continuing beyond any applicable cure period, the right Trustee (subject to exercise any its rights and protections under the Indenture) may, or shall at the request of the following remedies owners of a majority in aggregate principal amount of the Certificates then Outstanding and upon an Event indemnification as to
(a) terminate the Lease Term and give notice to the City to vacate and surrender possession of Defaultthe Leased Property, which vacation and surrender the City agrees to complete within sixty (60) days from the date of such notice; provided, in the event the City does not vacate and surrender possession on the termination date, the provisions of Section 6.5 hereof shall apply;
(b) lease or sublease the Leased Property or sell or assign any interest the Trustee has in the Leased Property, including the Trustee’s leasehold interest in the Leased Property;
(c) recover from the City:
(i) temporarilythe portion of Base Rentals and Additional Rentals, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default for which a specific Appropriation has been effected by the Borrower;City for such purpose, which would otherwise have been payable hereunder, during any period in which the City continues to occupy, use or possess the Leased Property; and
(ii) ceaseBase Rentals and Additional Rentals, for which a specific Appropriation has been effected by the City for such purpose, which would otherwise have been payable by the City hereunder during the remainder, after the City vacates and surrenders possession of the Leased Property, of the Fiscal Year in whole or in part, making any further payments under this Agreement;which such Event of Lease Default occurs.
(iiid) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or take whatever action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under at law or in equity.
B. In addition equity may appear necessary or desirable to enforce its rights in and to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower Leased Property under the terms of Site Lease, this Agreement Lease and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon Indenture. Upon the occurrence of an Event of Default for Nonappropriation, the Trustee shall be entitled to recover from the City the amounts set forth in Section 13.2(c)(i) hereof if the City continues to occupy the Leased Property after December 31 of the Fiscal Year in which such period Event of Nonappropriation occurs. The Trustee shall also be entitled, upon any Event of Lease Default, to any moneys in any funds or accounts created under the Indenture (except the Rebate Fund or any defeasance escrow accounts). Notwithstanding the foregoing provisions or any other provisions in this Lease or the Indenture, so long as it determines appropriatethe Initial Purchaser is the sole Owner of the Certificates, if it determines that [the Tax Credit Investor or] Trustee shall not take any Lender is remedial action under this Lease or the Indenture, including without limitation this Section 13.2, without the prior written consent and direction of the Initial Purchaser. Before taking appropriate measures to correct any such action as directed by the circumstances giving rise Initial Purchaser, the Trustee shall be entitled to the Event of Default.
D. Each right and remedy indemnification provided in this Agreement is distinct from all other rights or remedies under this Agreement, Section 8.02(m) of the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, in any orderIndenture.
Appears in 1 contract
Sources: Lease Purchase Agreement
Remedies on Default. A. Florida Housing Whenever any Event of Lease Default shall have happened and be continuing beyond any applicable cure period, the right to exercise any Trustee may, or shall at the request of the following remedies owners of a majority in aggregate principal amount of the Certificates then Outstanding and upon an Event indemnification as to costs and expenses as provided in the Indenture,
(a) terminate the Lease Term and give notice to the Town to vacate and surrender possession of Defaultthe Leased Property, which vacation and surrender the Town agrees to complete within sixty (60) days from the date of such notice; provided, in the event the Town does not vacate and surrender possession on the termination date, the provisions of Section 6.5 hereof shall apply;
(b) lease or sublease the Leased Property or sell or assign any interest the Trustee has in the Leased Property, including the Trustee’s leasehold interest in the Leased Property;
(c) recover from the Town:
(i) temporarilythe portion of Base Rentals and Additional Rentals, wholly or partially, suspend making payments of Exchange Program Funds under this Agreement pending correction of the deficiency or default for which a specific Appropriation has been effected by the Borrower;Town for such purpose, which would otherwise have been payable hereunder, during any period in which the Town continues to occupy, use or possess the Leased Property; and
(ii) ceaseBase Rentals and Additional Rentals, for which a specific Appropriation has been effected by the Town for such purpose, which would otherwise have been payable by the Town hereunder during the remainder, after the Town vacates and surrenders possession of the Leased Property, of the Fiscal Year in whole or in part, making any further payments under this Agreement;which such Event of Lease Default occurs.
(iiid) terminate this Agreement;
(iv) disallow all or part of the cost of the activity or take whatever action not in compliance;
(v) require that the Developer, the Manager, the Contractor or any other party providing services to the Borrower be replaced;
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under at law or in equity.
B. In addition equity may appear necessary or desirable to enforce its rights in and to the remedies described in Section 10.2A above, the Borrower shall, upon demand by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower Leased Property under the terms of Site Lease, this Agreement Lease and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies upon Indenture. Upon the occurrence of an Event of Default for Nonappropriation, the Trustee shall be entitled to recover from the Town the amounts set forth in Section 13.2(c)(i) hereof if the Town continues to occupy the Leased Property after December 31 of the Fiscal Year in which such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures to correct the circumstances giving rise to the Event of Nonappropriation occurs. The Trustee shall also be entitled, upon any Event of Lease Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable law, and each shall be cumulative and may be exercised concurrently, independently, or successively, to any moneys in any orderfunds or accounts created under the Indenture (except the Rebate Fund or any defeasance escrow accounts).
Appears in 1 contract
Sources: Lease Purchase Agreement
Remedies on Default. A. Florida Housing (a) Whenever any Event of Default shall have occurred and be continuing under an Agreement or Agreements, Lessor shall have the right right, at its sole option without any further demand or prior notice to exercise Lessee, to take any one or any combination of the following remedies upon an Event remedial steps except insofar as the same are not available to secured parties under Article 9 of Defaultthe UCC in effect in the State from time to time or are otherwise prohibited by applicable law:
(i) temporarilyBy written notice to ▇▇▇▇▇▇, wholly or partiallydeclare immediately due and payable an amount equal to all Lease Payments and Additional Lease Payments then due and unpaid, suspend making payments of Exchange Program Funds all interest accrued thereon and unpaid, all other amounts then due under this Master Lease Agreement pending correction and unpaid, and the entire unpaid principal portion of all remaining Lease Payments due during the deficiency Term, whereupon the same shall become immediately due and payable without any further action or default by the Borrowernotice;
(ii) cease, Require Lessee to assemble the Collateral listed in whole such Agreement at a place reasonably convenient to both Lessor and Lessee and at a reasonable time; and use or in part, making any further payments under this Agreementoperate the Collateral for the purpose of preserving it;
(iii) terminate this With or without terminating any affected Agreement, take possession of the Collateral listed in such Agreement(s) wherever situated, without any court order or other process of law and without liability for entering the premises, and lease, or make other disposition of such Collateral for use over a term in a commercially reasonable manner, all for the account of Lessor or Lessee; provided that Lessee shall remain directly liable for the deficiency, if any, between the rent or other amounts paid by a lessee of such Collateral pursuant to such lease or sublease during the same period of time, after deducting all costs and expenses, including reasonable attorney’s fees and expenses, incurred with respect to the recovery, repair and storage of such Collateral during such period of time, and the sum of the Prepayment Amount plus Additional Lease Payments and all other amounts due hereunder;
(iv) disallow all With or part without terminating any affected Agreement, take possession of the cost Collateral wherever situated listed in such Agreement(s), without any court order or other process of law and without liability for entering the premises, and sell any or all of such Collateral at a public or private sale, or otherwise dispose of, hold, use, operate, lease to others or keep idle such Collateral, with 10 days’ notice to Lessee, all free and clear of any rights of Lessee; provided that any and all such actions be taken in a commercially reasonable manner. All proceeds from such sale to be applied in the following manner: FIRST, to pay all proper and reasonable costs and expenses associated with the recovery, repair, storage and sale of such Collateral, including reasonable attorneys’ fees and expenses; SECOND, to pay (i) Lessor the amount of all unpaid Lease Payments due under such Agreement(s), if any, which are then due and owing, together with interest and late charges thereon, (ii) Lessor the then applicable Prepayment Amount under such Agreement(s) (taking into account the payment of past due Lease Payments as aforesaid), plus a pro-rata allocation of interest, at the rate utilized to establish the interest component for the Lease Payment next due pursuant to the applicable Schedule, from the next preceding due date of a Lease Payment until the date of payment by the buyer, and (iii) Lessor any other amounts due thereunder, including indemnity payments, reimbursement of any advances, Additional Lease Payments due under such Agreement(s), and other amounts payable to Lessor hereunder; and THIRD, to pay the remainder of the activity sale proceeds, purchase moneys or action not in complianceother amounts paid by a buyer of such Equipment, to Lessee;
(v) require that Proceed by appropriate court action to enforce performance by Lessee of the Developerapplicable covenants of this Master Lease Agreement, the Managerapplicable Agreement(s) or to recover for the breach thereof, including the Contractor payment of all amounts due from Lessee, in which event Lessee shall pay or any other party providing services repay to the Borrower be replaced;Lessor all costs or such action or court action including without limitation, reasonable attorneys’ fees; and
(vi) remove the [General Partner] [Member] of the Borrower and require the Borrower to provide for an alternate entity, acceptable in advance by Florida Housing, to act in its stead, pending appointment of a replacement [general partner] [member] under the organizational documents of the Borrower;
(vii) draw upon and apply any escrows and/or reserve accounts in accordance with their terms;
(viii) call upon the guaranty provided by Borrower in Section 6.7 hereof in accordance with its terms and the remaining terms of this Agreement;
(ix) exercise any rights it may have under the Recapture Mortgage (in the event of a default under this Agreement or the Loan Documents) and the Assignment Instruments, including but not limited to foreclosure of the liens thereunder;
(x) exercise any other rights and remedies that may be available under the Loan Documents; and
(xi) exercise any other rights and remedies that may be available under Take whatever action at law or in equityequity may appear necessary or desirable to enforce its rights with respect to the Collateral under such Agreement(s), in which event Lessee shall pay or repay to Lessor all costs of such action or court action, including, without limitation, reasonable attorneys’ fees.
(b) Notwithstanding any other remedy exercised hereunder, ▇▇▇▇▇▇ shall remain obligated to pay to Lessor any unpaid portion of the Prepayment Amount due under such Agreement(s). To the extent permitted by applicable law, Lessee hereby waives any rights now or hereafter conferred by statute or otherwise which might require Lessor to use, sell, lease or otherwise dispose of any Collateral under such Agreement(s) in mitigation of Lessor’s damages or which might otherwise limit or modify any of Lessor’s rights hereunder.
B. In addition to (c) All of Lessee’s right, title and interest in any Collateral the remedies described in Section 10.2A above, the Borrower shall, upon demand possession of which is taken by Florida Housing following an Event of Default, (i) repay to Florida Housing, which shall remit such funds to the Treasury, any amount of Exchange Program Funds previously disbursed to the Borrower under the terms of this Agreement and (ii) pay to Florida Housing an amount equal to the costs and fees, including attorneys’ fees and costs, incurred by Florida Housing in connection with the Event of Default and/or the exercise of remedies with respect thereto.
C. Florida Housing may defer the enforcement of remedies Lessor upon the occurrence of an Event of Default for (including, without limitation, construction contracts, warranties, guaranties or completion assurances applicable to such period as it determines appropriate, if it determines that [the Tax Credit Investor or] any Lender is taking appropriate measures Collateral) shall pass to correct the circumstances giving rise to the Event of Default.
D. Each right and remedy provided in this Agreement is distinct from all other rights or remedies under this Agreement, the Recapture Mortgage, the Assignment Instruments, the Extended Use Agreement or the Loan Documents, or otherwise afforded by applicable lawLessor, and each Lessee’s rights in such Collateral shall be cumulative terminate immediately upon such repossession, subject however, to Lessee’s rights under Article XI to prepay and may be exercised concurrently, independently, or successively, in any orderterminate the Agreement.
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Sources: Master Lease Agreement