Rights Upon Default. If a Default by Tenant occurs, then at any time ------------------- thereafter prior to the curing thereof, with or without notice or demand, Landlord may exercise any and all rights and remedies available to Landlord under this Lease, at law or in equity, including without limitation, termination of this Lease and termination of Tenant's right to possession without terminating the Lease. If Tenant is in Default for nonpayment of Rent and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers to the Premises written notice of Landlord's intent to exercise its lockout rights, then Landlord shall be entitled to change or modify door locks on all entry doors of the Premises and Tenant shall not be entitled to a key to re-enter the Premises until all delinquent Rent is paid in full: provided, however, Landlord shall immediately thereafter post a notice on an entry door to the Premises, stating that Landlord has exercised such lockout rights. If Tenant vacates or abandons the Premises or any significant portion thereof. Landlord may permanently change the locks without notice to Tenant, and Tenant shall not be entitled to a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of a Default, Landlord may, without additional notice and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefrom, and Tenant hereby agrees to surrender possession of the Premises, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, and agrees to hold Landlord harmless from any such claims. If Landlord elects to terminate this Lease, it may treat the default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of (a) the cost of recovering, reletting, including, without limitation, the cost of leasing commissions attributable to the unexpired portion of the Term of this Lease, and remodeling the Premises, (b) all unpaid Rent and other amounts earned or due through such termination, including interest thereon at the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) of the balance of the Rent for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (d) any other sum of money and damages owed by Tenant to Landlord. If Landlord elects to terminate Tenant's right to possession of the Premises without terminating this Lease. Landlord may (but shall not be obligated to) rent the Premises or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, received by Landlord from such reletting, being the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall be paid by Tenant in monthly installments on the first day of each month of the Term. In no case shall Landlord be liable for failure to relet the Premises or to collect the rent due under such reletting, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be cumulative and not exclusive.
Appears in 2 contracts
Sources: Lease Agreement (Ticketmaster Online Citysearch Inc), Lease Agreement (Citysearch Inc)
Rights Upon Default. If a Default by Tenant occurs, then Landlord at any time ------------------- thereafter prior to the curing thereofthereafter, with or without notice or demand, Landlord may exercise waiving any and all other rights and remedies available to Landlord under this Leaseherein, at law or in equity, including without limitation, termination of may either terminate this Lease and termination of or terminate Tenant's right rights to possession without terminating the this Lease, whichever Landlord elects. If Tenant is in Default for nonpayment of Rent and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers to the Premises written notice of Landlord's intent to exercise its lockout rights, then Landlord shall be entitled to change or modify door locks on all entry doors of the Premises and Tenant shall not be entitled to a key to re-enter the Premises until all delinquent Rent is paid in full: provided, however, Landlord shall immediately thereafter post a notice on an entry door to the Premises, stating that Landlord has exercised such lockout rights. If Tenant vacates or abandons the Premises or any significant portion thereof. Landlord may permanently change the locks without notice to Tenant, and Tenant shall not be entitled to a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of a Defaulteither event, Landlord may, without additional notice and with or without court proceedings, re-enter reenter and repossess the Premises Premises, and remove all persons and property therefromtherefrom using such force as is necessary, and Tenant hereby agrees to surrender possession of the Premises, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, sequestration and agrees to indemnify and hold harmless Landlord harmless from any such claims. Unless Landlord specifically in writing terminates this Lease, the same shall be deemed to be a termination of Tenant's right to possession without a termination of this Lease. If Landlord elects to terminate this Lease, it may treat the default Default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of (ai) the cost of recovering, reletting, including, without limitation, the cost of leasing commissions attributable to the unexpired portion of the Term of this Leaserelenting, and remodeling the PremisesPremises to Building Standard condition, (bii) all unpaid Rent and other amounts earned or due through such termination, including interest thereon at the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) of the balance of the Rent for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (diii) any other sum of money and damages owed by Tenant remedies at law or in equity available to Landlord. If Landlord elects to terminate Tenant's right rights to possession of the Premises without terminating this the Lease. , Landlord may do any one or more of the following:
(but shall not a) recover from Tenant the costs of recovering, remodeling and (if applicable) rerenting the Premises;
(b) recover from Tenant all unpaid Rent and other amounts earned or due through such termination;
(c) recover from Tenant all Rent and other amounts as the same becomes due and owing pursuant to the terms hereof;
(d) accelerate and cause to become immediately due and payable all Rent and other amounts due and/or likely to be obligated todue hereunder and recover from Tenant the present value thereof; such present value to be based upon a six percent (6%) per year discount rate;
(e) rent the Premises or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and other conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, received by Landlord from such relettingrerenting, being the gross amount so received by Landlord less the costs of repossession, relettingrerenting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall be paid by Tenant in monthly installments on the first day days of each month of the Term. Tenant agrees that Landlord may file suit to recover any sums due under the terms hereof and that no recovery of any portion due Landlord shall be defense to any subsequent action brought for any amount not theretofore reduced to judgment in favor of Landlord. In no case shall Landlord be liable for failure required to relet relent the Premises or to collect the rent rental due under such reletting, rerenting and in no event shall Tenant be entitled to more than 50% of any excess rents received by landlord; and
(f) pursue any other remedies at law or in equity available to Landlord. If Landlord elects to terminate Tenant's rights to possession without terminating this Lease, Landlord shall have the right at any time thereafter to terminate this Lease, whereupon the foregoing provisions with respect to termination of this Lease will thereafter apply. All rights and remedies of Landlord shall be cumulative and not exclusiveexclusive of any remedies provided by law, and Landlord shall be entitled simultaneously to pursue multiple or alternative remedies, at any time to abandon pursuit of any remedy, and at any time to pursue additional remedies. All of the foregoing remedies may be exercised without grace, notice or demand of any kind, which Tenant hereby waives. Tenant agrees that all of the foregoing remedies provide just and reasonable compensation to the Landlord for a Default, and are a reasonable method of determining damages to Landlord which are unascertainable as of the date hereof. Tenant acknowledges and agrees that in connection with this Lease, Landlord has expended and will continue to expend sums of money for Tenant's lease inducements, (E.G., expenses, such as construction costs, allowances, and fees), for which Landlord has agreed to accept payments over all or a portion of the initial Term of the Lease. Notwithstanding its designation as Rent, Tenant acknowledges and agrees that the cost of such sums, plus interest at the rate of twelve percent (12%) per annum amortized over the initial Term of the Lease, constitute an obligation of Tenant separate and apart from the consideration for the Premises, and that upon a Default, the unamortized portion thereof shall become immediately due and owing; it being the intent of the parties that the foregoing constitutes a proper characterization of the components of Rent and do not constitute additional rent.
Appears in 1 contract
Rights Upon Default. If a Default by Tenant occursoccurs and Tenant fails to cure such Default within any applicable cure period set forth in Section 13.01, then at any time ------------------- thereafter prior to the curing thereofLandlord, with or without any further notice or demand, Landlord may exercise any and all rights and remedies available to Landlord under this Lease, at law or in equity, including without limitation, termination of this Lease and termination of Tenant's right to possession without terminating the Lease. If Tenant is in Default for nonpayment of Rent and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers to the Premises written notice of Landlord's intent to exercise its lockout rights, then Landlord shall be entitled to change or modify door locks on all entry doors of the Premises and Tenant shall not be entitled to a key to re-enter the Premises until all delinquent Rent is paid in full: ; provided, however, Landlord shall immediately thereafter post a notice on an entry door to the Premises, stating that Landlord has exercised such lockout rights. If Tenant vacates or abandons the Premises or any significant portion thereof. Landlord may permanently change the locks without notice to Tenant, and Tenant shall not be entitled to a key to re-enter the Premises. The two preceding sentences sentence shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue statute. In the event of a DefaultDefault by Tenant and Tenant fails to cure such Default within any applicable cure period set forth in Section 13.01, Landlord may, without additional notice and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefrom, and Tenant hereby agrees to surrender possession of the Premises, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, and agrees to hold Landlord harmless from any such claims. If Landlord elects to terminate this Lease, it may treat the default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of (a) the cost of recovering, reletting, including, without limitation, the cost of leasing commissions attributable to the unexpired portion of the Term of this Lease, and remodeling the Premises, (b) all unpaid Rent and other amounts earned or due through such termination, including interest thereon at the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) of the balance of the Rent for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (d) any other sum of money and damages owed by Tenant to Landlord. If Landlord elects to terminate Tenant's right to possession of the Premises without terminating this Lease. , Landlord may (but shall not be obligated to) rent the Premises or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, received by Landlord from such reletting, being the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall be paid by Tenant in monthly installments on the first day of each month of the Term. In no case such event, Landlord agrees to use reasonable business judgment in its attempts to re-lease the Premises. However, Landlord shall Landlord not be liable for failure to relet the Premises or to collect the rent due under such reletting, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be cumulative and not exclusive.
Appears in 1 contract
Rights Upon Default. Upon the occurrence and during the ------------------- continuance of any Event of Default:
(a) Lender may declare all the Obligations not otherwise due to be forthwith due and payable, (provided that, in the case of the occurrence of any Event of Default described in Sections 8.1(j) or (k), all the ------ --- Obligations shall forthwith become due and payable without such declaration) whereupon the unpaid amount of the Obligations (including any applicable prepayment fee) shall become immediately due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived.
(b) Notwithstanding the foregoing in Section 8.2(a) but subject to the provisions of Section 9.10, the effect of an event described in Section 8.1(a) as an occurrence of an Event of Default shall be after Lender gives notice of such payment Default to Borrower and Borrower shall not have paid such amount within three (3) days of such Notice. The effect as an Event of Default of any other event described in Section 8.1 may be waived by Lender in writing.
(c) In addition to all other rights provided herein or at law, Lender shall have all of the rights and remedies of a secured party under the UCC and all of the rights and remedies granted under each of the Loan Documents. At any time when an Event of Default has occurred and is continuing, Lender may enter any premises where the Collateral is located, take physical possession of the Collateral or any part thereof, and maintain such possession on Borrower' premises or remove any or all of the Collateral to such other place or places as Lender desires in its sole discretion. If Lender exercises its right to take possession of any Collateral upon the occurrence and during the continuance of any Event of Default, Borrower, upon Lender's demand, will assemble the Collateral and at Lender's option, make it available to Lender at Borrower' premises at which it is located or deliver it to such place or places as Lender directs. Borrower hereby waives to the full extent permitted by law all rights to notice and hearing prior to Lender's exercise of its rights to take possession of the Collateral without judicial process or to replevy, claim and deliver, attach or levy upon the Collateral ex parte. Lender -- ----- shall not be under any obligation to ▇▇▇▇▇▇▇▇ any assets in favor of Borrower or any other party or against or in payment of any or all of the Obligations.
(d) Lender may sell, lease or otherwise dispose of and deliver any or all of the Collateral at public or private sale, for cash, upon credit or otherwise, at such prices and upon such terms as Lender, in its sole discretion, deems advisable, all in accordance with the applicable provisions of the UCC including the standard of commercial reasonableness.
(e) The requirement of reasonable notice with respect to a Default disposition of the Collateral shall be met if such notice is mailed both by Tenant occursregular and certified mail, then postage prepaid to Borrower at the address as set forth herein at least ten days before the time of the event of which notice is being given. Subject to the provisions of any applicable Loan Document or law governing the enforcement of liens or security interests, Lender may be the purchaser at any time ------------------- thereafter prior public sale, and to the curing thereofextent permitted by applicable law, at any private sale, free from any right of redemption, which Borrower also waives.
(f) The Proceeds of any sale of any of the Collateral shall be applied first to all costs and expenses of sale, including attorneys' fees, and second to the payment (in whatever order Lender elects) of all of the Obligations. Lender will return any excess Proceeds to Borrower, subject to the claims of any other parties with an interest in the Collateral or without notice the Proceeds, and Borrower shall remain liable to Under for any deficiency. If any Collateral is sold or demandleased by Lender upon credit or for future payment or delivery, Landlord Lender shall not be liable for the failure of the purchaser to pay for such Collateral, and in such event Lender may resell or re-lease the same.
(g) Lender may exercise any and all rights and remedies available to Landlord under this Lease, other right or remedy it may have at law or in equity, including without limitation, termination equity with respect to the Obligations or the subject matter of this Lease and termination of Tenant's right to possession without terminating the Lease. If Tenant is in Default for nonpayment of Rent and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers to the Premises written notice of Landlord's intent to exercise its lockout rights, then Landlord shall be entitled to change or modify door locks on all entry doors of the Premises and Tenant shall not be entitled to a key to re-enter the Premises until all delinquent Rent is paid in full: provided, however, Landlord shall immediately thereafter post a notice on an entry door to the Premises, stating that Landlord has exercised such lockout rights. If Tenant vacates or abandons the Premises or any significant portion thereof. Landlord may permanently change the locks without notice to Tenant, and Tenant shall not be entitled to a key to re-enter the PremisesAgreement. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of a Default, Landlord may, without additional notice and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefrom, and Tenant hereby agrees to surrender possession of the Premises, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, and agrees to hold Landlord harmless from any such claims. If Landlord elects to terminate this Lease, it may treat the default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of (a) the cost of recovering, reletting, including, without limitation, the cost of leasing commissions attributable to the unexpired portion of the Term of this Lease, and remodeling the Premises, (b) all unpaid Rent and other amounts earned or due through such termination, including interest thereon at the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) of the balance of the Rent for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (d) any other sum of money and damages owed by Tenant to Landlord. If Landlord elects to terminate Tenant's right to possession of the Premises without terminating this Lease. Landlord may (but shall not be obligated to) rent the Premises or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, received by Landlord from such reletting, being the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall be paid by Tenant in monthly installments on the first day of each month of the Term. In no case shall Landlord be liable for failure to relet the Premises or to collect the rent due under such reletting, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be provided for herein are cumulative and not exclusiveexclusive of any other of such rights and remedies or any other rights or remedies provided by law.
Appears in 1 contract
Sources: Loan and Security Agreement (Environmental Group International LTD)
Rights Upon Default. If a Default by Tenant occursUpon the occurrence of an Event of Default, then Landlord may, at Landlord’s option, without any time ------------------- thereafter prior to the curing thereof, with or without notice or demanddemand whatsoever (any such notice and demand being expressly waived by Tenant) in addition to any other remedy or right given hereunder or by law or equity, do any one or more of the following: (a) enter and take possession of the Premises, after which Landlord may exercise relet the Premises on behalf of Tenant and receive the rent directly by reason of the reletting, and Tenant agrees to reimburse Landlord for any expenditures made in order to relet; (b) enter the Premises and all rights perform Tenant’s obligations and remedies available Tenant agrees to reimburse Landlord under for any expenditures made to satisfy Tenant’s obligations; (c) terminate this Leaselease by written notice and ▇▇▇ for damages; or (d) terminate the Tenant’s right of possession and ▇▇▇ for rent. Landlord may, at law subject to compliance with applicable law, enter and take possession of the Premises by self-help, by picking or changing locks if necessary, and may lock out Tenant or any other person who may be occupying the Premises, until the default is cured, without being liable for damages. Any personal property, inventory or equipment left in equitythe Premises shall be deemed abandoned. It is hereby expressly stipulated by Landlord and Tenant that any of the above listed actions, including including, without limitation, termination of this Lease and Lease, termination of Tenant's ’s right to possession without terminating the Lease. If Tenant is in Default for nonpayment of Rent possession, and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers to the Premises written notice of Landlord's intent to exercise its lockout rights, then Landlord shall be entitled to change or modify door locks on all entry doors of the Premises and Tenant shall not be entitled to a key to re-enter entry by Landlord, will not affect the Premises until all delinquent Rent is paid in full: provided, however, Landlord shall immediately thereafter post a notice on an entry door to obligations of Tenant for the Premises, stating that Landlord has exercised such lockout rights. If Tenant vacates or abandons the Premises or any significant portion thereof. Landlord may permanently change the locks without notice to Tenant, and Tenant shall not be entitled to a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions unexpired term of Section 93.002 of the Texas Property Code or any successor statue In the event of a Default, Landlord may, without additional notice and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefrom, and Tenant hereby agrees to surrender possession of the Premises, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, and agrees to hold Landlord harmless from any such claims. If Landlord elects to terminate this Lease, it may treat including the default obligations to pay unaccrued Monthly Rent and Other Charges (as an entire breach of hereinafter defined) provided in this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of (a) the cost of recovering, reletting, including, without limitation, the cost of leasing commissions attributable to the unexpired remaining portion of the Term of this the Lease. Exercise by Landlord of any one or more remedies hereunder granted or otherwise available shall not be deemed to be an acceptance of surrender of the Premises by Tenant, whether by agreement or by operation of law. It is understood that such surrender can be effected only by the written agreement of Landlord and Tenant or by order of a court having jurisdiction. No such alteration of security devices and no removal or other exercise of dominion by Landlord over the property of Tenant or others at the Premises shall be deemed unauthorized or constitute a conversion. Tenant hereby consents, after any Event of Default, to the exercise of dominion over Tenant’s property within the Premises. All claims for damages by reason of such re-entry and/or repossession and/or alteration of locks or other security devices are hereby waived, as are all claims for damages by reason of any distress warrant, forcible detainer proceedings, sequestration proceedings or other legal process. Tenant agrees that any re-entry by Landlord may be pursuant to a judgment obtained in forcible detainer proceedings or other legal proceedings or pursuant to a statute authorizing the same, as Landlord may elect, and remodeling Landlord shall not be liable in trespass or otherwise except as otherwise provided by applicable law. In the event that Landlord alters locks or other security devices at the Premises, (b) without terminating the Lease, or Tenant’s right to possession, Landlord need not give the Tenant new keys to the Premises until Tenant has cured all unpaid defaults hereunder, unless otherwise required by applicable law. Furthermore, in the event that Landlord elects to repossess the Premises without terminating the Lease, Tenant shall be liable for and shall pay to Landlord at ▇▇▇▇▇▇, ▇▇▇▇▇▇ County, Texas, all Monthly Rent and other amounts earned or due through Other Charges accrued to the date of such termination, including interest thereon at the rate specified in Section 13.04 hereofrepossession, plus (c) the present value (discounted at the rate of 8% per annum) of the balance of the Monthly Rent for and Other Charges required to be paid by Tenant to Landlord during the remainder of the Term less until the present value (discounted at the same rate) date of Expiration of the fair market rental value of the Premises for said period and (d) Term, minus any other sum of money and damages owed by Tenant to Landlord. If Landlord elects to terminate Tenant's right to possession of the Premises without terminating this Lease. Landlord may (but shall not be obligated to) rent the Premises or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, sums thereafter received by Landlord from such reletting, being through reletting the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other Premises during said period (after deducting expenses incurred by Landlord). Such sum or sums shall be paid Actions to collect amounts due by Tenant as provided in monthly installments this paragraph may be brought from time to time by Landlord during the aforesaid period, on one or more occasions, without the first day necessity of each month Landlord’s waiting until expiration of the Term. In no case shall Landlord be liable for failure to relet the Premises or to collect the rent due under such reletting, Term and in no event shall Tenant be entitled to more than 50% any excess of any excess rents received Rent obtained by reletting over and above the Rent provided for in this Lease. In the event that Landlord elects to terminate this Lease by reason of an Event of Default, then notwithstanding such termination, Tenant shall be liable for and shall pay to the Landlord, at ▇▇▇▇▇▇, ▇▇▇▇▇▇ County, Texas, the sum of all Monthly Rent and other indebtedness accrued to the date of such termination, plus, as damages, an amount equal to the total of the Monthly Rent and Other Charges (as hereinafter defined) provided in this Lease for the remaining portion of the Term of the Lease (had such term not been terminated by Landlord prior to the date of expiration), less the reasonable rental value of the Premises for such period, such amount to be discounted to present value at the rate of six percent (6%) per annum. All Landlord may relet the whole or any portion of the Premises for any period, to any tenant and for any use and purpose without being deemed to have terminated this Lease or accepted a surrender hereof. ANY RELETTING SHALL BE UPON SUCH TERMS AS LANDLORD DEEMS ECONOMICALLY ADVISABLE IN ITS SOLE DISCRETION AND, IN MAKING SUCH RELETTING, LANDLORD SHALL BE PERMITTED TO OFFER TERMS AND CONCESSIONS REQUIRED BY THE NEW TENANT WITHOUT DIMINISHING TENANT’S LIABILITY HEREUNDER OR BEING DEEMED TO HAVE FAILED TO MITIGATE DAMAGES. NOTHING HEREIN CONTAINED SHALL REQUIRE LANDLORD TO OFFER THE PREMISES IN PREFERENCE TO OR AT THE SAME TIME AS UNLEASED SPACE IN THE PROJECT, AND LANDLORD MAY USE GREATER EFFORTS TO LET SUCH UNLEASED SPACE IN PREFERENCE TO THE PREMISES WITHOUT DIMINISHING THE AMOUNT RECOVERABLE HEREUNDER OR BEING DEEMED TO HAVE FAILED TO MITIGATE DAMAGES. It is expressly agreed that in determining the “Monthly Rent and Other Charges” provided in this Lease there shall be added to the Monthly Rent, a sum equal to all of Tenant other payment obligations including payment of all Common Area Maintenance Charges, Taxes and Insurance Premiums. It is further agreed that Tenant shall compensate Landlord for all expenses reasonably incurred by Landlord in repossession, including, without limitation (i) any increase in insurance premiums caused by the vacancy of the Premises, (ii) all expenses incurred by Landlord in reletting, including, without limitation, repairs, remodeling, replacements, advertisements and brokerage fees, (iii) all concessions granted to a new tenant upon reletting, including, without limitation, renewal options, (iv) all losses incurred by Landlord as a direct or indirect result of Tenant’s default, including, without limitation, renewal options, and any reasonably quantifiable adverse effects related to the Third Party Tenant Leases and (v) a reasonable allowance for Landlord’s administrative efforts, salaries and overhead attributable directly or indirectly to Tenant’s default and Landlord’s pursuing the rights and remedies provided herein and under applicable law. Landlord may restrain or enjoin any breach or threatened breach of any covenant, duty or obligation of Tenant herein contained without the necessity of proving the inadequacy of any legal remedy or irreparable harm. The remedies of Landlord hereunder shall be deemed cumulative and not exclusiveexclusive of each other. If, on account of any breach or default by Tenant in its obligations hereunder, Landlord shall employ an attorney to present, enforce or defend any of Landlord’s rights or remedies hereunder, Tenant agrees to pay any reasonable attorney’s fees incurred by Landlord.
Appears in 1 contract
Sources: Lease Agreement (EVO Transportation & Energy Services, Inc.)
Rights Upon Default. If a an Act of Default by Tenant beyond any applicable notice and cure period occurs, then Landlord, at any time ------------------- thereafter prior to the curing thereof, with or of such Act of Default and without notice or demand, Landlord may exercise waiving any and all rights and remedies other right available to Landlord under this Leaseherein, at law or in equity, including without limitation, termination of may either (i) terminate this Lease and termination of or (ii) terminate Tenant's ’s right to possession and use without terminating the this Lease, whichever Landlord elects. If Tenant is in Default for nonpayment of Rent and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers to the Premises written notice of Landlord's intent to exercise its lockout rights, then Landlord shall be entitled to change or modify door locks on all entry doors of the Premises and Tenant shall not be entitled to a key to re-enter the Premises until all delinquent Rent is paid in full: provided, however, Landlord shall immediately thereafter post a notice on an entry door to the Premises, stating that Landlord has exercised such lockout rights. If Tenant vacates or abandons the Premises or any significant portion thereof. Landlord may permanently change the locks without notice to Tenant, and Tenant shall not be entitled to a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of a Defaulteither event, Landlord may, without additional notice and with or without court proceedings, re-enter reenter and repossess the Premises Premises, and remove all persons and property therefromtherefrom using such force as may be necessary, and Tenant hereby agrees to surrender possession of the Premises, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, sequestration and agrees to hold Landlord harmless from any such claims. In no event shall Landlord’s exercise of any one or more remedies hereunder granted or otherwise available to it be deemed to be an acceptance of surrender of the Premises by Tenant, whether by agreement or operation of law, it being understood that such surrender can be effected only by the written agreement of Landlord and Tenant. If Landlord elects to terminate this Lease, it may treat the default Act of Default as an entire breach of this Lease and Tenant immediately shall immediately become liable to Landlord for damages for the entire breach in an amount equal to the total of amount by which (aA) the cost of recovering, reletting, including, without limitation, Rent (being the cost of leasing commissions attributable to Base Rent set forth in Section 5 hereof plus the Operating Rent set forth in Section 6 hereof for any increase and estimated increase in Operating Expenses which would be payable by Tenant during the unexpired portion balance of the Term of this Lease, and remodeling the Premises, (b) all unpaid Rent and other amounts earned or payments due through such termination, including interest thereon at the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) of for the balance of the Rent for the remainder Term) is in excess of the Term less the present value (discounted at the same rateB) of the fair market rental value of the Premises for said period the balance of the Term as of the time of default, both discounted at the rate of ten percent (10%) per annum to the then present value, plus the cost of recovering, remodeling and (d) any other sum releasing the Premises, and all unpaid Rent due through the date of money and damages owed by Tenant to Landlordsuch termination. If Landlord elects to terminate Tenant's ’s right to possession of the Premises without terminating this Lease, Landlord shall have the right at any time thereafter to terminate this Lease, whereupon the foregoing provisions with respect to termination will thereafter apply. Landlord may (but shall not be obligated to) rent If an Act of Default occurs or in the case of any holding over or possession by Tenant of the Premises after the expiration or any part thereof termination of this Lease, Tenant shall reimburse Landlord on demand for the account of Tenant to any person or persons for such rent and for such terms and conditions as all costs incurred by Landlord deems appropriatein connection therewith including, but not limited to, reasonable attorneys’ fees, court costs, and related expenses plus interest thereon at the lesser of: (i) fifteen percent (15%) per annum, or (ii) the maximum rate of interest allowed by applicable law from the date such costs are paid by Landlord until Tenant shall be liable to reimburses Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, received by Landlord from such reletting, being the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall be paid by Tenant in monthly installments on the first day of each month of the Term. In no case shall Landlord be liable for failure to relet the Premises or to collect the rent due under such reletting, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be cumulative and not exclusivesame.
Appears in 1 contract
Rights Upon Default. If a Default by Tenant occursUpon the occurrence of any default under this Security Agreement, then at any time ------------------- thereafter prior to the curing thereof, with or without notice or demand, Landlord Lender shall have and may exercise any or all of the following rights:
(a) To declare the Loan, or any of them (notwithstanding any provision thereof), immediately due and payable without demand or notice of any kind and the same thereupon shall immediately become due and payable without demand or notice, and from and after the date of default the amount due on the Loan shall from and thereafter bear interest at the maximum rate of interest permitted from time to time under Florida law.
(b) To exercise from time to time any and all rights and remedies of a secured party under the Uniform Commercial Code and any and all rights and remedies available to Landlord it under this Leaseany other applicable law.
(c) To request the Borrower to assemble at its expense the Collateral and make it available to the Lender at a convenient place acceptable to the Lender and, at upon making of said request, the Borrower shall promptly comply with said request.
(d) To seize and take possession of the Collateral and dispose of same under the UCC and, in such case, if any notice is required under applicable law or in equity, including without limitation, termination the giving of this Lease and termination of Tenant's right to possession without terminating the Lease. If Tenant is in Default for nonpayment of Rent and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers written notice to the Premises written Borrower at its address set forth herein shall constitute reasonable notice of Landlord's intent to exercise its lockout rights, then Landlord shall be entitled to change or modify door locks on all entry doors of the Premises and Tenant shall not be entitled to a key to re-enter the Premises until all delinquent Rent is paid in full: Borrower provided, however, Landlord the Lender shall immediately thereafter post a not by virtue of this Security Agreement be obligated to give any such notice on an entry door to the Premises, stating that Landlord has exercised such lockout rightsBorrower. If Tenant vacates or abandons the Premises or any significant portion thereof. Landlord may permanently Borrower wishes to change its address at which said notice is to be given, the locks without burden shall be upon the Borrower to so notify the Lender in writing and unless and until said notice is given, all notices sent to the Borrower at the address set forth herein shall be effective and valid notice to Tenant, and Tenant shall not be entitled to a key to re-enter the PremisesBorrower. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of default, the Borrower expressly authorizes the Lender to enter upon all property owned by the Borrower for the purpose of taking into custody and seizing any and all of the Collateral. In the event of repossession of any or all of the Collateral, the Borrower authorizes the Lender to take into his possession any personal property found in or on the Collateral and to hold the same until claimed by the Borrower and in the event such personal property is not claimed within a Defaultreasonable time (not greater than ten (10) days) by the Borrower, Landlord maythe Lender may dispose of such other personal property in the same manner as the Collateral is disposed of and to apply the proceeds resulting therefrom to the Loan.
(e) To immediately offset against the Loan all other monies due or to become due the Borrower from the Lender, whether said monies are due or are to become due under this Security Agreement, or any other relationship whatsoever between the Borrower and the Lender. All proceeds resulting from the disposition of any of the Collateral or the exercise by the Lender of any of its rights under this Security Agreement shall be applied without additional notice any marshaling of assets (i) first to the expenses of retaking and without court proceedingspreparing the Collateral for sale including expenses of sale, re-enter (ii) next to other costs and repossess attorneys' fees incurred by the Premises and remove all persons and property therefromLender in exercising its rights under this Security Agreement, (iii) next to the payment of interest and/or principal due on the Loan, as the Lender may determine, and Tenant hereby agrees (iv) finally to surrender possession any other moneys due the Lender from the Borrower. Should any deficiency result after disposition of the Premises, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, and agrees to hold Landlord harmless from any such claims. If Landlord elects to terminate this Lease, it may treat the default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of (a) the cost of recovering, reletting, including, without limitationCollateral, the cost of leasing commissions attributable to obligors under the unexpired portion of the Term of this Lease, and remodeling the Premises, (b) all unpaid Rent and other amounts earned or due through such termination, including interest thereon at the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) of the balance of the Rent for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (d) any other sum of money and damages owed by Tenant to Landlord. If Landlord elects to terminate Tenant's right to possession of the Premises without terminating this Lease. Landlord may (but Loan shall not be obligated to) rent the Premises or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, received by Landlord from such reletting, being the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall be paid by Tenant in monthly installments on the first day of each month of the Term. In no case shall Landlord be remain liable for failure to relet the Premises or to collect the rent due under such reletting, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be cumulative and not exclusivedeficiency.
Appears in 1 contract
Sources: Revolving Line of Credit Loan and Security Agreement (Action Products International Inc)
Rights Upon Default. If a Upon the occurrence and continuation of any Event of Default by Tenant occursBrazos or any Assignee may in its discretion declare this Facilities Lease to be in default and do any one or more of the following:
(a) Terminate the lease of any or all Facility leased hereunder;
(b) Whether or not the lease of any Facility is terminated, then at take immediate possession of and remove any time ------------------- thereafter prior or all Store FF&E and other equipment or property of Brazos in the possession of Diamond Shamrock R & M, wherever situated, and for such purpose, enter upon any premises without liability to the curing thereofDiamond Shamrock R & M for so doing;
(c) Whether or not any action has been taken under (a) or (b) above, sell any Facility or Brazos' interest in any Acquired Facilities Lease (with or without the concurrence or request of Diamond Shamrock R & M);
(d) Hold, use, occupy, operate, remove, lease or keep idle any or all Facility as Brazos in its sole discretion may determine, without any duty to account to Diamond Shamrock R & M with respect to any such action or inaction or for any proceeds thereof; and
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by Brazos from time to time at Brazos' election, and nothing herein contained shall be deemed to require Brazos to await the date whereon this Facilities Lease or the term hereof would have expired by limitation had there been no such default by Diamond Shamrock R & M or no such termination or cancellation. The receipt of any payments under this Facilities Lease by Brazos with knowledge of any breach of this Facilities Lease by Diamond Shamrock R & M or of any default by Diamond Shamrock R & M in the performance of any of the terms, covenants or conditions of this Facilities Lease, shall not be deemed to be a waiver of any provision of this Facilities Lease. No receipt of moneys by Brazos from Diamond Shamrock R & M after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Lease Term or any Renewal Term, or affect any notice theretofore given to Diamond Shamrock R & M, or operate as a waiver of the right of Brazos to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of Brazos to recover possession of any Property by proper suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Facilities Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of the Facility, Brazos may demand, Landlord may exercise receive and collect any moneys payable hereunder, without in any manner affecting such notice, proceedings, suit, action, order, warrant or judgment; and any and all such moneys so collected shall be deemed to be payments on account for the use, operation and occupation of the Facility, or at the election of Brazos, on account of Diamond Shamrock R & M's liability hereunder. Acceptance of the keys to any Facility, or any similar act, by Brazos, or any agent or employee, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Facility unless Brazos shall consent thereto in writing. If, after an Event of Default Brazos repossesses any Facility, notwithstanding any termination of this Facilities Lease, Diamond Shamrock R & M shall be liable for and Brazos may recover from Diamond Shamrock R & M all Basic Rent accrued and any Additional Rent owing with respect to such Facility to the date of such repossession, all other amounts payable under this Facilities Lease, and all losses, damages and expenses (including, without limitation, reasonable attorneys' fees and expenses) sustained by Brazos by reason of such Event of Default and the exercise of Brazos' remedies with respect thereto. In addition, Brazos may sell Brazos' interest in any Facility upon any terms that Brazos deems satisfactory, free of any rights of Diamond Shamrock R & M or any person claiming through or under Diamond Shamrock R & M. In the event of such sale, in addition to the amounts payable under the first sentence of this paragraph, Brazos shall be entitled to recover from Diamond Shamrock R & M, as liquidated damages, and not as a penalty, an amount equal to the Acquisition Cost of any Facility so sold, minus the net proceeds of such sale (deducting from the gross proceeds of such sale any reasonable legal expenses, commissions, sales taxes or other costs or expenses associated with such sale) received by Brazos; provided however, if the proceeds of such sale are in excess of the amount payable to Brazos pursuant hereto, such excess shall be the property of Diamond Shamrock R & M. In lieu of such sale, in addition to the amounts payable under the first sentence of this paragraph, Brazos may cause Diamond Shamrock R & M to pay to Brazos, and Diamond Shamrock R & M shall pay to Brazos, as liquidated damages, and not as a penalty, an amount equal to the Acquisition Cost of any or all of the Facilities, and upon payment in full of all such amounts Brazos shall transfer all of Brazos' right, title and interest in and to the Facility to Diamond Shamrock R & M. -50- 58 To the extent deemed necessary or advisable by counsel for Brazos, Brazos shall have the right, and is hereby granted the power by Diamond Shamrock R & M, to sell all or any part of any Facility at public venue pursuant to power of sale in accordance with the laws of the State in which the Facility is located. Sales pursuant to this Section 13.02, by Brazos of any part of the Facility, may be by private or public sale, in such order or otherwise in such manner as Brazos may elect in its sole discretion. Brazos shall have, with respect to the Store FF&E, in addition to any other rights and remedies which may be available to it at law or in equity or pursuant to this Facilities Lease or any other contract or agreement, all rights and remedies of a secured party under any applicable version of the Uniform Commercial Code of the relevant jurisdictions relating to the Store FF&E, and it is expressly agreed that if Brazos should proceed to dispose of or utilize the Store FF&E, or any part thereof, in accordance with the provisions of said Uniform Commercial Code, ten (10) days' notice by Brazos to Diamond Shamrock R & M shall be deemed to be reasonable notice of any such provision requiring such notice. Any sale of Store FF&E by Brazos may be made on such terms as it may choose, without assuming any credit risk and without any obligation to advertise or give notice of any kind other than that necessary under applicable law. Brazos shall incur no liability as a result of the sale of the Store FF&E, or any part thereof, at any private or public sale. Diamond Shamrock R & M hereby waives, to the extent permitted by law, any claims against Brazos arising by reason of the fact that the price at which the Store FF&E may have been sold at such private sale was less than the price which may have been obtained at a public sale or was less than the aggregate account of the amounts due from Diamond Shamrock R & M to Brazos hereunder, even if Brazos accepts the first offer received and does not offer the Store FF&E to more than one possible purchaser. No remedy referred to in this Section 13.02 is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to Landlord under this Lease, Brazos at law or in equity, including without limitation, termination and the exercise in whole or in part by Brazos of this Lease and termination any one or more of Tenant's right to possession without terminating the Lease. If Tenant is in Default for nonpayment of Rent and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers to the Premises written notice of Landlord's intent to exercise its lockout rights, then Landlord shall be entitled to change or modify door locks on all entry doors of the Premises and Tenant such remedies shall not be entitled to a key to re-enter preclude the Premises until all delinquent Rent is paid in full: provided, however, Landlord shall immediately thereafter post a notice on an entry door to the Premises, stating that Landlord has exercised such lockout rights. If Tenant vacates simultaneous or abandons the Premises or any significant portion thereof. Landlord may permanently change the locks without notice to Tenant, and Tenant shall not be entitled to a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of a Default, Landlord may, without additional notice and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefrom, and Tenant hereby agrees to surrender possession of the Premises, waives any claim arising later exercise by reason thereof or by reason of issuance Brazos of any distress warrant or writ of sequestration, and agrees to hold Landlord harmless from any all such claimsother remedies. If Landlord elects to terminate this Lease, it may treat the default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of (a) the cost of recovering, reletting, including, without limitation, the cost of leasing commissions attributable to the unexpired portion of the Term of this Lease, and remodeling the Premises, (b) all unpaid Rent and other amounts earned or due through such termination, including interest thereon at the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) of the balance of the Rent for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (d) any other sum of money and damages owed No waiver by Tenant to Landlord. If Landlord elects to terminate Tenant's right to possession of the Premises without terminating this Lease. Landlord may (but shall not be obligated to) rent the Premises or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, received by Landlord from such reletting, being the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall be paid by Tenant in monthly installments on the first day of each month of the Term. In no case shall Landlord be liable for failure to relet the Premises or to collect the rent due under such reletting, and in no event shall Tenant be entitled to more than 50% Brazos of any excess rents received by Landlord. All rights and remedies Event of Landlord Default hereunder shall in any way be, or be cumulative and not exclusiveconstrued to be, a waiver of any future or subsequent Event of Default.
Appears in 1 contract
Sources: Facilities Lease Agreement (Ultramar Diamond Shamrock Corp)
Rights Upon Default. If a Upon the occurrence and continuation of any Event of Default by Tenant occursBrazos or any Assignee may in its discretion declare this Ground Lease to be in default and do, then at any time ------------------- thereafter prior to the curing thereofextent permitted by applicable law, any one or more of the following:
(a) Terminate this Ground Lease as to any or all Properties leased hereunder;
(b) Whether or not this Ground Lease as to any Property is terminated, sell any Property or Brazos' interest in any Acquired Ground Lease (with or without notice the concurrence or demandrequest of Lessee);
(c) Hold, Landlord use, occupy, lease or keep idle any or all Property as Brazos in its sole discretion may exercise determine, without any duty to account to Lessee with respect to any such action or inaction or for any proceeds thereof;
(d) Exercise any other right or remedy which may be available under applicable law and all rights and remedies available to Landlord under this Leasein general proceed by appropriate judicial proceedings, either at law or in equity, including to enforce the terms hereof or to recover damages for the breach hereof; and
(e) Declare an Event of Property Termination as to any or all Properties leased hereunder. Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by Brazos from time to time at Brazos' election, and nothing herein contained shall be deemed to require Brazos to await the date whereon this Ground Lease or the term hereof would have expired by limitation had there been no such default by Lessee or no such termination or cancellation. The receipt of any payments under this Ground Lease by Brazos with knowledge of any breach of this Ground Lease by Lessee or of any default by Lessee in the performance of any of the terms, covenants or conditions of this Ground Lease, shall not be deemed to be a waiver of any provision of this Ground Lease. No receipt of moneys by Brazos from Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Lease Term or any Renewal Term, or affect any notice theretofore given to Lessee, or operate as a waiver of the right of Brazos to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of Brazos to recover possession of any Property by proper suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Ground Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of the Property, Brazos may demand, receive and collect any moneys payable hereunder, without in any manner affecting such notice, proceedings, suit, action, order, warrant or judgment; and any and all such moneys so collected shall be deemed to be payments on account for the use, operation and occupation of the Property, or at the election of Brazos, on account of Lessee's liability hereunder. Acceptance of the keys to any Property, or any similar act, by Brazos, or any agent or employee, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Property unless Brazos shall consent thereto in writing. If, after an Event of Default shall have occurred, Lessee fails to surrender promptly after written request by Brazos or converts or destroys any Property, Lessee shall be liable to Brazos for all Basic Rent and Additional Rent then due and payable with respect to such Property, all other amounts payable under this Ground Lease, the Acquisition Cost of such Property as of the date of such request, conversion or destruction and all losses, damages and expenses (including, without limitation, attorneys' fees and expenses) sustained by Brazos by reason of such Event of Default and the exercise of Brazos' remedies with respect thereto. If, after an Event of Default Brazos repossesses any Property, notwithstanding any termination of this Lease Ground Lease, Lessee shall be liable for and termination of Tenant's right Brazos may recover from Lessee all Basic Rent accrued and any Additional Rent owing with respect to possession without terminating the Lease. If Tenant is in Default for nonpayment of Rent and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers such Property to the Premises written notice date of Landlord's intent such repossession, all other amounts payable under this Ground Lease, and all losses, damages and expenses (including, without limitation, reasonable attorneys' fees and expenses) sustained by Brazos by reason of such Event of Default and the exercise of Brazos' remedies with respect thereto. In addition, Brazos may sell Brazos' interest in any Property upon any terms that Brazos deems satisfactory, free of any rights of Lessee or any person claiming through or under Lessee. In the event of such sale, in addition to exercise its lockout rightsthe amounts payable under the first sentence of this paragraph, then Landlord Brazos shall be entitled to change recover from Lessee, as liquidated damages, and not as a penalty, an amount equal to the Acquisition Cost of any Property so sold, minus the net proceeds of such sale (deducting from the gross proceeds of such sale any reasonable legal expenses, commissions, sales taxes or modify door locks on all entry doors of the Premises and Tenant shall not be entitled to a key to re-enter the Premises until all delinquent Rent is paid in full: other costs or expenses associated with such sale) received by Brazos; provided, however, Landlord if the proceeds of such sale are in excess of the amount payable to Brazos pursuant hereto, such excess shall immediately thereafter post a notice on an entry door be the property of Lessee. In lieu of such sale, in addition to the Premisesamounts payable under the first sentence of this paragraph, stating that Landlord has exercised such lockout rights. If Tenant vacates or abandons the Premises or any significant portion thereof. Landlord Brazos may permanently change the locks without notice cause Lessee to Tenantpay to Brazos, and Tenant Lessee shall not be entitled pay to a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of a DefaultBrazos, Landlord may, without additional notice and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefromas liquidated damages, and Tenant hereby agrees to surrender possession of the Premisesnot as a penalty, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, and agrees to hold Landlord harmless from any such claims. If Landlord elects to terminate this Lease, it may treat the default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages amount equal to the total Acquisition Cost of any or all of the Property, and upon payment in full of all such amounts Brazos shall transfer all of Brazos' right, title and interest in and to the Property to Lessee. Brazos may (i) sell all or any part of the Property at public or private sale, as Brazos may determine, free and clear of any rights of the Lessee and without any duty to account to the Lessee with respect to such action or inaction or any proceeds with respect thereto (except to the extent required by clause (ii) below if Brazos shall elect to exercise its rights thereunder) in which event the Lessee's obligation to pay Basic Rent hereunder for periods commencing after the date of such sale shall be terminated or proportionately reduced, as the case may be; and (ii) if Brazos shall so elect, demand that the Lessee pay to Brazos, and the Lessee shall pay to Brazos, on the date of such sale, as liquidated damages for loss of a bargain and not as a penalty (the parties agreeing that Brazos' actual damages would be difficult to predict, but the aforementioned liquidated damages represent a reasonable approximation of such amount) (in lieu of Basic Rent due for periods commencing on or after the Basic Rent Payment Date coinciding with such date of sale (or, if the sale date is not a Basic Rent Payment Date, the Basic Rent Payment Date next preceding the date of such sale)), an amount equal to (A) the excess, if any, of (a1) the cost Acquisition Cost calculated as of recoveringsuch Basic Rent Payment Date (including all Rent due and unpaid to and including such Basic Rent Payment Date), relettingover (2) the net proceeds of such sale, if any (that is, after deducting all reasonable costs and expenses incurred by Brazos, the Agent and the Assignees incident to such conveyance, including, without limitation, repossession costs, brokerage commissions, prorations, transfer taxes, fees and expenses for counsel, title insurance fees, survey costs, recording fees, and any repair or alteration costs); plus (B) all damages, reasonable costs and expense of Brazos under the cost Ground Lease; plus (C) interest at the overdue rate provided in SECTION 6.3 hereof on the foregoing amount from such Basic Rent Payment Date until the date of leasing commissions attributable payment. Brazos may exercise any other right or remedy that may be available to it under applicable law, or proceed by appropriate court action (legal or equitable) to enforce the terms hereof or to recover damages for the breach hereof. Separate suits may be brought to collect any such damages for any period(s), and such suits shall not in any manner prejudice Brazos' right to collect any such damages for any subsequent period(s), or Brazos may defer any such suit until after the expiration of the Term, in which event such suit shall be deemed not to have accrued until the expiration of the Lease Term. In the event that a court of competent jurisdiction rules that this Ground Lease constitutes a mortgage, deed of trust or other secured financing as is the intent of the parties pursuant to SECTION 3.3, and subject to the unexpired portion availability of such remedy under applicable law, then Brazos and the Lessee agree that the Lessee hereby grants, bargains, sells, transfers, assigns and conveys unto the trustee named as such in the Lien granted by Brazos to Agent, as trustee and herein referred to as "trustee", and its successors (Brazos hereby reserving the right to from time to time, with or without cause and at Brazos' sole discretion, by instrument in writing, substitute a successor or successors to trustee, which instrument, executed by Brazos duly acknowledged and recorded in the office of the Term recorder of this Leasethe county or counties where the Property is situated, shall be conclusive proof of proper substitution of such successor, who shall, without conveyance from trustee or any successor trustee to trustee, succeed to all his title, estate, rights, powers and duties), in trust a lien and security interest against the Property, to have and to hold the Property, together with all and singularly the rights, hereditaments, and remodeling appurtenances in any way appertaining or belonging thereto, unto such trustee and such trustee's successor or substitute in such trust, and such trustee's and its or his successors and assigns, in trust, and that, upon the Premisesoccurrence and during the continuance of any Event of Default such trustee, at the direction of Brazos, may proceed with foreclosure, and in such event such trustee, at the direction of Brazos, is hereby authorized and empowered, and it shall be such trustee's special duty, upon such request of Brazos, acting upon a request from the Agent or Assignees, to sell the Property, or any part thereof, to the highest bidder or bidders for cash or credit, as directed by Brazos, acting upon a request from the Agent or Assignees, at the location at the county courthouse specified by the commissioner's court in the county in the state wherein the Property then subject to the lien hereof is situated or, if no such location is specified by the commissioner's court, then at the location specified in such trustee's notice of such sale to the Lessee; provided, that if the Property is situated in more than one county, then such sale of the Property, or part thereof, may be made in any county in the state wherein any part of the Property then subject to the lien hereof is situated. Any such sale shall be made at public outcry between the hours of ten o'clock (b10:00) all unpaid Rent A.M. and four o'clock (4:00) P.M. on the first (1st) Tuesday in any month. Written or printed notice of such sale shall be posted at the courthouse door in the county, or if more than one, then in each of the counties, wherein the Property then subject to the lien hereof is situated. Such notice shall designate the county where the Property, or part thereof, will be sold and the earliest time at which the sale will occur, and such notice shall be posted at least twenty-one (21) days prior to the date of sale. Such notice shall also be filed with the county clerk in the county, or if more than one, then in each of the counties wherein the Property is located. Trustee shall, at least twenty-one (21) days preceding the date of sale, serve written notice of the proposed sale by certified mail on Lessee and each other debtor obligated to pay the Acquisition Cost and other amounts earned or due through such termination, including interest thereon at obligations secured hereby according to the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) records of the balance Agent and Assignees. After such sale, Brazos shall make to the purchaser or purchasers thereunder good and sufficient assignments, deed, bills of sale, and other instruments, in the name of Brazos, conveying the Property, or part thereof, so sold to the purchaser or purchasers with general warranty of title by Brazos. The sale of a part of the Rent for Property shall not exhaust the remainder power of sale, but sales may be made from time to time until the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period Acquisition Cost and (d) any other sum of money obligations secured hereby are paid and damages owed by Tenant to Landlordperformed in full. If Landlord elects to terminate Tenant's right to possession of the Premises without terminating this Lease. Landlord may (but It shall not be obligated to) rent necessary to have present or to exhibit at any such sale any of the Premises personal property. Upon the occurrence and during the continuation of a Lease Event of Default, Brazos, in lieu of or in addition to exercising any part thereof power of sale hereinabove given, may proceed by a suit or suits in equity or at law, whether for a foreclosure hereunder, or for the account sale of Tenant the Property, or against the Lessee on a recourse basis for the Acquisition Cost, or the specific performance of any covenant or agreement herein contained or in aid of the execution of any power herein granted, or for the appointment of a receiver pending any foreclosure hereunder or the sale of the Property, or for the enforcement of any other appropriate legal or equitable remedy. With respect to the termination of this Ground Lease as to any person Property as a result of an Event of Default, Lessee hereby waives service of any notice of intention to re-enter. Lessee hereby waives any and all rights to recover or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance regain possession of the Term exceeds the net amount, if any, received by Landlord from such reletting, being the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall be paid by Tenant in monthly installments on the first day of each month of the Term. In no case shall Landlord be liable for failure to relet the Premises any Property or to collect the rent due reinstate this Ground Lease as permitted or provided by or under such relettingany statute, law or decision now or hereafter in force and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be cumulative and not exclusiveeffect.
Appears in 1 contract
Rights Upon Default. If a Default by Tenant occurs, then at (a) Notwithstanding any time ------------------- thereafter prior provision herein to the curing thereof, with contrary and irrespective of whether all or without notice any rights conferred upon Landlord by this Article XVII are expressly or demand, by implication conferred upon Landlord may exercise any and all rights and remedies available to Landlord under elsewhere in this Lease, at law in the event of (i) any failure of Tenant to pay any Fixed Rent or in equity, Percentage Rent or any other charges or sums whatsoever due hereunder (including without limitation, termination amounts due as reimbursement to Landlord for costs incurred by Landlord in performing obligations of Tenant hereunder upon Tenant's failure so to perform) for more than ten (10) days after written notice from Landlord to Tenant that such Fixed Rent or any other charges or sums whatsoever due hereunder were not received on the date required for payment pursuant to this Lease, or (ii) any default or failure by Tenant to perform any other of the terms, conditions, or covenants of this Lease and termination of Tenant's right to possession without terminating the Lease. If be observed or performed by Tenant is in Default for nonpayment of Rent and if Tenant fails to pay same in full within five more than twenty (520) days after Landlord hand delivers to the Premises written notice from Landlord to Tenant of Landlord's intent such default unless such default cannot be cured within said twenty (20) days in which event Tenant shall have commenced to exercise its lockout rightscure said default within twenty (20) days and shall proceed to cure the same with all reasonable dispatch and diligently pursue same to completion, or (iii) Tenant fails continuously to operate in the manner and during the hours established by Landlord pursuant to Section 7.02 hereof or for the use specified in the Section 7.01, writ of execution or similar writ or order, then Landlord shall be entitled Landlord, in addition to change or modify door locks on all entry doors in lieu of the Premises and Tenant shall not be entitled to a key to re-enter the Premises until all delinquent Rent is paid in full: provided, however, Landlord shall immediately thereafter post a notice on an entry door to the Premises, stating that Landlord has exercised such lockout rights. If Tenant vacates other rights or abandons the Premises or any significant portion thereof. Landlord remedies it may permanently change the locks without notice to Tenant, and Tenant shall not be entitled to a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of a Default, Landlord may, without additional notice and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefrom, and Tenant hereby agrees to surrender possession of the Premises, waives any claim arising by reason thereof have under this Lease or by reason of issuance of any distress warrant or writ of sequestrationlaw, and agrees shall have the right to hold Landlord harmless from any such claims. If Landlord elects to (a) immediately terminate this Lease, it may treat the default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of (a) the cost of recovering, reletting, including, without limitation, the cost of leasing commissions attributable to the unexpired portion of the Term of this Lease, and remodeling the Premises, (b) all unpaid Rent and other amounts earned or due through such termination, including interest thereon at the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) of the balance of the Rent for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (d) any other sum of money and damages owed by Tenant to Landlord. If Landlord elects to terminate Tenant's right to possession of the Premises by giving Tenant written notice that this Lease is terminated, in which event, upon such termination, Landlord shall have the right to recover from Tenant the sum of (1) the worth at the time of award of the unpaid rental which had been earned at the time of termination; (2) the worth at the time of award of the amount by which the unpaid rental which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant affirmatively proves could have been reasonably avoided; (3) the worth at the time of award of the amount by which the unpaid rental for the balance of the Term after the time of award exceeds the amount of such rental loss that Tenant affirmatively proves could be reasonably avoided; (4) 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 things would be likely to result therefrom; and (5) all such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time under applicable law; or (b) have this Lease continue in effect for so long as Landlord does not terminate this Lease and Tenant's right to possession of the Premises, in which event Landlord shall have the right to enforce all of Landlord's rights and remedies under this Lease including the right to recover the Fixed Rent, Percentage Rent and other charges payable by Tenant under this Lease as they become due under this Lease, and Tenant shall have the right to sublet the Premises or (at Landlord's option) assign Tenant's interest in this Lease for a use permitted under this Lease to a party determined by Landlord to be of good moral character and sound financial responsibility; or (c) without terminating this Lease. , Landlord may pay or discharge any breach or violation hereof which amount so expended shall be added to the next monthly incremental payment of Fixed Rent due and treated in the same manner as rental hereunder; or (but shall not d) without terminating this Lease, make such alterations and repairs as may be obligated to) rent necessary in order to relet the Premises, and relet the Premises or any part thereof for such term or terms (which may be for a term extending beyond the account Term of Tenant to any person this Lease) at such rental or persons for rentals and upon such rent and for such other terms and conditions as Landlord deems appropriate, in its sole discretion may deem advisable.
(b) Upon such reletting all rental and Tenant shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, other sums received by Landlord from such reletting shall be applied, first, to the payment of any indebtedness other than rental due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting, being including reasonable brokerage fees and attorney fees and of costs of such alterations and repairs; third, to the gross amount so received payment of Fixed Rent due and unpaid hereunder; and the residue, if any, shall be held by Landlord less and applied in payment of future Fixed Rent payable by Tenant hereunder, as the costs of repossession, reletting, remodeling, same may become due and payable hereunder. If such Fixed Rent and other expenses incurred sums received from such reletting during any month are less than that to be paid during that month by Tenant hereunder, Tenant shall pay such deficiency to Landlord. Such sum or ; if such rentals and sums shall be more, Tenant shall have no right to the excess. Such deficiency shall be calculated and paid by Tenant in monthly installments on the first day of each month monthly. No re-entry or taking possession of the TermPremises by Landlord shall be construed as an election on its part 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. In no case Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. Should Landlord at any time terminate this Lease for any breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the Premises, all of which amount shall be immediately due and payable from Tenant to Landlord. Landlord be liable for shall use its best efforts to mitigate its damages hereunder; however, the failure or refusal of Landlord to relet the Premises shall not affect Tenant's liability. The terms "entry" and "re-entry" are not limited to their technical meanings. If Tenant shall default hereunder prior to the date fixed as the Opening of any renewal or to collect extension of this Lease, Landlord may cancel and terminate such renewal or extension provision or agreement by written notice. In the rent due under event of re-entry by Landlord, Landlord may remove all persons and property from the Premises and such relettingproperty may be stored in a public warehouse or elsewhere at the cost of, and in no for the account of Tenant, without notice or resort to legal process and without Landlord being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. In the event Tenant shall not remove its property from the Premises within ten (10) days after Tenant has vacated the Premises, then such property shall be entitled deemed abandoned by Tenant and Landlord may dispose of the same without liability to more than 50% Tenant.
(c) At any time that Tenant has either failed to pay Fixed Rent, or other charges within ten (10) days after the same shall be due or shall have delivered checks to Landlord for payments pursuant to this Lease which shall have on at least three (3) occasions during the Term of any excess rents received this Lease (whether consecutive or not or whether involving the same check or different checks) been returned by Landlord. All rights and remedies of 's bank for any reason, Landlord shall not be cumulative obligated to accept any payment from Tenant unless such payment is made by cashier's check or in bank certified funds.
(d) For purposes of Section 17.01(a), "worth at the time of award" shall be computed by allowing interest at the "Interest Rate", as defined in Section 26.08); the rental reserved in this Lease shall be deemed to be a monthly rental arrived at (i) by adding to the monthly installment of Fixed Rent payable under this Lease, plus (ii) one twelfth (1/12th) of the annual average of all Percentage and not exclusiveAdditional Rent payable by Tenant hereunder (such as, by way of example, Tenant's share of Real Estate Taxes).
Appears in 1 contract
Rights Upon Default. (a) If a Default by Tenant occursshall have occurred, Landlord shall have the right, at its election, then or at any time ------------------- thereafter prior to pursue any one (1) or more of the curing thereoffollowing remedies without any demand or notice whatsoever, with in addition to all other rights or without notice remedies provided herein or demand, Landlord may exercise any and all rights and remedies available to Landlord under this Lease, at law or in equity, including it being understood that all of such remedies shall be cumulative:
(i) Landlord may elect to terminate this Lease and Tenant's right to the Premises or, without limitationterminating this Lease, forthwith terminate Tenant's right to possession of the Premises. Upon any termination of this Lease and Lease, whether by lapse of time or otherwise, or upon any termination of Tenant's right to possession without terminating the termination of this Lease. If Tenant is in Default for nonpayment of Rent , Lessee shall surrender possession and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers to vacate the Premises written notice and deliver possession thereof to Landlord, and Tenant hereby grants to Landlord full and free license to enter into and upon the Premises with or without process of law in the event of any such termination of lease or right to possession, and to repossess Landlord of the Premises as of Landlord's intent former estate and to exercise its lockout rights, then Landlord shall expel or remove Tenant and any others who may be entitled to change occupying or modify door locks on all entry doors of be within the Premises or any part thereof and Tenant shall not to remove any and all property therefrom using such force as may be entitled necessary without being deemed in any manner guilty of trespass, eviction or forcible entry or detainer, without being liable for prosecution or any claim for damages therefor hereunder without relinquishing Landlord's rights to a key rent or any other right given to re-enter the Premises until all delinquent Rent is paid in full: provided, however, Landlord shall immediately thereafter post a notice on an entry door to the Premises, stating that Landlord has exercised such lockout rights. hereunder or by operation of law.
(ii) If Tenant vacates or voluntarily abandons the Premises or any significant portion thereof. otherwise entitles Landlord may permanently change the locks without notice to Tenant, and Tenant shall not be entitled to a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of a Default, Landlord may, without additional notice and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefrom, and Tenant hereby agrees to surrender possession of the Premises, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, and agrees to hold Landlord harmless from any such claims. If Landlord elects to terminate this Lease, it may treat the default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of (a) the cost of recovering, reletting, including, without limitation, the cost of leasing commissions attributable to the unexpired portion of the Term of this Lease, and remodeling the Premises, (b) all unpaid Rent and other amounts earned or due through such termination, including interest thereon at the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) of the balance of the Rent for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (d) any other sum of money and damages owed by Tenant to Landlord. If Landlord elects elect to terminate Tenant's right to possession of the Premises only without terminating this Lease, and Landlord does so elect, Landlord may, at Landlord's option, enter into the Premises, remove Tenant's signs and other evidences of tenancy and take and hold possession thereof as described in subparagraph (i) of this Section 13.02, without such entry and possession terminating this Lease or releasing Tenant, in whole or in part, from Tenant's obligation to pay the Rent hereunder for the full Term. Upon and after entry into possession without termination of this Lease, subject to Landlord's right to first rent other vacant areas in the Building and/or the Project, Landlord may (but shall not be obligated to) rent elect to relet the Premises or any part thereof to any person, firm or corporation other than Tenant for such rent, for such time and upon such terms as Landlord in Landlord's sole discretion shall deem advisable and receive the rent therefor. Any proceeds from any such reletting of the Premises by Landlord shall first be applied against the cost and expenses of reletting the Premises including, but not limited to, all brokerage, advertising, legal, alteration and other expenses incurred to secure a new tenant for the Premises. If the consideration collected by Landlord upon any such reletting, after payment of the expenses of reletting the Premises, is not sufficient to pay monthly the full amount of the rent reserved in this Lease, Tenant shall pay to Landlord the amount of each monthly deficiency as it becomes due upon demand. If the consideration collected by Landlord upon any such reletting for Tenant's account is, after payment of Tenant the expenses of reletting the Premises, greater than the amount necessary to pay the full amount of the rent reserved in this Lease, the full amount of such excess shall be retained by Landlord and in no event payable to Tenant.
(iii) Should Landlord decide to terminate this Lease, Landlord, at its sole option, shall be entitled to recover from Tenant, in lieu of any person or persons for such rent and for such terms and conditions as Landlord deems appropriateamounts due under subparagraph (ii) only of this Section 13.02, and Tenant shall be liable pay to Landlord Landlord, on demand, as and for liquidated and agreed final damages, a sum equal to the amount, if any, by which amount of Landlord's reasonable estimate of the aggregate amount of Rent for the unexpired balance period from the date of such termination through the termination date set forth herein, increased annually for CPI as set forth herein, and including but not limited to, Actual Operating Expense Increase and other amounts payable as rent hereunder, reduced by the then reasonable rental value of the Term exceeds Premises discounted to present value at a rate equal to the net amountrate of interest which is allowable by law in the State of Texas, when the parties to a contract have not agreed on any particular rate of interest or, in the absence of such law, at the rate of six percent (6%) per annum. If, before presentation of proof of such liquidated damages to any court, commission or tribunal, the Premises, or any part thereof, shall have been relet by Landlord to an unrelated third party, for such period, or any part thereof, the amount of rent payable upon such reletting shall be deemed to be the reasonable rental value for the part or the whole of the Premises relet during the term of the reletting.
(iv) Landlord may enter upon the Premises by force if necessary, without being liable for prosecution or any claim for damages thereon, and do whatever Tenant is obligated to do under the terms of this Lease; and Tenant agrees to reimburse Landlord on demand for any expenses which Landlord may incur in thus effecting compliance with Tenant's obligations under this Lease, such amounts to constitute additional rent payable hereunder, and Tenant further agrees that Landlord shall not be liable for any damages resulting to Tenant from any such action.
(v) Notwithstanding anything in this Lease to the contrary, any and all remedies set forth in this Lease (A) shall be in addition to any and all other remedies Landlord may have at law or in equity and (B) shall be cumulative. The waiver by Landlord of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition. The acceptance of rent hereunder shall not be construed to be a waiver of any breach by Tenant of any term, covenant or condition of this Lease. The acceptance by Landlord at any time or from time to time of rent in an amount less than that to which Landlord is entitled hereunder shall not be construed as a waiver of Landlord's right to demand the full amount nor a release of Tenant's liability for the full amount of rent payable hereunder.
(vi) No re-entry or taking 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. Notwithstanding any such reletting or entry or taking possession, Landlord may at any time thereafter elect to terminate this Lease for a previous Default. 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, nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any rent due to Lessor hereunder or of any damages accruing to lessor by reason of the violation by Tenant of any of the terms, provisions and covenants herein contained. Landlord's acceptance of rent following Tenant's Default hereunder shall not be construed as Landlord's waiver of such Default. No waiver by Landlord of any failure, violation or breach of any of the terms, provisions and covenants herein contained shall be deemed or construed to constitute a waiver of any other failure, violation or default. The loss or damage that Landlord may suffer by reason of termination of this Lease or the deficiency from any reletting as provided for above shall include the expense of repossession and any repairs or remodeling undertaken by Landlord following possession. Should Landlord at any time terminate this Lease for any event of default, in addition to any other remedy Landlord may have, Landlord may recover from Tenant all damages Landlord may incur by reason of such Default, including the cost of recovering the Premises and the loss of rental for the remainder of the Term.
(b) Without limiting or waiving any rights of Landlord as set forth in 13.02 (a) above, if anythere exists a Default under 13.01 above, received Landlord may, without judicial process, prevent Tenant from entering the Premises by changing the door locks. If Landlord changes the door locks, Landlord shall place a written notice, on the front door of the Premises, stating the name and address or telephone number of an individual or company from such relettingwhich a new key may be obtained by Tenant; provided, being however, that (i) the gross amount so received by Landlord less the costs of repossession, reletting, remodelingnew key needs to be provided only during tenant's regular business hours, and other (ii) Landlord may condition delivery of the new key upon Tenant's payment of all rent then due. Costs and expenses incurred by Landlord. Such sum or sums Landlord in exercise of its right pursuant to this subsection (b) shall be paid deemed to be damages and/or costs recoverable by Tenant in monthly installments on the first day of each month of the Term. In no case shall Landlord be liable for failure pursuant to relet the Premises or to collect the rent due under such reletting, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be cumulative and not exclusive13.02 (a) above.
Appears in 1 contract
Rights Upon Default. If a Default by Tenant occurs, then at any time ------------------- thereafter prior to the curing thereof, with or without notice or demanddemand and without waiving any additional or remaining rights herein available to Landlord, Landlord may exercise any and all rights and remedies available to Landlord under this Lease, at law law, or in equity, including including, without limitation, termination of this Lease and termination of Tenant's right to possession without terminating the Lease. If Tenant is in Default for nonpayment of Rent and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers to the Premises written notice of Landlord's intent to exercise its lockout rights, then Landlord shall be entitled to change or modify door locks on all entry doors of the Premises and Tenant shall not be entitled to a key to re-enter the Premises until all delinquent Rent is paid in full: provided, however, Landlord shall immediately thereafter post a notice on an entry door to the Premises, stating that Landlord has exercised such lockout rights. If Tenant vacates or abandons the Premises or any significant portion thereof. Landlord may permanently change the locks without notice to Tenant, and Tenant shall not be entitled to a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of a Default, Landlord may, without additional notice and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefrom, therefrom and said Tenant hereby agrees to surrender possession of the Premises, Premises and waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, sequestration and agrees to hold Landlord harmless from any such claims. If Landlord elects to terminate this Lease, it may treat the default Default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of of: (ai) the reasonable cost of recovering, reletting, reletting (including, without limitation, the cost of leasing commissions lease commission attributable to the unexpired portion of the Term of this Lease), and remodeling the Premises, Premises per building standards; (bii) all unpaid Rent and other amounts earned or due through such termination; plus, including interest thereon at the rate specified in Section 13.04 hereof, plus (ciii) the present value (discounted at the rate of 8% per annum) of the balance of the total Rent and other amounts to be paid by Tenant hereunder for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (d) any other sum of money and damages owed by Tenant to Landlordfull Term. If Landlord elects to terminate Tenant's right to possession of the Premises without terminating this the Lease. , Landlord may (but shall not be obligated to) make commercially reasonable efforts to rent the Premises or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, received by Landlord from such reletting, (such amount received by Landlord being the gross amount so received by Landlord less the reasonable costs of repossession, reletting, remodeling, and other expenses incurred by Landlord). Such sum or sums shall be paid by Tenant in monthly installments on the first day of each month of the Term. In no case shall Landlord be liable for failure to relet the Premises or to collect the rent due under such reletting, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be cumulative and not exclusive.
Appears in 1 contract
Sources: Lease Agreement (Spacehab Inc \Wa\)
Rights Upon Default. If a Upon the occurrence and continuation of any Event of Default by Tenant occursBrazos or any Assignee may in its discretion declare this Ground Lease to be in default and do any one or more of the following:
(a) Terminate the lease of any or all Property leased hereunder;
(b) Whether or not any action has been taken under (a) above, then at sell any time ------------------- thereafter prior to the curing thereof, Property or Brazos' interest in any Acquired Ground Lease (with or without notice the concurrence or demandrequest of Diamond Shamrock R & M);
(c) Hold, Landlord use, occupy, lease or keep idle any or all Property as Brazos in its sole discretion may exercise determine, without any duty to account to Diamond Shamrock R & M with respect to any such action or inaction or for any proceeds thereof; and
(d) Exercise any other right or remedy which may be available under applicable law and all rights and remedies available to Landlord under this Leasein general proceed by appropriate judicial proceedings, either at law or in equity, including without limitationto enforce the terms hereof or to recover damages for the breach hereof. Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by Braz▇▇ ▇▇▇m time to time at Brazos' election, and nothing herein contained shall be deemed to require Brazos to await the date whereon this Ground Lease or the term hereof would have expired by limitation had there been no such default by Diamond Shamrock R & M or no such termination or cancellation. The receipt of any payments under this Ground Lease by Brazos with knowledge of any breach of this Ground Lease and termination by Diamond Shamrock R & M or of Tenant's right to possession without terminating any default by Diamond Shamrock R & M in the Lease. If Tenant is in Default for nonpayment performance of Rent and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers to the Premises written notice of Landlord's intent to exercise its lockout rights, then Landlord shall be entitled to change or modify door locks on all entry doors any of the Premises and Tenant terms, covenants or conditions of this Ground Lease, shall not be entitled deemed to be a key to re-enter waiver of any provision of this Ground Lease. No receipt of moneys by Braz▇▇ ▇▇▇m Diamond Shamrock R & M after the Premises until all delinquent Rent is paid termination or cancellation hereof in full: providedany lawful manner shall reinstate, however, Landlord shall immediately thereafter post a notice on an entry door to continue or extend the Premises, stating that Landlord has exercised such lockout rights. If Tenant vacates or abandons the Premises Lease Term or any significant portion thereof. Landlord may permanently change Renewal Term, or affect any notice theretofore given to Diamond Shamrock R & M, or operate as a waiver of the locks without right of Brazos to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of Brazos to recover possession of any Property by proper suit, action, proceedings or remedy; it being agreed that, after the service of notice to Tenantterminate or cancel this Ground Lease, and Tenant the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of suit, action or summary proceedings or of any other remedy, or after a final order, warrant -44- 52 or judgment for the possession of the Property, Braz▇▇ ▇▇▇ demand, receive and collect any moneys payable hereunder, without in any manner affecting such notice, proceedings, suit, action, order, warrant or judgment; and any and all such moneys so collected shall be deemed to be payments on account for the use, operation and occupation of the Property, or at the election of Brazos, on account of Diamond Shamrock R & M's liability hereunder. Acceptance of the keys to any Property, or any similar act, by Braz▇▇, ▇▇ any agent or employee, during the term hereof, shall not be entitled deemed to be an acceptance of a key surrender of any Property unless Braz▇▇ ▇▇▇ll consent thereto in writing. If, after an Event of Default shall have occurred, Diamond Shamrock R & M fails to re-enter surrender promptly after written request by Braz▇▇ ▇▇ converts or destroys any Property, Diamond Shamrock R & M shall be liable to Brazos for all Basic Rent and Additional Rent then due and payable with respect to such Property, all other amounts payable under this Ground Lease, the Premises. The two preceding sentences shall supersede any conflicting provisions Acquisition Cost of Section 93.002 such Property as of the Texas Property Code date of such request, conversion or any successor statue In the event of a Defaultdestruction and all losses, Landlord may, without additional notice damages and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefrom, and Tenant hereby agrees to surrender possession of the Premises, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, and agrees to hold Landlord harmless from any such claims. If Landlord elects to terminate this Lease, it may treat the default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of expenses (a) the cost of recovering, reletting, including, without limitation, attorneys' fees and expenses) sustained by Brazos by reason of such Event of Default and the cost exercise of leasing commissions attributable Braz▇▇' ▇▇medies with respect thereto. If, after an Event of Default Brazos repossesses any Property, notwithstanding any termination of this Ground Lease, Diamond Shamrock R & M shall be liable for and Brazos may recover from Diamond Shamrock R & M all Basic Rent accrued and any Additional Rent owing with respect to such Property to the unexpired portion date of the Term of such repossession, all other amounts payable under this Ground Lease, and remodeling all losses, damages and expenses (including, without limitation, reasonable attorneys' fees and expenses) sustained by Brazos by reason of such Event of Default and the Premisesexercise of Braz▇▇' ▇▇medies with respect thereto. In addition, Brazos may sell Brazos' interest in any Property upon any terms that Brazos deems satisfactory, free of any rights of Diamond Shamrock R & M or any person claiming through or under Diamond Shamrock R & M. In the event of such sale, in addition to the amounts payable under the first sentence of this paragraph, Brazos shall be entitled to recover from Diamond Shamrock R & M, as liquidated damages, and not as a penalty, an amount equal to the Acquisition Cost of any Property so sold, minus the net proceeds of such sale (b) deducting from the gross proceeds of such sale any reasonable legal expenses, To the extent deemed necessary or advisable by counsel for Brazos, Braz▇▇ ▇▇▇ll have the right, and is hereby granted the power by Diamond Shamrock R & M, to sell all unpaid Rent and other amounts earned or due through such termination, including interest thereon at the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) of the balance of the Rent for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (d) any other sum of money and damages owed by Tenant to Landlord. If Landlord elects to terminate Tenant's right to possession of the Premises without terminating this Lease. Landlord may (but shall not be obligated to) rent the Premises or any part thereof for of any Property at public venue pursuant to power of sale in accordance with the account laws of Tenant to any person or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amount, if any, by State in which the Rent for the unexpired balance of the Term exceeds the net amountProperty is located. No remedy referred to in this Section 13.02 is intended to be exclusive, if any, received by Landlord from such reletting, being the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall be paid by Tenant in monthly installments on the first day of but each month of the Term. In no case shall Landlord be liable for failure to relet the Premises or to collect the rent due under such reletting, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be cumulative and in addition to any other remedy referred to above or otherwise available to Brazos at law or in equity, and the exercise in whole or in part by Brazos of any one or more of such remedies shall not exclusivepreclude the simultaneous or later exercise by Brazos of any or all such other remedies. No waiver by Braz▇▇ ▇▇ any Event of Default hereunder shall in any way be, or be construed to be, a waiver of any future or subsequent Event of Default. With respect to the termination of this Ground Lease as to any Property as a result of an Event of Default, Diamond Shamrock R & M hereby waives service of any notice of intention to re-enter. Diamond Shamrock R & M hereby waives any and all rights to recover or regain possession of any Property or to reinstate this Ground Lease as permitted or provided by or under any statute, law or decision now or hereafter in force and effect.
Appears in 1 contract
Sources: Ground Lease Agreement (Ultramar Diamond Shamrock Corp)
Rights Upon Default. If a Default notice of such sale be given and the defaults, or any of them upon which such notice of sale is based shall then continue, Master Lessor and Lessor shall have the following rights which may be exercised by Tenant occurs, then either of them at any time ------------------- thereafter prior to the curing thereofcompletion of sale proceedings:
(1) To pay to Encumbrancer the full unpaid principal amount of the Approved Encumbrance, plus unpaid interest accrued to the date of such payment plus foreclosure or sale costs incurred to the date of such payment; or
(2) Within 15 days after receipt of such notice, to pay to Encumbrancer the amount of any such uncured defaults, together with costs and expenses chargeable under such Approved Encumbrance and to assume and make all payments thereafter under such Approved Encumbrance on the leasehold interest described therein. If Master Lessor or without notice Lessor exercises either of the above rights, all the right, title and interest of Lessee in this Lease shall automatically terminate on the date the right is exercised and Master Lessor or demandLessor, Landlord as the case may exercise any and all rights and remedies available to Landlord under be, shall at the same time automatically acquire this Lease; however, at law or in equity, including without limitation, termination such acquisition of this Lease shall not serve to extinguish this Lease by merger or otherwise. In the event neither Master Lessor nor Lessor avails itself of the above rights and termination any sale under the Approved Encumbrance occurs, whether by power of Tenant's right sale or foreclosure, the purchaser at such sale shall succeed to possession all the rights, title and interest of Lessee in the leasehold estate covered by the Approved Encumbrance. It is further agreed that if the purchaser at such sale is the Encumbrancer, the Encumbrancer may sell and assign the leasehold without terminating any further consent, provided that the assignee shall agree in writing to be bound by all the terms and conditions of this Lease. If Tenant the Encumbrancer is in Default for nonpayment of Rent and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers to the Premises written notice of Landlord's intent to exercise its lockout rightspurchaser, then Landlord it shall be entitled required to change or modify door locks on all entry doors of the Premises and Tenant shall not be entitled to a key to re-enter the Premises until all delinquent Rent is paid in full: provided, however, Landlord shall immediately thereafter post a notice on an entry door to the Premises, stating that Landlord has exercised such lockout rightsperform this Lease only so long as it retains title thereto. If Tenant vacates or abandons a sale under the Premises or any significant portion thereof. Landlord may permanently change Approved Encumbrance occurs and the locks without notice purchaser is a party other than the Encumbrancer, said purchaser, as successor in interest to Tenant, Lessee shall be bound by all the terms and Tenant shall not be entitled to a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of a Default, Landlord may, without additional notice and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefrom, and Tenant hereby agrees to surrender possession of the Premises, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, and agrees to hold Landlord harmless from any such claims. If Landlord elects to terminate this Lease, it may treat the default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of (a) the cost of recovering, reletting, including, without limitation, the cost of leasing commissions attributable to the unexpired portion of the Term conditions of this Lease, and remodeling the Premises, (b) all unpaid Rent and other amounts earned or due through such termination, including interest thereon at the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) of the balance of the Rent for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (d) any other sum of money and damages owed by Tenant to Landlord. If Landlord elects to terminate Tenant's right to possession of the Premises without terminating this Lease. Landlord may (but shall not be obligated to) rent the Premises or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, received by Landlord from such reletting, being the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall be paid by Tenant in monthly installments on the first day of each month of the Term. In no case shall Landlord be liable for failure to relet the Premises or to collect the rent due under such reletting, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be cumulative and not exclusive.
Appears in 1 contract
Sources: Long Term Sublease
Rights Upon Default. If a Default by Tenant occurs, then at any time ------------------- thereafter prior to the curing thereofthereafter, with or without notice or demand, Landlord may exercise any and all rights and remedies available to Landlord under this Lease, at law or in equity, including without limitation, termination of this Lease and termination of Tenant's right to possession without terminating the Lease. If Tenant is in Default for nonpayment of Rent and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers to the Premises written notice of Landlord's intent to exercise its lockout rights, then Landlord shall be entitled to change or modify door locks on all entry doors of the Premises and Tenant shall not be entitled to a key to re-enter the Premises until all delinquent Rent is paid in full: provided, however, Landlord shall immediately thereafter post a notice on an entry door to the Premises, stating that Landlord has exercised such lockout rights. If Tenant vacates or abandons the Premises or any significant portion thereof. Landlord may permanently change the locks without notice to Tenant, and Tenant shall not be entitled to a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of a Default, Landlord may, without additional notice and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefrom, and Tenant hereby agrees to surrender possession of the Premises, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, and agrees to hold Landlord harmless from any such claims. If Landlord elects to terminate this Lease, it may treat the default Default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of (a) the cost of recovering, reletting, including, without limitation, the cost of leasing commissions attributable to the unexpired portion of the Term of this Lease, and remodeling the Premises, (b) all unpaid Rent and other amounts earned or due through such termination, including interest thereon at the rate specified in Section 13.04 13.4 hereof, plus (c) the present value (discounted at the rate of 8% per annum) of the balance of the Rent for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (d) any other sum of money and damages owed by Tenant to Landlord. If Landlord landlord elects to terminate Tenant's right to possession of the Premises without terminating this Lease. , Landlord may (but shall not be obligated to) rent the Premises or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, received by Landlord from such reletting, being the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall be paid by Tenant in monthly installments on the first day of each month of the Term. In no case shall Landlord be liable for failure to relet the Premises or to collect the rent due under such reletting, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be cumulative and not exclusive.
Appears in 1 contract
Sources: Lease Agreement (American Eco Corp)
Rights Upon Default. If the Defaulting Party does not cure the default within the grace period provided in Paragraph 9C above, the party complaining of the default (the “Complaining Party”) may terminate this Agreement. To terminate this Agreement for default, the Complaining Party must issue a written notice of termination to the Defaulting Party clearly stating the basis for the termination and the Defaulting Party’s failure to cure the alleged default (the “Default by Tenant occursTermination Notice”). The termination shall be effective thirty (30) days after the date of the Default Termination Notice, then at provided such notice was properly delivered (the “Default Termination Effective Date”). At any time ------------------- thereafter prior to after the curing thereofDefault Termination Effective Date and within the applicable statute of limitations, with or without notice or demand, Landlord the parties may exercise any and pursue all rights and remedies available to Landlord under this Lease, at in law or in equity, including without limitationpayment of accrued amounts pursuant to Paragraph 7 hereof. Notwithstanding any contrary provisions herein, termination of this Lease and termination of Tenant's right Antares’ rights to possession without terminating the Lease. If Tenant is in Default for nonpayment of Rent and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers recover damages from Owner shall be limited to the Premises written notice sum of Landlord's intent to exercise its lockout rights, then Landlord shall be entitled to change or modify door locks on all entry doors (i) accrued and unpaid Base Management Fees and Incentive Management Fees as of the Premises and Tenant shall not be entitled to a key to re-enter the Premises until all delinquent Rent is paid in full: provided, however, Landlord shall immediately thereafter post a notice on an entry door to the Premises, stating that Landlord has exercised such lockout rights. If Tenant vacates or abandons the Premises or any significant portion thereof. Landlord may permanently change the locks without notice to Tenantapplicable termination effective date, and Tenant shall not be entitled to a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of a Default, Landlord may, without additional notice and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefrom, and Tenant hereby agrees to surrender possession of the Premises, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, and agrees to hold Landlord harmless from any such claims. If Landlord elects to terminate this Lease, it may treat the default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of (a) the cost of recovering, relettingother amounts due hereunder, including, without limitationif applicable, the cost of leasing commissions attributable all amounts to fully pay all sums due to third party vendors who provided goods or services to the unexpired portion of the Term of this LeaseCourses, along with all accrued late fees, interest, and remodeling any attorney’s fees and costs incurred in collecting or attempting to collect such unpaid amounts; (ii) actual damages for damages sustained prior to the Premisesapplicable termination effective date; and (iii) the Cancellation Fee, Termination Fee or Sale Termination Fee, if applicable (bdefined below) all unpaid Rent as fixed, agreed liquidated damages and other amounts earned or due through not as a penalty (it being agreed by the parties that Antares’ damages would be extremely difficult to measure and that the Cancellation Fee, Termination Fee and Sale Termination Fee have been agreed upon, after negotiations, as a reasonable estimate of such termination, including interest thereon at the rate specified in Section 13.04 damages). The parties also agree that notwithstanding any contrary provision hereof, plus (c) the present value (discounted at the rate of 8% per annum) of the balance of the Rent for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (d) any other sum of money and Owner’s damages owed by Tenant to Landlord. If Landlord elects to terminate Tenant's right to possession of the Premises without terminating this Lease. Landlord may (but shall not be obligated to) rent the Premises or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amountlimited as provided in Paragraph 14A, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, received by Landlord from such reletting, being the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall any be paid by Tenant in monthly installments on the first day of each month of the Termproven. In no case shall Landlord event will Antares or Owner be liable for failure subject to relet the Premises any consequential, special, punitive or similar damages, each party hereby waiving any right it may have to collect the rent due under seek or claim such reletting, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be cumulative and not exclusivedamages.
Appears in 1 contract
Sources: Golf Management Agreement
Rights Upon Default. If a Default Upon default by Tenant occursBorrower, then at any time ------------------- thereafter prior Lender has all cumulative remedies available to it under State law in enforcing this Agreement and Lender's rights to the curing Collateral mentioned herein including, but not limited to, the following:
(a) Accelerate and declare the full balance immediately due on all of the Notes and commence suit for collection thereof;
(b) Take possession of the Collateral without notice, with except as required by law, provided that said self-help shall be done without breach of peace;
(c) Request and demand that Borrower and Guarantors assemble the Collateral at an acceptable location for delivery to Lender;
(d) Sell or without notice or demand, Landlord may exercise dispose of Collateral by sale and pursuant to the law;
(e) Specifically enforce the terms of the Notes and Security Agreements;
(f) Foreclose on any Collateral by strict foreclosure in equity;
(g) Pursue any and all rights and other remedies available under law to Landlord under this Lease, at law or in equity, including without limitation, termination enforce the terms of this Lease Agreement and termination Lender's rights to Collateral identified herein and the Security Agreements.
(h) In the event the Borrower or Guarantors abandon the Collateral, Lender may take immediate possession of Tenant's right to possession without terminating the Lease. If Tenant is in Default same for nonpayment the purposes of Rent and if Tenant fails to pay same in full within five preserving or otherwise protecting the Collateral from loss, damage or waste.
(5i) days after Landlord hand delivers to the Premises written notice of Landlord's intent to exercise its lockout rights, then Landlord Lender shall be entitled to change or modify door locks on all entry doors the appointment of the Premises a receiver as a matter of right, and Tenant any receiver appointed may serve without bond. Employment by Lender shall not be entitled to disqualify a key to re-enter the Premises until all delinquent Rent is paid in full: provided, however, Landlord shall immediately thereafter post person from serving as a notice on an entry door to the Premises, stating that Landlord has exercised such lockout rightsreceiver. If Tenant vacates or abandons the Premises or any significant portion thereof. Landlord may permanently change the locks without notice to Tenant, and Tenant shall not be entitled to a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of a Default, Landlord may, without additional notice and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefrom, and Tenant hereby agrees to surrender Upon taking possession of the PremisesBorrower or Guarantors' property, waives the receiver may:
(1) Use, operate, manage, control and conduct the business of Borrower and make any claim arising by reason thereof or by reason necessary expenditures for all maintenance and operation of issuance of any distress warrant or writ of sequestrationthe business as in his/her judgment are proper; and
(2) Collect all rent, revenues, income, issues and agrees to hold Landlord harmless profits from any said business and apply such claims. If Landlord elects to terminate this Lease, it may treat the default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal sums to the total necessary expenses of (a) the cost of recoveringmaintenance, relettinguse, including, without limitation, the cost of leasing commissions attributable to the unexpired portion management and operation of the Term of this Lease, business.
(j) Borrower and remodeling the Premises, (b) all unpaid Rent and other amounts earned Guarantors expressly waive any legal or due through such termination, including interest thereon at the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) equitable right to marshal assets. Lender may resort to any Collateral for payment of the balance of the Rent for the remainder of the Term less the present value loan in such order or manner as Lender may elect.
(discounted at the same ratek) of the fair market rental value of the Premises for said period The remedies provided herein are not exclusive and (d) are in addition to any other sum of money and damages owed by Tenant to Landlord. If Landlord elects to terminate Tenant's right to possession of the Premises without terminating this Lease. Landlord may (but shall not be obligated to) rent the Premises remedy available in law or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, received by Landlord from such reletting, being the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall be paid by Tenant in monthly installments on the first day of each month of the Term. In no case shall Landlord be liable for failure to relet the Premises or to collect the rent due under such reletting, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be cumulative and not exclusiveequity.
Appears in 1 contract
Rights Upon Default. If a Default by Tenant occursUpon the occurrence of any default under this Security Agreement, then at any time ------------------- thereafter prior to the curing thereof, with or without notice or demand, Landlord Secured Creditor shall have and may exercise any or all of the following rights:
a. to declare the Liabilities, or any of them (notwithstanding any provision thereof), immediately due and payable without demand or notice of any kind, and the same thereupon shall immediately become due and payable without demand or notice, and from and after the date of default the amount due on the Liabilities shall from and thereafter bear interest at the maximum rate of interest permitted from time to time under Florida law;
b. to exercise from time to time any and all rights and remedies of a secured party under the UCC and any and all rights and remedies available to Landlord it under this Leaseany other applicable law;
c. to seize and take possession of the Collateral and to dispose of the Collateral under the UCC and, at law or in equitysuch case, including without limitationif any notice is required under applicable law, termination the giving of this Lease and termination of Tenant's right to possession without terminating the Lease. If Tenant is in Default for nonpayment of Rent and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers written notice to the Premises written Debtor at its address set forth herein shall constitute reasonable notice of Landlord's intent to exercise its lockout rights, then Landlord shall be entitled to change or modify door locks on all entry doors of the Premises and Tenant shall not be entitled to a key to re-enter the Premises until all delinquent Rent is paid in full: Debtor; provided, however, Landlord the Secured Creditor shall immediately thereafter post a not by virtue of this Security Agreement be obligated to give any such notice on an entry door to the PremisesDebtor; if the Debtor wishes to change its address at which said notice is to be given, stating that Landlord has exercised such lockout rights. If Tenant vacates the burden shall be upon the Debtor to so notify the Secured Creditor in writing and, unless or abandons until said notice is given, all notices sent to the Premises Debtor at the address set forth herein shall be effective and valid notice to the Debtor; and
d. to immediately offset against the Liabilities all other money due or to become due the Debtor from the Secured Creditor, whether said money are due or are to become due under this Security Agreement or any significant portion thereofother relationship whatsoever between the Debtor and the Secured Creditor. Landlord may permanently change All proceeds resulting from the locks without notice to Tenant, and Tenant shall not be entitled to a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of a Default, Landlord may, without additional notice and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefrom, and Tenant hereby agrees to surrender possession of the Premises, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, and agrees to hold Landlord harmless from any such claims. If Landlord elects to terminate this Lease, it may treat the default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of (a) the cost of recovering, reletting, including, without limitation, the cost of leasing commissions attributable to the unexpired portion of the Term of this Lease, and remodeling the Premises, (b) all unpaid Rent and other amounts earned or due through such termination, including interest thereon at the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) of the balance of the Rent for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (d) any other sum of money and damages owed by Tenant to Landlord. If Landlord elects to terminate Tenant's right to possession of the Premises without terminating this Lease. Landlord may (but shall not be obligated to) rent the Premises or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amountdisposition, if any, by which the Rent for the unexpired balance of any of the Term exceeds Collateral or the net amount, exercise by the Secured Creditor of any of its rights under this Security Agreement shall be applied without any marshaling of assets first to the expenses of retaking and preparing the Collateral for sale (if any), received including but not limited to the expenses of sale, next to other costs and attorneys' fees incurred by Landlord from such relettingthe Secured Creditor in exercising its rights under this Security Agreement, being next to the gross amount so received by Landlord less payment of interest and/or principal due on the costs of repossessionLiabilities, reletting, remodelingas the Secured Creditor may determine, and finally to any other expenses incurred by Landlordmoneys due the Secured Creditor from the Debtor. Such sum or sums shall be paid by Tenant in monthly installments on the first day of each month Should any deficiency result after disposition of the Term. In no case Collateral, the Debtor shall Landlord be remain liable for failure to relet the Premises or to collect the rent due under such reletting, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be cumulative and not exclusivedeficiency.
Appears in 1 contract
Sources: Security Agreement (Epazz Inc)
Rights Upon Default. If a Default by Tenant occursUpon the occurrence of any default under this Security Agreement and the expiration of any applicable cure period, then at any time ------------------- thereafter prior to the curing thereof, with or without notice or demand, Landlord Secured Creditor shall have and may exercise any or all of the following rights:
(a) To declare the Liabilities, or any of them (notwithstanding any provision thereof), immediately due and payable without demand or notice of any kind and the same thereupon shall immediately become due and payable without demand or notice, and from and after the date of default the amount due on the Liabilities shall from and thereafter bear interest at the Default Interest Rate (as defined in the Note).
(b) To exercise from time to time any and all rights and remedies of a secured party under the UCC and any and all rights and remedies available to Landlord it under this Leaseany other applicable law.
(c) To request the Debtor to assemble at its expense the Collateral and make it available to the Secured Creditor at a convenient place acceptable to the Secured Creditor and, at upon the making of said request, the Debtor shall promptly comply with said request.
(d) To give notice to and make demand upon all Account Debtors to make payments directly to the Secured Creditor on all Receivables.
(e) To seize and take possession of the Collateral and dispose of same under the UCC and, in such case, if any notice is required under applicable law or in equity, including without limitation, termination the giving of this Lease and termination of Tenant's right to possession without terminating the Lease. If Tenant is in Default for nonpayment of Rent and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers written notice to the Premises written Debtor at its address set forth herein shall constitute reasonable notice of Landlord's intent to exercise its lockout rights, then Landlord shall be entitled to change or modify door locks on all entry doors of the Premises and Tenant shall not be entitled to a key to re-enter the Premises until all delinquent Rent is paid in full: Debtor provided, however, Landlord the Secured Creditor shall immediately thereafter post a not by virtue of this Security Agreement be obligated to give any such notice on an entry door to the Premises, stating that Landlord has exercised such lockout rightsDebtor. If Tenant vacates the Debtor wishes to change its address at which said notice is to be given, the burden shall be upon the Debtor to so notify the Secured Creditor in writing and unless or abandons until said notice is given, all notices sent to the Premises or any significant portion thereof. Landlord may permanently change Debtor at the locks without address set forth herein shall be effective and valid notice to Tenant, and Tenant shall not be entitled to a key to re-enter the PremisesDebtor. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of a Defaultdefault, Landlord maythe Debtor expressly authorizes the Secured Creditor to enter upon all property owned by the Debtor for the purpose of taking into custody and seizing any and all of the Collateral.
(f) To immediately offset against the Liabilities all other monies due or to become due the Debtor from the Secured Creditor, whether said monies are due or are to become due under this Security Agreement, or any other relationship whatsoever between the Debtor and the Secured Creditor. All proceeds resulting from the disposition of any of the Collateral or the exercise by the Secured Creditor of any of its rights under this Security Agreement shall be applied without additional notice any marshalling of assets first to the expenses of retaking and without court proceedingspreparing the Collateral for sale including expenses of sale, re-enter next to other costs and repossess attorneys’ fees incurred by the Premises and remove all persons and property therefromSecured Creditor in exercising its rights under this Security Agreement, next to the payment of interest and/or principal due on the Liabilities, as the Secured Creditor may determine, and Tenant hereby agrees finally to surrender possession any other moneys due the Secured Creditor from the Debtor. Should any deficiency result after disposition of the Premises, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, and agrees to hold Landlord harmless from any such claims. If Landlord elects to terminate this Lease, it may treat the default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of (a) the cost of recovering, reletting, including, without limitationCollateral, the cost of leasing commissions attributable to the unexpired portion of the Term of this Lease, and remodeling the Premises, (b) all unpaid Rent and other amounts earned or due through such termination, including interest thereon at the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) of the balance of the Rent for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (d) any other sum of money and damages owed by Tenant to Landlord. If Landlord elects to terminate Tenant's right to possession of the Premises without terminating this Lease. Landlord may (but Debtor shall not be obligated to) rent the Premises or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, received by Landlord from such reletting, being the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall be paid by Tenant in monthly installments on the first day of each month of the Term. In no case shall Landlord be remain liable for failure to relet the Premises or to collect the rent due under such reletting, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be cumulative and not exclusivedeficiency.
Appears in 1 contract
Rights Upon Default. If a Upon the occurrence and continuation of any Event of Default by Tenant occurseither Brazos or any Assignee may, then at in either's sole discretion, declare this Ground Lease to be in default and do any time ------------------- thereafter prior to one or more of the curing thereoffollowing:
(a) Terminate this Ground Lease;
(b) Whether or not any action has been taken under (a) above, sell the Property (with or without notice the concurrence or demandrequest of Vari-Lite);
(c) Hold, Landlord use, occupy, lease or keep idle the Property, without any duty to account to Vari-Lite with respect to any such action or inaction or for any proceeds thereof; and
(d) Exercise any other right or remedy which may exercise any be available under applicable law and all rights and remedies available to Landlord under this Leasein general proceed by appropriate judicial proceedings, either at law or in equity, including without limitationto enforce the terms hereof or to recover damages for the breach hereof. Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by Brazos from time to time at Brazos' election, and nothing herein contained shall be deemed to require Brazos to await the date whereon this Ground Lease or the term hereof would have expired by limitation had there been no such default by Vari-Lite or no such termination or cancellation. The receipt of any payments under this Ground Lease by Brazos with knowledge of any breach of this Ground Lease and termination by Vari-Lite or of Tenant's right to possession without terminating any default by Vari-Lite in the Lease. If Tenant is in Default for nonpayment performance of Rent and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers to the Premises written notice of Landlord's intent to exercise its lockout rights, then Landlord shall be entitled to change or modify door locks on all entry doors any of the Premises and Tenant terms, covenants or conditions of this Ground Lease shall not be entitled deemed to be a key waiver of any provision of this Ground Lease. No receipt of moneys by Brazos from Vari-Lite after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Lease Term or any Renewal Term, or affect any notice theretofore given to reVari-enter Lite, or operate as a waiver of the Premises until right of Brazos to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of Brazos to recover possession of the Property by proper suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Ground Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of the Property, Brazos may demand, receive and collect any moneys payable hereunder, without in any manner affecting such notice, proceedings, suit, action, order, warrant or judgment; and any and all delinquent Rent is paid in full: providedsuch moneys so collected shall be deemed to be payments on account for the use, howeveroperation and occupation of the Property, Landlord shall immediately thereafter post a notice or at the election of Brazos, on an entry door account of Vari-Lite's liability hereunder. Acceptance of the keys to the PremisesProperty, stating that Landlord has exercised such lockout rights. If Tenant vacates or abandons the Premises or any significant portion thereof. Landlord may permanently change similar act, by Brazos, or any agent or employee, during the locks without notice to Tenantterm hereof, and Tenant shall not be entitled deemed to be an acceptance of a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 surrender of the Texas Property Code or any successor statue In the event unless Brazos shall consent thereto in writing. If, after an Event of a DefaultDefault shall have occurred, Landlord may, without additional notice and without court proceedings, reVari-enter and repossess the Premises and remove all persons and property therefrom, and Tenant hereby agrees Lite fails to surrender possession promptly after written request by Brazos or converts or destroys the Property, Vari-Lite shall be liable to Brazos for all Basic Rent and Additional Rent then due and payable with respect to the Property, all other amounts payable under this Ground Lease, the Acquisition Cost of the PremisesProperty as of the date of such request, waives any claim arising by reason thereof conversion or by reason of issuance of any distress warrant or writ of sequestrationdestruction and all losses, damages and agrees to hold Landlord harmless from any such claims. If Landlord elects to terminate this Lease, it may treat the default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of expenses (a) the cost of recovering, reletting, including, without limitation, attorneys' fees and expenses) sustained by Brazos by reason of such Event of Default and the cost exercise of leasing commissions attributable Brazos' remedies with respect thereto. If, after an Event of Default, Brazos repossesses the Property, notwithstanding any termination of this Ground Lease, Vari-Lite shall be liable for and Brazos may recover from Vari-Lite all Basic Rent accrued and any Additional Rent owing with respect to the unexpired portion Property to the date of the Term of such repossession, all other amounts payable under this Ground Lease, and remodeling all losses, damages and expenses (including, without limitation, reasonable attorneys' fees and expenses) sustained by Brazos by reason of such Event of Default and the Premisesexercise of Brazos' remedies with respect thereto. In addition, (b) all unpaid Rent Brazos may sell Brazos' interest in the Property upon any terms that Brazos deems satisfactory, free of any rights of Vari-Lite or any person claiming through or under Vari-Lite. In the event of such sale, in addition to the amounts payable under the first sentence of this paragraph, Brazos shall be entitled to recover from Vari-Lite, as liquidated damages, and other amounts earned or due through such terminationnot as a penalty, including interest thereon at an amount equal to the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) Acquisition Cost of the balance Property so sold, minus the net proceeds of such sale (deducting from the gross proceeds of such sale any reasonable legal expenses, commissions, sales taxes or other costs or expenses associated with such sale) received by Brazos; provided however, if the proceeds of such sale are in excess of the Rent for amount payable to Brazos pursuant hereto, such excess shall be the remainder property of Vari-Lite. In lieu of such sale, in addition to the amounts payable under the first sentence of this paragraph, Brazos may cause Vari-Lite to pay to Brazos, and Vari-Lite shall pay to Brazos, as liquidated damages, and not as a penalty, an amount equal to the Acquisition Cost of any or all of the Term less Property, and upon payment in full of all such amounts Brazos shall transfer all of Brazos' right, title and interest in and to the present value (discounted at Property to Vari-Lite. Following an Event of Default, to the same rate) of extent deemed necessary or advisable by counsel for Brazos, Brazos shall have the fair market rental value of right, and is hereby granted the Premises for said period and (d) any other sum of money and damages owed power by Tenant Vari-Lite, to Landlord. If Landlord elects to terminate Tenant's right to possession of the Premises without terminating this Lease. Landlord may (but shall not be obligated to) rent the Premises sell all or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds Property at public venue pursuant to power of sale in accordance with the net amount, if any, received by Landlord from such reletting, being the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall be paid by Tenant in monthly installments on the first day of each month laws of the TermState. In no case shall Landlord No remedy referred to in this SECTION 13.2 is intended to be liable for failure to relet the Premises or to collect the rent due under such relettingexclusive, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to Brazos at law or in equity, and the exercise in whole or in part by Brazos of any one or more of such remedies shall not exclusivepreclude the simultaneous or later exercise by Brazos of any or all such other remedies. No waiver by Brazos of any Event of Default hereunder shall in any way be, or be construed to be, a waiver of any future or subsequent Event of Default. With respect to the termination of this Ground Lease as to the Property as a result of an Event of Default, Vari-Lite hereby waives service of any notice of intention to re-enter. Following an Event of Default, Vari-Lite hereby waives any and all rights to recover or regain possession of the Property or to reinstate this Ground Lease as permitted or provided by or under any statute, law or decision now or hereafter in force and effect.
Appears in 1 contract
Sources: Ground Lease Agreement (Vari Lite International Inc)
Rights Upon Default. If a Default by Tenant occurs, then at any time ------------------- thereafter prior to the curing thereofthereafter, with or without notice or demand, Landlord may exercise any and all rights and remedies available to Landlord under this Lease, at law or in equity, statutory or at common law, including without limitation, termination of this Lease and termination of Tenant's right to possession without terminating the Lease. If Tenant is in Default for nonpayment of Rent and if Tenant fails to pay same in full within five (5) days after Landlord hand delivers to the Premises written notice of Landlord's intent to exercise its lockout rights, then Landlord shall be entitled to change or modify door locks on all entry doors of the Premises and Tenant shall not be entitled to a key to re-enter the Premises until all delinquent Rent is paid in full: provided, however, Landlord shall immediately thereafter post a notice on an entry door to the Premises, stating that Landlord has exercised such lockout rights. If Tenant vacates or abandons the Premises or any significant portion thereof. Landlord may permanently change the locks without notice to Tenant, and Tenant shall not be entitled to a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of a Default, Landlord may, without additional notice and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefrom, and Tenant hereby agrees to surrender possession of the Premises, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, and agrees to hold Landlord harmless from any such claims. If Landlord elects to terminate this Lease, it may treat the default Default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of (a) the cost of recovering, reletting, including, without limitation, the cost of leasing commissions attributable to the unexpired portion of the Term of this Lease, and remodeling of the PremisesPremises for a normal and customary office tenant, (b) all unpaid Rent and other amounts earned or due through such termination, including interest thereon at the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of eight percent (8% %) per annum) of the balance of the Rent for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (d) any other sum of money and damages owed by Tenant to Landlord. If Landlord elects to terminate Tenant's right to possession of the Premises without terminating this Lease. , Landlord may (but shall not be obligated to) rent the Premises or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and conditions as Landlord reasonably deems appropriate, and Tenant shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, received by Landlord from such reletting, being the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall be paid by Tenant in monthly installments on the first day of each month of the Term. In no case shall Landlord be liable for failure to relet the Premises or to collect the rent due under such reletting, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be cumulative and not exclusive. Landlord shall use commercially reasonable efforts to mitigate Tenant's damages in the event of Tenant's default.
Appears in 1 contract
Sources: Lease Agreement (Eloyalty Corp)
Rights Upon Default. If a Default by Tenant occurs, then at Notwithstanding the occurrence of any time ------------------- thereafter prior to the curing thereof, with or without notice or demandEvent of Default, Landlord may exercise any and all rights and remedies available may, by written notice to Landlord under this LeaseTenant, at law or in equity, including without limitation, termination of this Lease and termination of terminate Tenant's right to possession without terminating the Lease. If Tenant is only, in Default for nonpayment of Rent and if Tenant fails to pay same which event this Lease shall continue in full within five force and effect. Upon such notice, Landlord may enter the Demised Premises and re-let the Demised Premises or any part thereof, for Tenant's account, in the name of Landlord or otherwise, for such term or terms (5which may be greater or less than the period which would otherwise have constituted the balance of the Term hereof) and on such conditions (which may include concessions or free rent) as Landlord, in its reasonable discretion, may determine, and may collect and receive the rent therefor. Landlord shall use reasonable efforts to, but in no way be responsible or liable for any failure to re-let the Demised Premises or any part thereof, or for any failure to collect any rent due upon any such re-letting. Tenant shall be immediately liable to Landlord for, and shall pay Landlord upon demand, an amount equal to all of reasonable Landlord's expenses in connection with such re-letting, including all repossession costs, brokerage and management commissions, operating expenses, legal expenses, attorney's fees, reasonable alteration costs and expenses of preparation for such re-letting. Tenant shall also pay to Landlord monthly on the days after Landlord hand delivers on which Basic Rent is payable under this Lease the amount of Basic Rent, and Supplemental Rent otherwise payable under this Lease, less the proceeds, if any, of re-letting effected pursuant to the Premises written notice of Landlord's intent to exercise its lockout rightsprovisions hereof ("Deficiency" or collectively, then the "Deficiencies"). Landlord shall be entitled to change recover from Tenant each monthly Deficiency as the same shall arise or modify door locks on all entry doors of shall have the Premises right to accumulate monthly Deficiencies and Tenant shall not be entitled ▇▇▇ to a key recover the same from time to re-enter the Premises until all delinquent Rent is paid in full: provided, however, Landlord shall immediately thereafter post a notice on an entry door to the Premises, stating that Landlord has exercised such lockout rights. If Tenant vacates or abandons the Premises or any significant portion thereof. time as Landlord may permanently change the locks without notice to Tenant, and determine. No act by Landlord allowed by this paragraph shall terminate this Lease unless Landlord notifies Tenant shall not be entitled to a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of a Default, Landlord may, without additional notice and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefrom, and Tenant hereby agrees to surrender possession of the Premises, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, and agrees to hold Landlord harmless from any such claims. If that Landlord elects to terminate this Lease, it may treat the default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of (a) the cost of recovering, reletting, including, without limitation, the cost of leasing commissions attributable to the unexpired portion of the Term of this Lease, and remodeling the Premises, (b) all unpaid Rent and other amounts earned or due through such termination, including interest thereon at the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) of the balance of the Rent for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (d) any other sum of money and damages owed by Tenant to Landlord. If Landlord elects to terminate Tenant's right to possession of the Premises without terminating this Lease. Landlord may (but shall not be obligated to) rent the Premises or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, received by Landlord from such reletting, being the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall be paid by Tenant in monthly installments on the first day of each month of the Term. In no case shall Landlord be liable for failure to relet the Premises or to collect the rent due under such reletting, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be cumulative and not exclusive.
Appears in 1 contract
Sources: Lease Agreement (Stimsonite Corp)
Rights Upon Default. If a Default by Tenant occurs, then at any time ------------------- thereafter prior to the curing thereof, with or without notice or demand, Landlord may exercise any and all rights and remedies available to Landlord under this Lease, at law or in equity, including without limitation, termination of this Lease and termination of Tenant's ’s right to possession without terminating the Lease. If Tenant is in Default for nonpayment In addition, upon the occurrence of a Default, Landlord may terminate the waiver of Rent and if Tenant fails pursuant to pay same in full within five (5) days after Landlord hand delivers to the Premises written notice of Landlord's intent to exercise its lockout rightsSection 3.04, then Landlord shall be entitled to change or modify door locks on all entry doors for that portion of the Premises abatement period accruing after the date of such waiver and Tenant shall not be entitled to a key to re-enter may remove, at Tenant’s expense, Tenant’s parapet signage from the Premises until all delinquent Rent is paid in full: provided, however, Landlord shall immediately thereafter post a notice on an entry door to the Premises, stating that Landlord has exercised such lockout rights. If Tenant vacates or abandons the Premises or any significant portion thereof. Landlord may permanently change the locks without notice to Tenant, and Tenant shall not be entitled to a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 exterior of the Texas Property Code or any successor statue Building. In the event of a Default, Landlord may, without additional notice and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefrom, and Tenant hereby agrees to surrender possession of the Premises, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, and agrees to hold Landlord harmless from any such claims. If Landlord elects to terminate this Lease, it may treat the default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of (a) the cost of recovering, reletting, including, without limitation, the cost of leasing commissions attributable to the unexpired portion of the Term of this Lease, and remodeling the Premises, (b) all unpaid Rent and other amounts earned or due through such termination, including interest thereon at the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) of the balance of the Rent for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (d) any other sum of money and damages owed by Tenant to Landlord. If Landlord elects to terminate Tenant's ’s right to possession of the Premises without terminating this Lease. , Landlord may (but shall not be obligated to) rent the Premises or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, received by Landlord from such reletting, being the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall be paid by Tenant in monthly installments on the first day of each month of the Term. In no case shall Landlord be liable for failure to relet the Premises or to collect the rent due under such reletting, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be cumulative and not exclusive.
Appears in 1 contract
Sources: Lease Agreement (Wells Real Estate Investment Trust Ii Inc)
Rights Upon Default. If a Default by Tenant occurs, then at any time ------------------- thereafter prior to the curing thereof, with or without notice or demand, Landlord may exercise any and all rights and remedies available to Landlord under this Lease, at law or in equity, including without limitation, termination of this Lease and termination of Tenant's right to possession without terminating the Lease. If Tenant is in Default for nonpayment of Rent and if Tenant fails to pay same in full within five Within thirty (530) days after Landlord hand delivers the execution of this Agreement, the Licensor will deposit two (2) copies of the Source Code and Executable Code for the Licensed Software, and all associated flowcharts, decision tables, schematics, Documentation and other technical documentation and information necessary for a reasonably skilled programmer to understand the structure of, correct errors in, and make modifications to such Source Code and Executable Code (the "Escrowed Materials") into escrow with a mutually acceptable third party escrow agent (the "Escrow Agent"). The Licensor must update the Escrowed Materials each time a generally applicable modification, revision, upgrade or enhancement to the Premises written notice Licensed Software is made, which update shall be within thirty (30) days of Landlord's intent each such modification, revision, upgrade or enhancement. The cost of maintaining the Escrowed Materials with the Escrow Agent during the term of this Agreement shall be borne equally by the Licensor and the Licensee. In the event that the Licensor fails or refuses to exercise its lockout rightsescrow the Escrowed Materials in accordance with this Agreement, then Landlord the Licensee shall be entitled to change injunctive and other equitable relief for such breach or modify door locks on threatened breach of this Section 11 and the Licensor shall be responsible for any and all entry doors of expenses incurred by the Premises Licensee in enforcing its rights including court costs and Tenant reasonable attorneys fees. The Licensee shall not be entitled to receive a key copy of the Escrowed Materials upon the occurrence of any of the following events: (i) any material failure of the Licensor to re-enter perform in accordance with the Premises until all delinquent Rent is paid terms of a maintenance agreement to be entered into between the Licensor and the Licensee for the maintenance of the Licensed Software; (ii) the Licensor: ceases to do business in full: provided, however, Landlord shall immediately thereafter post the normal course; becomes a notice on an entry door debtor under any proceeding pursuant to the Premises, stating that Landlord has exercised U.S. Bankruptcy Code; is subject of any state insolvency proceeding such lockout rightsas an assignment for the benefit of creditors; or seeks to sell substantially all of its assets in a bulk sale transaction. If Tenant vacates or abandons the Premises or any significant portion thereof. Landlord may permanently change the locks without notice to Tenant, and Tenant shall not be entitled to a key to re-enter the Premises. The two preceding sentences shall supersede any conflicting provisions of Section 93.002 of the Texas Property Code or any successor statue In the event of a Default, Landlord may, without additional notice dispute between the Licensor and without court proceedings, re-enter and repossess the Premises and remove all persons and property therefrom, and Tenant hereby agrees Licensee as to surrender possession of whether the Premises, waives any claim arising by reason thereof or by reason of issuance of any distress warrant or writ of sequestration, and agrees to hold Landlord harmless Escrow Agent shall release the Escrowed Materials from any such claims. If Landlord elects to terminate this Lease, it may treat the default as an entire breach of this Lease and Tenant shall immediately become liable to Landlord for damages equal to the total of (a) the cost of recovering, reletting, including, without limitationescrow, the cost of leasing commissions attributable to the unexpired portion of the Term of this Lease, and remodeling the Premises, (b) all unpaid Rent and other amounts earned or due through such termination, including interest thereon at the rate specified in Section 13.04 hereof, plus (c) the present value (discounted at the rate of 8% per annum) of the balance of the Rent for the remainder of the Term less the present value (discounted at the same rate) of the fair market rental value of the Premises for said period and (d) any other sum of money and damages owed by Tenant to Landlord. If Landlord elects to terminate Tenant's right to possession of the Premises without terminating this Lease. Landlord may (but shall not be obligated to) rent the Premises or any part thereof for the account of Tenant to any person or persons for such rent and for such terms and conditions as Landlord deems appropriate, and Tenant dispute shall be liable to Landlord for the amount, if any, by which the Rent for the unexpired balance of the Term exceeds the net amount, if any, received by Landlord from such reletting, being the gross amount so received by Landlord less the costs of repossession, reletting, remodeling, and other expenses incurred by Landlord. Such sum or sums shall be paid by Tenant resolved in monthly installments on the first day of each month of the Term. In no case shall Landlord be liable for failure to relet the Premises or to collect the rent due under such reletting, and in no event shall Tenant be entitled to more than 50% of any excess rents received by Landlord. All rights and remedies of Landlord shall be cumulative and not exclusiveaccordance with Section 12.
Appears in 1 contract