Rights Upon Default. 31.1 Upon the occurrence and continuation of any Event of Default the Lessor may, in addition to exercising any other rights and remedies available to it under applicable law, do any one or more of the following (if, within fifteen (15) Business Days of receipt by the Lessee of an Event of Default Notice (as defined in Section 29(l)), the Lessee has not made a request to purchase all Parcels of Property and Units of Equipment under Section 29(l) or, if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of receipt of the Event of Default Notice such purchase in full compliance with Section 29(l)): (a) Terminate the lease of any or all Property or Equipment leased hereunder by written notice to the Lessee, subject to the maximum amount the Lessor shall be entitled to recover from the Lessee, as described in paragraph (f) of this Section 19; (b) Whether or not the lease of any Property or Equipment is terminated, take immediate possession of and remove any or all Equipment and other equipment or property of the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any premises without liability to the Lessee for so doing, provided that the taking of possession of any Property or Equipment shall take place in a commercially reasonable manner; (c) Whether or not any action has been taken under paragraph (i) or (ii) above, sell any Property or Equipment (free of or subject to the rights of the Lessee or any other person under this Lease and with or without the concurrence or request of the Lessee); (d) Hold, use, occupy, operate, remove, lease or keep idle any or all Property or Equipment as the Lessor in its sole discretion may determine, without any duty to account to the Lessee with respect to any such action or inaction, except that the Lessor agrees that any profit it derives from the occupation or use of any Property or Equipment while exercising its rights under this Section 19 will be applied to reduce the Accrued Default Obligations; and (e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof. 31.2 Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation. 31.3 The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease. 31.4 No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Term or the Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper 55 57 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Property, the Lessor 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 and operation of any Unit of Equipment or the use, operation and occupation of any Parcel of Property, or at the election of the Lessor, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligations. Acceptance of the keys to any Parcel of Property, or any similar act, by the Lessor, or any agent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel of Property unless the Lessor shall consent thereto in writing. 31.5 The Lessee hereby expressly confirms that, in any event, including after any Event of Default, and notwithstanding any termination of this Lease or reentry or repossession by the Lessor, the Lessee shall continue to be liable for, and the Lessor may recover from the Lessee, (i) all Basic Rent accrued to the date of payment, (ii) any Additional Rent owing with respect to all Property or Equipment leased by the Lessee, (iii) all amounts payable hereunder or under any other Operative Document and (iv) all losses, damages, costs and expenses incurred (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, including, in the event of a sale by the Lessor of any Property or Equipment pursuant to this Section 19, all costs and expenses associated with such sale. The amounts payable in clauses (i) through (iv) above are hereinafter sometimes referred to as the "Accrued Default Obligations". Accrued Default Obligations shall not include any damages for loss of profits arising from the prospective use, operation and occupancy by parties other than the Lessee of any Property or Equipment or the anticipated receipt of income therefrom subsequent to the Lessee's possession of such Property and Equipment.
Appears in 1 contract
Sources: Lease Agreement (Potash Corporation of Saskatchewan Inc)
Rights Upon Default. 31.1 Upon the occurrence and continuation of If any Event of Default the Lessor mayshall occur, in addition to exercising any other rights and remedies available to it under applicable law, do any one or more of the following (if, within fifteen (15) Business Days of receipt by the Lessee of an Event of Default Notice (as defined in Section 29(l)), the Lessee has not made a request to purchase all Parcels of Property and Units of Equipment under Section 29(l) or, if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of receipt of the Event of Default Notice such purchase in full compliance with Section 29(l)):then:
(a) Terminate CELI may, at its option and without notice, declare the lease unpaid balance of any or all Property of the Obligations immediately due and payable and this Agreement and any or Equipment leased hereunder by written notice to all of the Lessee, subject to the maximum amount the Lessor shall be entitled to recover from the Lessee, as described Obligations in paragraph (f) of this Section 19default;
(b) Whether All payments received by Debtor under or not the lease of in connection with any Property or Equipment is terminated, take immediate possession of and remove any or all Equipment and other equipment or property of the Lessor Collateral shall be held by Debtor in trust for CELI, shall be segregated from other funds of Debtor and shall forthwith upon receipt by Debtor be turned over to CELI in the possession same form as received by Debtor (duly endorsed by Debtor to CELI, if required). Any and all such payments so received by CELI (whether from Debtor or otherwise) may, in the sole discretion of CELI, be held by CELI, or then or at any time thereafter be applied in whole or in part by CELI against, all or any part of the Lessee, wherever situated, and for Obligations in such purpose, enter upon any premises without liability to the Lessee for so doing, provided that the taking of possession of any Property or Equipment shall take place in a commercially reasonable mannerorder as CELI may elect;
(c) Whether CELI shall have the rights and remedies of a secured party under this Agreement, under any other instrument or not any action has been taken under paragraph (i) agreement securing, evidencing or (ii) above, sell any Property or Equipment (free of or subject relating to the rights Obligations and under the UCC as adopted in the state where CELI’s principal office is located or other applicable laws. Without limiting the generality of the Lessee or any other person under this Lease and with or without foregoing, CELI shall have the concurrence or request right to take possession of the Lessee)Collateral in full or in part and for that purpose CELI may enter upon any premises on which the Collateral may be situated and remove the Collateral therefrom;
(d) HoldWithout demand of performance or other demand, useadvertisement or notice of any kind (except the notice(s) specified below regarding the time and place of public sale or disposition or time after which a private sale or disposition is to occur) to Debtor, occupyany Obligor or any other person or entity (all and each of which demands, operateadvertisements and/or notices are hereby expressly waived), removeCELI may forthwith collect, lease receive, appropriate and realize upon the Collateral, in full or keep idle in any part thereof, may abandon, not claim or not take possession of any Collateral, and/or may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale(s) at any of CELI’s offices or elsewhere at such price(s) as CELI may determine, for cash or on credit or for future delivery without assumption of any credit risk. CELI shall have the right upon any public sale(s), and, to the extent permitted by law, upon any such private sale(s), to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption of Debtor;
(e) Debtor, at CELI’s request, will assemble the Collateral and make it available to CELI at such place(s) as CELI may reasonably select, whether at Debtor’s place(s) of business and/or the Location of Collateral or elsewhere. Debtor further agrees to allow CELI to use or occupy Debtor’s place(s) of business and/or Location of Collateral, without charge, for the purpose of effecting CELI’s remedies in respect to the Collateral;
(f) CELI shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any or all Property of the Collateral or Equipment as the Lessor in its sole discretion may determine, without any duty to account way relating to the Lessee with respect rights of CELI hereunder, including attorneys’ fees and legal expenses, to the payment in whole or in part of the Obligations, in such order as CELI may elect, and only after or applying over such net proceeds and after the payment by CELI of any such action other amount required by any provision of law, need CELI account for the surplus, if any, to Debtor;
(g) To the extent permitted by applicable law, Debtor waives all claims, damages and demands against CELI arising out of the repossession, retention, sale or inaction, except that disposition of the Lessor Collateral;
(h) Debtor agrees that any profit it derives from CELI need not give more than ten (10) calendar days’ notice, addressed to Debtor at Debtor’s mailing address set forth above, of the occupation or use time and place of any Property public sale or Equipment while exercising its rights under this Section 19 will be applied to reduce of the Accrued Default Obligationstime after which a private sale may take place and that such notice is reasonable notification of such matters; and
(ei) Exercise Debtor shall remain liable for any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce deficiency if the terms hereof or to recover damages for the breach hereof.
31.2 Suit or suits for the recovery proceeds of any default in the payment of any sum due hereunder sate or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation.
31.3 The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any disposition of the terms, covenants or conditions of this Lease, shall not be deemed Collateral are insufficient to be a waiver of any provision of this Lease.
31.4 No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Term or the Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper 55 57 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Property, the Lessor 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 and operation of any Unit of Equipment or the use, operation and occupation of any Parcel of Property, or at the election of the Lessor, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligations. Acceptance of the keys to any Parcel of Property, or any similar act, by the Lessor, or any agent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel of Property unless the Lessor shall consent thereto in writing.
31.5 The Lessee hereby expressly confirms that, in any event, including after any Event of Default, and notwithstanding any termination of this Lease or reentry or repossession by the Lessor, the Lessee shall continue to be liable for, and the Lessor may recover from the Lessee, (i) all Basic Rent accrued to the date of payment, (ii) any Additional Rent owing with respect to all Property or Equipment leased by the Lessee, (iii) pay all amounts payable hereunder or under any other Operative Document and (iv) all losses, damages, costs and expenses incurred (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, including, in the event of a sale by the Lessor of any Property or Equipment pursuant to this Section 19, all costs and expenses associated with such sale. The amounts payable in clauses (i) through (iv) above are hereinafter sometimes referred to as the "Accrued Default Obligations". Accrued Default Obligations shall not include any damages for loss of profits arising from the prospective use, operation and occupancy by parties other than the Lessee of any Property or Equipment or the anticipated receipt of income therefrom subsequent to the Lessee's possession of such Property and Equipmentwhich CELI is entitled.
Appears in 1 contract
Sources: Security Agreement (Amedica Corp)
Rights Upon Default. 31.1 Upon the occurrence and continuation of any Event of Default Default, the Lessor may, in addition to exercising any other rights and remedies available to it under applicable law, may do any one or more of the following (if, within fifteen subject to the provisions of paragraph (15b) Business Days of receipt by the Lessee Section 13 of an Event of Default Notice (as defined in Section 29(l)), the Lessee has not made a request to purchase all Parcels of Property and Units of Equipment under Section 29(l) or, if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of receipt of the Event of Default Notice such purchase in full compliance with Section 29(l)this Lease):
(ai) Terminate the lease of any or all Property or Equipment leased hereunder by written notice to the Lessee, subject to the maximum amount the Lessor shall be entitled to recover from the Lessee, as described in paragraph (f) of this Section 19Project hereunder;
(bii) Whether or not the lease of any Property or Equipment the Project is terminated, take immediate possession of the Project and remove any or all Equipment and other equipment or property of the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any premises the Premises without liability to the Lessee for so doing, provided that the taking of possession of any Property or Equipment shall take place in a commercially reasonable manner;
(ciii) Whether or not any action has been taken under paragraph clause (i) or (ii) above, sell any Property or Equipment the Project (free of or subject to the rights of the Lessee or any other person under this Lease and with or without the concurrence or request of the Lessee);
(div) Hold, use, occupy, operate, repair, remove, lease or keep idle any or all Property or Equipment the Project as the Lessor in its sole discretion may determine, without any duty to account to the Lessee mitigate damages with respect to any such action or inaction, except that the Lessor agrees that inaction or with respect to any profit it derives from the occupation or use of any Property or Equipment while exercising its rights under this Section 19 will be applied to reduce the Accrued Default Obligationsproceeds thereof; and
(ev) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof.
31.2 . Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation.
31.3 . The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease.
31.4 . No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Lease Term or the Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper 55 57 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Propertythe Project, the Lessor 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 and operation of any Unit of Equipment or the use, operation and occupation of any Parcel of Property, or at the election of the Lessor, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligations. Acceptance of the keys to any Parcel of Propertythe Project, or any similar act, by the Lessor, or any agent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel of Property the Project unless the Lessor and Assignee shall consent thereto in writing.
31.5 The Lessee hereby expressly confirms that, in any event, including after . After any Event of Default, and notwithstanding any termination of this Lease or reentry or repossession by the Lessor, the Lessee shall continue to be liable for, and the Lessor may recover from the Lessee, (i) all Basic Rent payable and the Variable Component of Basic Rent accrued to through the date of paymenttermination of this Lease, (ii) any Additional Rent owing with respect to all Property or Equipment leased by the Lesseeowing, (iii) all amounts payable hereunder or under any other Operative Document pursuant to Sections 11, 24 and 26 hereof, (iv) all losses, damages, costs and expenses incurred (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or transfer taxestaxes and all costs and expenses related to (x) the conduct of investigations, studies, sampling and/or testing of the Premises and (y) the taking of any action, including, without limitation, any remedial measures or removal with respect to the Premises, each as required by an Assignee pursuant to the terms of a Financing Arrangement) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, includingincluding without limitation, in the event of a sale by the Lessor of any Property or Equipment its interest in the Project pursuant to this Section 19, all costs and expenses associated with such salesale and (v) all other amounts owing hereunder (after taking into account the application under the Financing Arrangements of any payments made under this Section 19) excluding, in all cases, costs or expenses included in Adjusted Acquisition Cost. The amounts payable in clauses (i) through (ivv) above are hereinafter sometimes referred to as the "Accrued Default Obligations". Accrued Default Obligations shall not include any damages for loss of profits arising from the prospective use, operation and occupancy by parties other than the Lessee of any Property or Equipment or the anticipated receipt of income therefrom subsequent to the Lessee's possession of such Property and Equipment.
Appears in 1 contract
Rights Upon Default. 31.1 (a) Upon the occurrence and continuation of any Event of Default the Lessor may, in addition to exercising any other rights and remedies available to it under applicable law, do any one or more of the following (if, within fifteen (15) Business Days of receipt by the Lessee of an Event of Default Notice (as defined in Section 29(l)), the Lessee has not made a request to purchase all Parcels of Property and Units of Equipment under Section 29(l) or, if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of receipt of the Event of Default Notice such purchase in full compliance with Section 29(l)):
(ai) Terminate the lease of any or all Property or Equipment leased hereunder by written notice to the Lessee, subject to the maximum amount the Lessor shall be entitled to recover from the Lessee, as described in paragraph (f) of this Section 19;
(bii) Whether or not the lease of any Property or Equipment is terminated, take immediate possession of and remove any or all Equipment and other equipment or property of the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any premises without liability to the Lessee for so doing, ; provided that the taking of possession of any Property or Equipment shall take place in a commercially reasonable manner;
(ciii) Whether or not any action has been taken under paragraph (i) or (ii) above, sell any Property or Equipment (free of or subject to the rights of the Lessee or any other person under this Lease and with or without the concurrence or request of the Lessee);
(div) Hold, use, occupy, operate, remove, lease or keep idle any or all Property or Equipment as the Lessor in its sole discretion may determine, without any duty to account to the Lessee with respect to any such action or inaction, except that the Lessor agrees that any profit it derives from the occupation or use of any Property or Equipment while exercising its rights under this Section 19 will be applied to reduce the Accrued Default Obligations; and
(ev) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof.
31.2 (b) Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation.
31.3 (c) The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease.
31.4 No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Term or the Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper 55 57 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Property, the Lessor 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 and operation of any Unit of Equipment or the use, operation and occupation of any Parcel of Property, or at the election of the Lessor, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligations. Acceptance of the keys to any Parcel of Property, or any similar act, by the Lessor, or any agent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel of Property unless the Lessor shall consent thereto in writing.
31.5 The Lessee hereby expressly confirms that, in any event, including after any Event of Default, and notwithstanding any termination of this Lease or reentry or repossession by the Lessor, the Lessee shall continue to be liable for, and the Lessor may recover from the Lessee, (i) all Basic Rent accrued to the date of payment, (ii) any Additional Rent owing with respect to all Property or Equipment leased by the Lessee, (iii) all amounts payable hereunder or under any other Operative Document and (iv) all losses, damages, costs and expenses incurred (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, including, in the event of a sale by the Lessor of any Property or Equipment pursuant to this Section 19, all costs and expenses associated with such sale. The amounts payable in clauses (i) through (iv) above are hereinafter sometimes referred to as the "Accrued Default Obligations". Accrued Default Obligations shall not include any damages for loss of profits arising from the prospective use, operation and occupancy by parties other than the Lessee of any Property or Equipment or the anticipated receipt of income therefrom subsequent to the Lessee's possession of such Property and Equipment.of
Appears in 1 contract
Sources: Lease Agreement (Arcadian Corp)
Rights Upon Default. 31.1 Upon the occurrence and continuation of any Event of Default, the Agent may in its discretion, and upon the direction of the Lessors shall, by written notice to the Lessee, declare this Lease to be in default, and (except in the case of an Event of Default the Lessor mayunder Section 20(f), in addition to exercising which case the remedies in paragraphs (a), (e) and (f) below shall become available and effective immediately and automatically, without notice, presentment, demand, protest or other action of any other rights and remedies available to it under applicable law, kind all of which are hereby expressly waived by Lessee) do any one or more of the following (ifas the Agent in its sole discretion shall determine, within fifteen (15) Business Days without limiting any other right or remedy the Agent may have on account of receipt by the Lessee of an such Event of Default Notice (as defined in Section 29(l)), the Lessee has not made a request to purchase all Parcels of Property and Units of Equipment under Section 29(l) or, if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of receipt of the Event of Default Notice such purchase in full compliance with Section 29(l)):Default:
(a) Terminate the lease of any or all Property or Equipment leased hereunder The Agent may, by written notice to the Lessee, subject rescind or terminate this Lease as of the date specified in such notice, at which time the Lease Investment Balance (together with all accrued and unpaid Base Rent, Additional Base Rent and Additional Rent and all other amounts to which Agent (on behalf of the maximum amount the Lessor Lessors) is entitled at law, in equity or otherwise) shall be entitled immediately accelerated, due and payable; however, (i) no reletting, reentry or taking of possession of the Property (or any portion thereof) by the Agent will be construed as an election on the Agent's part to recover from terminate this Lease unless a written notice of such intention is given to the Lessee, as described (ii) notwithstanding any reletting, reentry or taking of possession, the Agent may at any time thereafter elect to terminate this Lease for a continuing Event of Default and (iii) no act or thing done by the Agent or any of its agents, representatives or employees and no agreement accepting a surrender of the Property shall be valid unless the same be made in paragraph (f) of this Section 19;writing and executed by the Agent.
(b) Whether or The Agent may (i) demand that the Lessee, and the Lessee shall upon the written demand of the Agent, return possession of the Property promptly to the Agent in the manner and condition required by, and otherwise in accordance with all of the provisions of, Section 10 and Section 18 hereof as if the Property were being returned at the end of the Lease Term, and the Agent shall not be liable for the lease reimbursement of the Lessee for any costs and expenses incurred by the Lessee in connection therewith and (ii) without prejudice to any other remedy which the Agent may have for possession of the Property, and to the extent and in the manner permitted by Applicable Law, enter upon the Property or Equipment is terminated, and take immediate possession of and remove any or all Equipment and other equipment or property of (to the Lessor in the possession exclusion of the Lessee) the Property or any part thereof and expel or remove the Lessee and any other Person who may be occupying the Property, wherever situatedby summary proceedings or otherwise, and for such purpose, enter upon any premises all without liability to the Lessee for so doing, provided that the or by reason of such entry or taking of possession possession, whether for the restoration of damage to property caused by such taking or otherwise and, in addition to the Agent's other damages, the Lessee shall be responsible for all costs and expenses incurred by the Agent in connection with any reletting, including, without limitation, reasonable brokers' fees and all costs of any Property alterations or Equipment shall take place in a commercially reasonable manner;repairs made by the Agent.
(c) Whether or not any action has been taken under paragraph The Agent may
(i) sell all or (ii) above, sell any part of the Property or Equipment (at public sale free and clear of or subject to the any rights of the Lessee or any other person under this Lease and with or without the concurrence or request of the Lessee);
(d) Hold, use, occupy, operate, remove, lease or keep idle any or all Property or Equipment as the Lessor in its sole discretion may determine, without any duty to account to the Lessee with respect to any such action or inaction, inaction with respect thereto (except that to the Lessor agrees that any profit it derives from extent required by clause (ii) below if the occupation or use of any Property or Equipment while exercising Agent shall elect to exercise its rights under this Section 19 will thereunder) in which event the Lessee's obligation to pay Base Rent and Additional Base Rent hereunder for periods commencing after the date of such sale shall be applied to reduce terminated or proportionately reduced, as the Accrued Default Obligationscase may be; and
(eii) Exercise if the Agent shall so elect, demand that the Lessee pay to the Agent, and the Lessee shall pay to the Agent, on the date of such sale, as liquidated damages for loss of a bargain and not as a penalty (THE PARTIES AGREEING THAT THE AGENT'S ACTUAL DAMAGES WOULD BE DIFFICULT TO PREDICT, BUT THE AFOREMENTIONED LIQUIDATED DAMAGES REPRESENT A REASONABLE APPROXIMATION OF SUCH AMOUNT) (in lieu of Base Rent or Additional Base Rent due for periods commencing on or after the Rent Payment Date coinciding with such date of sale (or, if the sale date is not a Rent Payment Date, the Rent Payment Date next preceding the date of such sale)), an amount equal to (A) the excess, if any, of (1) the Lease Investment Balance calculated as of such Rent Payment Date (together with all Base Rent and Additional Rent due and unpaid to and including such Rent Payment Date), over (2) the net proceeds of such sale (that is, after deducting all costs and expenses incurred by the Agent 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 costs); plus (B) interest at the Overdue Rate on the foregoing amount from such Rent Payment Date until the date of payment.
(d) The Agent may, at its option, elect not to terminate this Lease and continue to collect all Base Rent, Additional Base Rent, and all other right or remedy which may be available under applicable law amounts due the Agent and in general proceed by appropriate judicial proceedings, either at law or in equity, to the Lessors (together with all costs of collection) and enforce the terms hereof Lessee's obligations under this Lease as and when the same become due, or are to recover damages for the breach hereof.
31.2 Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time performed, and at the Lessor's electionoption of the Agent, and nothing herein contained shall be deemed to require upon any abandonment of the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default Property by the Lessee or no such termination or cancellation.
31.3 The receipt re-entry of any payments under same by the Agent, the Agent may, in its sole and absolute discretion, elect not to terminate this Lease and may make the necessary repairs in order to relet the Property, and relet the Property or any part thereof for such term or terms (which may be for a long term extending beyond the Lease Term) and at such rental or rentals and upon such other terms and conditions as the Agent in its reasonable discretion may deem advisable; and upon each such reletting all rentals actually received by the Lessor Agent from such reletting shall be applied to the Lessee's obligations hereunder and the other Lease Documents in such order, proportion and priority as the Agent may elect in the Agent's sole and absolute discretion. If such rentals received from such reletting during any period are less than the Base Rent and Additional Base Rent with knowledge of any breach of this Lease respect to such Property to be paid during that period by the Lessee hereunder, the Lessee shall pay any deficiency, as calculated by the Agent, to the Agent on the next Rent Payment Date.
(e) Unless the Property has been sold, the Agent may, whether or not the Agent shall have exercised or shall thereafter at any time exercise any of its rights under paragraph (b), (c) or (d) of this Section 21 with respect to the Property or portions thereof, demand, by written notice to the Lessee specifying a date (a "TERMINATION DATE") not earlier than 10 Business Days after the date of such notice, that the Lessee purchase, on such Termination Date, the Property (or the remaining portion thereof) in accordance with the provisions of Section 14(d); provided, however, that no such written notice shall be required upon the occurrence of any default by Event of Default in clause (f) of Section 20.
(f) Separate suits may be brought to collect any such damages for any period(s), and such suits shall not in any manner prejudice the Agent's right to collect any such damages for any subsequent period(s), or the Agent may defer any such suit until after the expiration of the Lease Term, in which event such suit shall be deemed not to have accrued until the expiration of the Lease Term. In connection with the foregoing, the Agent (on behalf of the Lessors) is hereby granted the remedy specified in California Civil Code Section 1951.4 (Agent, on behalf of Lessors, may continue Lease in effect after Lessee's breach and abandonment and recover rent as it becomes due, if Lessee has the right to sublet or assign, subject only to reasonable limitations).
(g) The Agent may retain and apply against the Agent's damages all sums which the Agent would, absent such Event of Default, be required to pay to, or turn over to, the Lessee in pursuant to the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision terms of this Lease.
31.4 No receipt (h) The Agent, as a matter of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Term or the Renewal Term, or affect any right and without notice theretofore given to the Lessee, or operate as a waiver and without regard to the value of the right Property or the solvency of the Lessor Lessee, shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of the Property, and the Lessee hereby irrevocably consents to any such appointment. Any such receiver(s) shall have all of the usual powers and duties of receivers in like or similar cases and all of the powers and duties of the Agent in case of entry, and shall continue as such and exercise such powers until the date of confirmation of the sale of the Property unless such receivership is sooner terminated. To the maximum extent permitted by law, the Lessee hereby waives the benefit of any appraisement, valuation, stay, extension, reinstatement and redemption laws now or hereafter in force and all rights of marshalling in the event of any sale of the Property or any interest therein. The Agent shall be entitled to enforce the payment of Basic Rent the indebtedness and performance of the obligations secured hereby and to exercise all rights and powers under this instrument or Additional Rent under any of the other Lease Documents or other charges payable hereunderagreement or any laws now or hereafter in force, notwithstanding some or operate as a waiver all of the obligations secured hereby may now or hereafter be otherwise secured, whether by mortgage, deed of trust, security agreement, pledge, lien, assignment or otherwise. Neither the acceptance of this instrument nor its enforcement, shall prejudice or in any manner affect the Agent's right of to realize upon or enforce any other security now or hereafter held by the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper 55 57 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY suitAgent, action, proceedings or remedy; it being agreed that, after that the service of notice Agent shall be entitled to terminate enforce this instrument and any other security now or cancel this Lease, hereafter held by the Agent in such order and manner as the expiration of Agent may determine in its absolute discretion. No remedy herein conferred upon or reserved to the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or Agent is intended to be exclusive of any other remedyremedy herein or by law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy given hereunder or after a final ordernow or hereafter existing at law or in equity or by statute. Every power or remedy given by any of the Lease Documents to the Agent or to which it may otherwise be entitled, warrant may be exercised, concurrently or judgment for independently, from time to time and as often as may be deemed expedient by the possession Agent and the exercise in whole or in part by the Agent or any Lessor of any Unit one or more of Equipment such remedies shall not preclude the simultaneous or Parcel of Property, later exercise by the Agent or any Lessor 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 and operation of any Unit of Equipment or all suchother remedies. In no event shall the useAgent, operation and occupation of any Parcel of Property, or at in the election exercise of the Lessor, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligations. Acceptance of the keys to any Parcel of Property, or any similar act, by the Lessor, or any agent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel of Property unless the Lessor shall consent thereto remedies provided in writing.
31.5 The Lessee hereby expressly confirms that, in any event, including after any Event of Default, and notwithstanding any termination of this Lease or reentry or repossession by the Lessor, the Lessee shall continue to be liable for, and the Lessor may recover from the Lessee, (i) all Basic Rent accrued to the date of payment, (ii) any Additional Rent owing with respect to all Property or Equipment leased by the Lessee, (iii) all amounts payable hereunder or under any other Operative Document and (iv) all losses, damages, costs and expenses incurred instrument (including, without limitation, reasonable attorneys' fees in connection with the assignment of rents to Agent, or the appointment of a receiver and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason entry of such Event receiver on to all or any part of Default the Property), be deemed a "mortgagee in possession," and the Agent shall not in any way be made liable for any act, either of commission or omission, in connection with the exercise of such remedies. An action of mortgage foreclosure or trustee's sale as now provided or hereafter prescribed by law, may forthwith be commenced and prosecuted to judgment, execution and sale, for the Lessorcollection of the whole amount of the Lease Investment Balance, together with all fees, costs and expenses of such proceedings, including a reasonable attorney's remedies fees. And all errors in such proceedings, together with respect theretoany stays of or exemptions from execution, includingor extensions of time of payment, which may be given by any Applicable Law now in force, or which may be enacted hereafter, are hereby forever waived and released. If, pursuant to the event of a sale exercise by the Lessor of any Property or Equipment its remedies pursuant to this Section 1921, the Lease Investment Balance and all costs other amounts due and expenses associated with such sale. The amounts payable in clauses (i) through (iv) above are hereinafter sometimes referred to as the "Accrued Default Obligations". Accrued Default Obligations shall not include any damages for loss of profits arising owing from the prospective useLessee under this Lease and the other Lease Documents have been paid in full, operation and occupancy by parties other than then the Agent shall (a) remit to the Lessee any excess amounts received by the Agent; and (b) convey the Property by quitclaim deed to Lessee on an "as-is, where is" basis, without any representation or warranty of any Property kind, express or Equipment or the anticipated receipt of income therefrom subsequent implied, whatever title to the Lessee's possession of such Property and Equipmentit may have (except that the Agent shall warrant the Agent Representations).
Appears in 1 contract
Sources: Purchase and Master Lease Agreement (Novellus Systems Inc)
Rights Upon Default. 31.1 Upon the occurrence and continuation of any Event of Default the Lessor may, in addition to exercising any other rights and remedies available to it under applicable law, may do any one or more of the following (if, within fifteen (15) Business Days of receipt by the Lessee of an Event of Default Notice (as defined in Section 29(l)), the Lessee has not made a request to purchase all Parcels of Property and Units of Equipment under Section 29(l) or, if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of receipt of the Event of Default Notice such purchase in full compliance with Section 29(l)):following:
(a) Terminate the lease of any or all Property or Equipment leased hereunder by written notice and require payment of an amount equal to the Lessee, subject to aggregate outstanding principal amount of all notes outstanding under the maximum Financing Agreement plus accrued interest and fees plus the stated amount of the equity investment made by the Lessor shall in all such Property, plus any accrued and unpaid return which would be entitled payable, if the Lease had been in effect through the date of sale, to recover any general or limited partner of Lessor if Lessor had sufficient funds therefor, plus all other amounts owing under the Financing Agreement and Trust Agreement plus any unpaid fees or expenses of the Lessor and out-of-pocket costs including taxes (other than any such taxes generally excluded from the Lessee's indemnification obligations pursuant to SECTION 11(C) hereof), as described in paragraph (f) legal and other expenses of the Lessor associated directly or indirectly with the purchase of the Property or terminations of this Section 19Lease in each case for which the Lessee is liable under this Lease or the Acquisition and Construction Agreement (the "TERMINATION PAYMENT"). The Termination Payment will be allocated between the Lessees pro rata according to the Acquisition Cost of the Units leased by each Lessee under this Agreement;
(b) Whether or not the lease of any Property or Equipment is terminated, take immediate possession of and remove any or all Equipment Property and other equipment or property of the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any premises without liability to the Lessee for so doing, provided that the taking of possession of any Property or Equipment shall take place in a commercially reasonable manner;
(c) Whether or not any action has been taken under paragraph (ia) or (iib) above, sell any Property or Equipment (free of or subject to the rights of the Lessee or any other person under this Lease and with or without the concurrence or request of the Lessee);
(d) Hold, use, occupy, operate, remove, lease lease, sublease or keep idle any or all Property or Equipment as the Lessor in its sole discretion may determine, without any duty to account to the Lessee with respect to any such action or inaction, except that the Lessor agrees that inaction or for any profit it derives from the occupation or use of any Property or Equipment while exercising its rights under this Section 19 will be applied to reduce the Accrued Default Obligationsproceeds thereof; and
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof.
31.2 Suit or suits . Notwithstanding anything to the contrary contained herein, if the sole basis for the recovery occurrence of an Event of Default is the occurrence of a Material Adverse Effect unrelated to any default misrepresentation or failure to perform a covenant herein or in any other agreement, then the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default amount payable by the Lessee or no pursuant to this SECTION 19 shall be the Residual Guaranty Payment for all Units plus all accrued and unpaid Basic Rent and the amounts referred to in the sixth to last paragraph of this SECTION 19; provided, further, that the failure to pay such termination or cancellation.
31.3 Residual Guaranty Payment shall be an immediate Event of Default hereunder and the Lessee shall be required to pay the full Termination Payment upon such failure; The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease.
31.4 . No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Lease Term or the Renewal any Extended Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper 55 57 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY suit, action, proceedings or remedy; , it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Property, the Lessor 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 and operation of any Unit of Equipment or the use, operation and occupation of any Parcel of Property, or at the election of the Lessor, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligationshereunder. Acceptance of the keys to any Parcel Unit of Property, or any similar act, by the Lessor, or any agent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel Unit of Property unless the Lessor shall consent thereto in writing.
31.5 The Lessee hereby expressly confirms that, in any event, including after . After any Event of Default, and notwithstanding any termination of this Lease or reentry or repossession by the Lessor, the Lessee shall continue to be liable for, and the Lessor may recover from the Lessee, (i) all Basic Rent accrued to the date of payment, (ii) any Additional Rent owing with respect to all Property or Equipment leased by the Lessee, (iii) all amounts payable hereunder or under any other Operative Document pursuant to SECTIONS 11, 24 and 26 hereof and (iv) all losses, damages, costs and expenses incurred (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, including, in the event of a sale by the Lessor of any Property or Equipment pursuant to this Section SECTION 19, all costs and expenses associated with such sale. The amounts payable in clauses (i) through (iv) above are hereinafter sometimes referred to as the "ACCRUED DEFAULT OBLIGATIONS". After an Event of Default, the Lessor may sell its interest in any Property upon any terms that the Lessor deems satisfactory, free of any rights of the Lessee or any Person claiming through or under the Lessee. In the event of any such sale, in addition to the Accrued Default Obligations", the Lessor shall be entitled to recover from the Lessee, as liquidated damages, and not as a penalty, an amount equal to the Acquisition Cost of any Property so sold, minus the proceeds of such sale received by the Lessor. Proceeds of sale received by the Lessor in excess of the Acquisition Cost of such Property sold shall be credited against the Accrued Default Obligations the Lessee is required to pay under this SECTION 19. If such proceeds exceed the Accrued Default Obligations, or,the Lessee is required to pay under this SECTION 19. If such proceeds exceed the Accrued Default Obligations, or, if the Lessee has paid all amounts required to be paid under this SECTION 19, such excess shall be paid by the Lessor to the Lessee. As an alternative to any such sale, or if the Lessee converts any Property after an Event of Default, or if such Property is lost or destroyed, in addition to the Accrued Default Obligations, the Lessor may cause the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not include any damages for loss as a penalty, an amount equal to the Acquisition Cost of profits arising from such Property. In the prospective useevent the Lessor receives payment pursuant to the previous sentence of this paragraph, operation the Lessor shall transfer all of the Lessor's right, title and occupancy interest in and to the Property to the Lessee. In the event of a sale pursuant to this SECTION 19, upon receipt by parties the Lessor of the amounts payable hereunder, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Property to the Lessee or purchaser other than the Lessee, as the case may be. With respect to the termination of this Lease as to any Unit of Property as a result of an Event of Default, the Lessee hereby waives service of any notice of intention to re-enter. The Lessee hereby waives any and all rights to recover or regain possession of any Unit of Property or to reinstate this Lease as permitted or provided by or under any statute, law or decision now or hereafter in force and effect. Notwithstanding anything to the contrary set forth in this SECTION 19, upon the payment in full by the Lessee of the Termination Payment and all Accrued Default Obligations, title to all Property and the Lessor's rights under any Property or Equipment or Ground Leases shall automatically be deemed to vest in the anticipated Lessee and the Lessor shall, following the receipt of income therefrom subsequent to all such amounts, execute, at the Lessee's possession cost and expense, such bills of such Property sale and Equipmentother title documents, on an as- is, where-is, basis, as are reasonably requested by the Lessee.
Appears in 1 contract
Rights Upon Default. 31.1 Upon the occurrence and continuation of any Event of Default Brazos or any Assignee may in its discretion declare this Facilities Lease to be in default and do, to the Lessor may, in addition to exercising any other rights and remedies available to it under extent permitted by applicable law, do any one or more of the following (if, within fifteen (15) Business Days of receipt by the Lessee of an Event of Default Notice (as defined in Section 29(l)), the Lessee has not made a request to purchase all Parcels of Property and Units of Equipment under Section 29(l) or, if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of receipt of the Event of Default Notice such purchase in full compliance with Section 29(l)):following:
(a) Terminate the lease of this Facilities Lease as to any or all Property or Equipment Facilities leased hereunder by written notice to the Lessee, subject to the maximum amount the Lessor shall be entitled to recover from the Lessee, as described in paragraph (f) of this Section 19hereunder;
(b) Whether or not the lease of this Facilities Lease as to any Property or Equipment Facility is terminated, take immediate possession of and remove any or all Equipment FF&E and other equipment or property of the Lessor Brazos in the possession of the Lessee, wherever situated, and for such purpose, enter upon any premises without liability to the Lessee for so doing, provided that the taking of possession of any Property or Equipment shall take place in a commercially reasonable manner;
(c) Whether or not any action has been taken under paragraph (ia) or (iib) above, sell any Property Facility or Equipment Brazos' interest in any Acquired Facilities Lease (free of or subject to the rights of the Lessee or any other person under this Lease and with or without the concurrence or request of the Lessee);
(d) Hold, use, occupy, operate, remove, lease or keep idle any or all Property or Equipment Facilities as the Lessor Brazos in its sole discretion may determine, without any duty to account to the Lessee with respect to any such action or inaction, except that the Lessor agrees that inaction or for any profit it derives from the occupation or use of any Property or Equipment while exercising its rights under this Section 19 will be applied to reduce the Accrued Default Obligations; andproceeds thereof;
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof.; and
31.2 (f) Declare an Event of Facility Termination as to any or all Facilities and/or FF&E 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 the Lessor Brazos from time to time at the Lessor's Brazos' election, and nothing herein contained shall be deemed to require the Lessor 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 the Lessee or no such termination or cancellation.
31.3 . The receipt of any payments under this Facilities Lease by the Lessor Brazos with knowledge of any breach of this Facilities Lease by the Lessee or of any default by the Lessee 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.
31.4 . No receipt of moneys by the Lessor Brazos from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Lease Term or the any Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor 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 the Lessor Brazos to recover possession of any Unit of Equipment Facility or Parcel of Property FF&E by proper 55 57 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY 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 any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Propertythe Facility, the Lessor 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 and operation of any Unit of Equipment or the use, operation and occupation of any Parcel of Propertythe Facility, or at the election of the LessorBrazos, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligationshereunder. Acceptance of the keys to any Parcel of PropertyFacility, or any similar act, by the LessorBrazos, or any agent or employee of the Lessoremployee, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel of Property Facility unless the Lessor Brazos shall consent thereto in writing.
31.5 The Lessee hereby expressly confirms that. If, in any event, including after any an Event of DefaultDefault shall have occurred, Lessee fails to surrender promptly after written request by Brazos or converts or destroys any Facility, Lessee shall be liable to Brazos for all Basic Rent and Additional Rent then due and payable with respect to such Facility, all other amounts payable under this Facilities Lease, the Acquisition Cost of such Facility 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 Facility, notwithstanding any termination of this Lease or reentry or repossession by the LessorFacilities Lease, the Lessee shall continue to be liable for, for and the Lessor Brazos may recover from the Lessee, (i) Lessee all Basic Rent accrued to the date of payment, (ii) and any Additional Rent owing with respect to such Facility to the date of such repossession, all Property or Equipment leased by the Lessee, (iii) all other amounts payable hereunder or under any other Operative Document this Facilities Lease, and (iv) all losses, damages, costs damages and expenses incurred (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor Brazos by reason of such Event of Default and the exercise of the Lessor's Brazos' remedies with respect thereto. In addition, includingBrazos may sell Brazos' interest in any Facility upon any terms that Brazos deems satisfactory, in free of any rights of Lessee or any person claiming through or under Lessee. 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 Lessee, as liquidated damages, and not as a sale by penalty, an amount equal to the Lessor Acquisition Cost of any Property 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 Equipment pursuant to this Section 19, all other costs and 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 Lessee. The In lieu of such sale, in addition to the amounts payable under the first sentence of this paragraph, Brazos may cause Lessee to pay to Brazos, and Lessee 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 clauses full of all such amounts Brazos shall transfer all of Brazos' right, title and interest in and to the Facility to Lessee. Brazos may (i) through sell all or any part of the Facility or FF&E 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 (ivexcept to the extent required by clause (ii) above are hereinafter sometimes referred 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 "Accrued Default Obligations". Accrued Default Obligations case may be; and (ii) if Brazos shall not include any 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 profits arising 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 (1) the Acquisition Cost calculated as of such Basic Rent Payment Date (including all Rent due and unpaid to and including such Basic Rent Payment Date), over (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 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 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 Facilities 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 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 recorder of the county or counties where the Facility 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 Facility, to have and to hold the Facility, together with all and singularly the rights, hereditaments, and 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 occurrence 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 prospective useAgent or Assignees, operation and occupancy to sell the Facility, or any part thereof, to the highest bidder or bidders for cash or credit, as directed by parties other than Brazos, acting upon a request from the Lessee Agent or Assignees, at the location at the county courthouse specified by the commissioner's court in the county in the state wherein the Facility 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 any Property or Equipment or the anticipated receipt of income therefrom subsequent such sale to the Lessee's possession ; provided, that if the Facility is situated in more than one county, then such sale of the Facility, or part thereof, may be made in any county in the state wherein any part of the Facility then subject to the lien hereof is situated. Any such sale shall be made at public outcry between the hours of ten o'clock (10:00) A.M. and four o'clock (4:00) P.M. on the first (1st) Tuesday in any month. Written or printed notice of such Property sale shall be posted at the courthouse door in the county, or if more than one, then in each of the counties, wherein the Facility then subject to the lien hereof is situated. Such notice shall designate the county where the Facility, or part thereof, will be sold and Equipmentthe 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 Facility 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 obligations secured hereby according to the records of the 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 Facility, or part thereof, so sold to the purchaser or purchasers with general warranty of title by Brazos. The sale of a part of the Facility shall not exhaust the power of sale, but sales may be made from time to time until the Acquisition Cost and other obligations secured hereby are paid and performed in full. It shall not be necessary to have present or to exhibit at any such sale any of the personal property. Upon the occurrence and during the continuance of a Lease Event of Default, Brazos, in lieu of or in addition to exercising any 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 sale of the Facility, 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 Facility, or for the enforcement of any other appropriate legal or equitable remedy. Sales pursuant to this SECTION 13.2, 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 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 FF&E, and it is expressly agreed that if Brazos should proceed to dispose of or utilize the FF&E, or any part thereof, in accordance with the provisions of said Uniform Commercial Code, ten (10) days' notice by Brazos to Lessee shall be deemed to be reasonable notice of any such provision requiring such notice. Any sale of 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 or otherwise required hereunder. Brazos shall incur no liability as a result of the sale of the FF&E, or any part thereof, at any private or public sale. Lessee hereby waives, to the extent permitted by law, any claims against Brazos arising by reason of the fact that the price at which the 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 Lessee to Brazos hereunder, even if Brazos accepts the first offer received and does not offer the FF&E to more than one possible purchaser. No remedy referred to in this SECTION 13.2 is intended to be exclusive, 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 preclude 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.
Appears in 1 contract
Sources: Facilities Lease Agreement (Monro Muffler Brake Inc)
Rights Upon Default. 31.1 Upon In addition to all other rights and remedies granted to it under this Agreement, the occurrence Credit Agreement, the other Loan Documents and continuation under any other instrument or agreement securing, evidencing or relating to any of the Obligations, if any Event of Default the Lessor mayshall have occurred and be continuing, in addition to exercising any other Agent may exercise all rights and remedies available of a secured party under the Code. Without limiting the generality of the foregoing, each Grantor expressly agrees that in any such event Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to it under or upon any Grantor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code and other applicable law), may forthwith (personally or through its agents) enter upon the premises where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice and opportunity for a hearing on Agent’s claim or action and may take possession of, collect, receive, assemble, process, appropriate, remove and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange at such prices as it may deem acceptable, for cash or on credit or for future delivery without assumption of any credit risk. Agent or any Lender shall have the following (ifright upon any such public sale or sales and, within fifteen (15) Business Days to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of receipt by Agent and Lenders, the Lessee whole or any part of an said Collateral so sold, free of any right or equity of redemption, which equity of redemption each Grantor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. Agent shall have the right to conduct such sales on each Grantor’s premises or elsewhere and shall have the right to use each Grantor’s premises without charge for such time or times as Agent deems necessary or advisable. If any Event of Default Notice (shall have occurred and be continuing, each Grantor further agrees, at Agent’s request, to assemble the Collateral and make it available to Agent at a place or places designated by Agent which are reasonably convenient to Agent and such Grantor, whether at such Grantor’s premises or elsewhere. Without limiting the foregoing, Agent shall also have the right to require that each Grantor store and keep any Collateral pending further action by Agent, and while Collateral is so stored or kept, provide such guards and maintenance services as defined shall be necessary to protect the same and to preserve and maintain Collateral in Section 29(l))good condition. Until Agent is able to effect a sale, lease, license or other disposition of Collateral, Agent shall have the Lessee has right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall not made a request have any obligation to purchase all Parcels of Property and Units of Equipment under Section 29(l) or, if any Grantor to maintain or preserve the Lessee has so made such a request but has not consummated within thirty (30) Business Days of receipt of the Event of Default Notice such purchase in full compliance with Section 29(l)):
(a) Terminate the lease rights of any or all Property or Equipment leased hereunder by written notice Grantor as against third parties with respect to the Lessee, subject to the maximum amount the Lessor shall be entitled to recover from the Lessee, as described in paragraph (f) of this Section 19;
(b) Whether or not the lease of any Property or Equipment Collateral while Collateral is terminated, take immediate possession of and remove any or all Equipment and other equipment or property of the Lessor in the possession of Agent. Agent may, if it so elects, seek the Lessee, wherever situated, and for such purpose, enter upon any premises without liability appointment of a receiver or keeper to the Lessee for so doing, provided that the taking of take possession of Collateral and to enforce any Property or Equipment shall take place in a commercially reasonable manner;
of Agent’s remedies (c) Whether or not any action has been taken under paragraph (i) or (ii) abovefor the benefit of Agent and Lenders), sell any Property or Equipment (free of or subject to the rights of the Lessee or any other person under this Lease and with or without the concurrence or request of the Lessee);
(d) Hold, use, occupy, operate, remove, lease or keep idle any or all Property or Equipment as the Lessor in its sole discretion may determine, without any duty to account to the Lessee with respect to such appointment without prior notice or hearing as to such appointment. Agent shall apply the net proceeds of any such action collection, recovery, receipt, appropriation, realization or inactionsale to the Obligations as provided in the Credit Agreement, and only after so paying over such net proceeds, and after the payment by Agent of any other amount required by any provision of law, need Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against Agent or any Lender arising out of the repossession, retention or sale of the Collateral except that such as arise solely out of the Lessor gross negligence or willful misconduct of Agent or such Lender as finally determined by a court of competent jurisdiction. Each Grantor agrees that any profit it derives from ten (10) days prior notice by Agent of the occupation or use time and place of any Property or Equipment while exercising its rights under this Section 19 will be applied to reduce the Accrued Default Obligations; and
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof.
31.2 Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation.
31.3 The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee public sale or of the time after which a private sale may take place is reasonable notification of such matters. Notwithstanding any default by the Lessee in the performance such notice of any of the termssale, covenants or conditions of this Lease, Agent shall not be deemed obligated to be a waiver make any sale of Collateral. In connection with any sale, lease, license or other disposition of Collateral, Agent may disclaim any warranties that might arise in connection therewith and Agent shall have no obligation to provide any warranties at such time. Each Grantor shall remain liable for any deficiency if the proceeds of any provision of this Lease.
31.4 No receipt of moneys by the Lessor from the Lessee after the termination sale or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Term or the Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver disposition of the right of the Lessor Collateral are insufficient to enforce the payment of Basic Rent or Additional Rent pay all Obligations, including any attorneys’ fees or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property expenses incurred by proper 55 57 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Property, the Lessor 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 and operation of any Unit of Equipment or the use, operation and occupation of any Parcel of Property, or at the election of the Lessor, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligations. Acceptance of the keys to any Parcel of Property, Agent or any similar act, by the Lessor, or any agent or employee of the Lessor, during the term hereof, shall not be deemed Lender to be an acceptance of a surrender of any Parcel of Property unless the Lessor shall consent thereto in writingcollect such deficiency.
31.5 The Lessee hereby expressly confirms that, in any event, including after any Event of Default, and notwithstanding any termination of this Lease or reentry or repossession by the Lessor, the Lessee shall continue to be liable for, and the Lessor may recover from the Lessee, (i) all Basic Rent accrued to the date of payment, (ii) any Additional Rent owing with respect to all Property or Equipment leased by the Lessee, (iii) all amounts payable hereunder or under any other Operative Document and (iv) all losses, damages, costs and expenses incurred (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, including, in the event of a sale by the Lessor of any Property or Equipment pursuant to this Section 19, all costs and expenses associated with such sale. The amounts payable in clauses (i) through (iv) above are hereinafter sometimes referred to as the "Accrued Default Obligations". Accrued Default Obligations shall not include any damages for loss of profits arising from the prospective use, operation and occupancy by parties other than the Lessee of any Property or Equipment or the anticipated receipt of income therefrom subsequent to the Lessee's possession of such Property and Equipment.
Appears in 1 contract
Sources: Security Agreement (Southern Construction Products Inc)
Rights Upon Default. 31.1 Upon Subject in all cases to the Lessee's rights under paragraph (f) of Section 13 of this Lease and to the entirety of this Section 19, upon the occurrence and continuation of any Event of Default the Lessor may, in addition to exercising any other rights and remedies available to it under applicable law, may do any one or more of the following (if, within fifteen (15) Business Days of receipt by the Lessee of an Event of Default Notice (as defined in Section 29(l)), the Lessee has not made a request to purchase all Parcels of Property and Units of Equipment under Section 29(l) or, if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of receipt of the Event of Default Notice such purchase in full compliance with Section 29(l)):following:
(a) Terminate the lease of any or all Property or Equipment leased hereunder by written notice to the Lessee, subject to the maximum amount the Lessor shall be entitled to recover from the Lessee, as described in paragraph (f) of this Section 19hereunder;
(b) Whether or not the lease of any Property or Equipment is terminated, take immediate possession of and remove any or all Equipment and other equipment or property of the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any premises without liability to the Lessee for so doing;
(c) Whether or not any action has been taken under paragraph (a) or (b) above, sell any Property or Equipment (with or without the concurrence or request of the Lessee) at public or private sale (judicially or non-judicially) pursuant to such notices and procedures as may be required by law, to the extent such requirements are not effectively waived by the Lessee hereunder, provided that the taking of possession disposition of any Property or Equipment shall take place in a commercially reasonable manner;
(c) Whether or not any action has been taken under paragraph (i) or (ii) above, sell any Property or Equipment (free of or subject to the rights of the Lessee or any other person under this Lease and with or without the concurrence or request of the Lessee);
(d) Hold, use, occupy, operate, repair, remove, lease or keep idle any or all of the Property or Equipment as the Lessor in its sole discretion may determine, without any duty to account to the Lessee with respect to any such action or inaction, except that the Lessor agrees that inaction or for any profit it derives from the occupation or use of any Property or Equipment while exercising its rights under this Section 19 will be applied to reduce the Accrued Default Obligations; andproceeds thereof;
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof.; and
31.2 (f) Continue this Lease in full force and effect and collect rent when due and/or enter the Property and assemble the Equipment and relet for the Lessee's account, with the Lessee liable for all costs incurred by the Lessor in reletting the same. Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation.
31.3 . The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease.
31.4 No . Subject to the provisions of paragraph (f) of Section 13 hereof, no receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Lease Term or the any Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper 55 57 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Property, the Lessor 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 and operation of any Unit of Equipment or the use, operation and occupation of any Parcel of Property, or at the election of the Lessor, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligationshereunder. Acceptance of the keys to any Parcel of the Property, or any similar act, by the Lessor, or any agent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel of the Property unless the Lessor and Assignee shall consent thereto in writing.
31.5 The Lessee hereby expressly confirms that, in any event, including after . After any Event of Default, and notwithstanding any termination of this Lease or reentry or repossession by the Lessor, the Lessee shall continue to be liable for, and the Lessor may recover from the Lessee, Lessee (without duplication) (i) all Basic Rent accrued to the date of payment, (ii) any Additional Rent owing with respect to all Property or Equipment leased by the Lesseeowing, (iii) all amounts payable hereunder or under any other Operative Document pursuant to Sections 11, 25 and 27 hereof, (iv) all losses, damages, costs and expenses incurred (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, includingincluding without limitation, in the event of a sale by the Lessor of any the Property or Equipment pursuant to this Section 19, all costs and expenses associated with such salesale and (v) all other amounts owing hereunder. The amounts payable in clauses (i) through (ivv) above are hereinafter sometimes referred to as the "Accrued Default Obligations". After an Event of Default, but subject to the provisions of paragraph (f) of Section 13 hereof, the Lessor may sell its interest in the Property and the Ground Sublease upon any commercially reasonable terms that the Lessor deems satisfactory, free of any rights of the Lessee or any Person claiming through or under the Lessee. In the event of any such sale, in addition to the Accrued Default Obligations, the Lessor shall be entitled to recover from the Lessee, as liquidated damages and not as a penalty, and subject to the second succeeding sentence, an amount equal to the Termination Value. Proceeds of sale received by the Lessor in excess of the Termination Value shall be credited against the Accrued Default Obligations the Lessee is required to pay under this Section 19. If such proceeds and/or payment of Termination Value under this Lease exceed the sum of (i) the Accrued Default Obligations and (ii) the Termination Value, and if the Lessee has paid the Termination Value, the Accrued Default Obligations and all other amounts required to be paid by Lessee under the Related Documents, such excess shall be paid by the Lessor to the Lessee. As an alternative to any such sale, in addition to the Accrued Default Obligations, the Lessor may require the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not include as a penalty, an amount equal to the Termination Value. If the Lessor subsequently sells its interest in the Property, the proceeds of any such sale and/or any such amounts realized (net of any unreimbursed costs or liabilities incurred by the Lessor or Assignee with respect to the Property after the termination of the Lease, which are not included in the Accrued Default Obligations) shall be distributed as provided in the third and fourth sentences of this paragraph. Notwithstanding anything to the contrary contained herein, if the Lessee converts the Property or any part thereof after an Event of Default, or if the Property is lost or destroyed by the Lessee at the time of the Event of Default, in addition to the Accrued Default Obligations, the Lessor may require the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages for and not as a penalty, an amount equal to the Termination Value. In addition to any other remedies available under this Lease to the Lessor, the Lessor may choose, in its sole discretion, upon termination of this Lease to recover the maximum amount (including interest) to which the Lessor is entitled under applicable law with respect to rent accrued, or which would have accrued, under this Lease as of the time of any award, and, with respect to the loss of profits arising future rents, to recover from the prospective useLessee the worth, operation at the time of the award, of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of the loss of rent that the Lessee proves could have been reasonably avoided. "The worth at the time of award", as used herein, is to be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award, plus one percent, or if less, the minimum discount rate permitted by law. In the event of a sale pursuant to this Section 19, upon receipt by the Lessor of the amounts payable hereunder, the Lessor shall transfer all of the Lessor's right, title and occupancy by parties interest in and to the Property to a purchaser other than the Lessee of any Property or Equipment or the anticipated receipt of income therefrom subsequent to the Lessee's , as the case may be. No remedy referred to in this Section 19 is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to the Lessor at law or in equity, and the exercise in whole or in part by the Lessor of any one or more of such remedies shall not preclude the simultaneous or later exercise by the Lessor of any or all such other remedies. No waiver by the Lessor 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 Lease as a result of an Event of Default, the Lessee hereby waives service of any notice of intention to re-enter. The Lessee hereby waives any and all rights to recover or regain possession of such the Property or to reinstate this Lease as permitted or provided by or under any statute, law or decision now or hereafter in force and Equipmenteffect.
Appears in 1 contract
Sources: Master Lease Agreement (Minimed Inc)
Rights Upon Default. 31.1 (a) Upon the occurrence and continuation of any Event of Default the Lessor may, in addition to exercising any other rights and remedies available to it under applicable law, may do any one or more of the following (if, within fifteen subject to the provisions of paragraphs (15a) Business Days and (c) of receipt by the Lessee Section 13 of an Event of Default Notice (as defined in Section 29(l)), the Lessee has not made a request to purchase all Parcels of Property and Units of Equipment under Section 29(l) or, if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of receipt of the Event of Default Notice such purchase in full compliance with Section 29(l)this Lease):
(ai) Terminate terminate the lease of any or all Property or Equipment leased hereunder by written notice to the Lessee, subject to the maximum amount the Lessor shall be entitled to recover from the Lessee, as described in paragraph (f) of this Section 19Project hereunder;
(bii) Whether whether or not the lease of any Property or Equipment the Project is terminated, take immediate possession of the Project and remove any or all Equipment and other equipment or property of the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any premises the Premises without liability to the Lessee for so doing, provided that the taking of possession of any Property or Equipment shall take place in a commercially reasonable manner;
(ciii) Whether whether or not any action has been taken under paragraph clause (i) or (ii) above, sell any Property or Equipment the Project (free of or subject to the rights of the Lessee or any other person under this Lease and with or without the concurrence or request of the Lessee);
(div) Holdhold, use, occupy, operate, repair, remove, lease or keep idle any or all Property or Equipment the Project as the Lessor in its sole discretion may determine, without any duty to account to the Lessee mitigate damages with respect to any such action or inaction, except that the Lessor agrees that inaction or with respect to any profit it derives from the occupation or use of any Property or Equipment while exercising its rights under this Section 19 will be applied to reduce the Accrued Default Obligationsproceeds thereof; and
(ev) Exercise exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof.
31.2 (b) Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation.
31.3 (c) The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease.
31.4 (d) No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Lease Term or the Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Rent, any Make-Whole Premium, Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper 55 57 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Propertythe Project, the Lessor 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 and operation of any Unit of Equipment or the use, operation and occupation of any Parcel of Property, or at the election of the Lessor, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligations. Acceptance of the keys to any Parcel of Propertythe Project, or any similar act, by the Lessor, or any agent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel of Property the Project unless the Lessor and Assignee shall consent thereto in writing.
31.5 The Lessee hereby expressly confirms that, in any event, including after (e) After any Event of Default, and notwithstanding any termination of this Lease or reentry or repossession by the Lessor, the Lessee shall continue to be liable for, and the Lessor may recover from the Lessee, (i) all Basic Rent payable and accrued to through the date of paymenttermination of this Lease, (ii) any Additional Rent owing with respect to all Property Rent, including, without limitation, any Make-Whole Premium or Equipment leased by the LesseeModified Call Premium owing, (iii) all amounts payable hereunder or under any other Operative Document pursuant to Sections 11, 24 and 26 hereof, (iv) all losses, damages, costs and expenses incurred (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or transfer taxestaxes and all costs and expenses related to (1) the conduct of investigations, studies, sampling and/or testing of the Premises and (2) the taking of any action, including, without limitation, any remedial measures with respect to the Premises, each as required by an Assignee pursuant to the terms of a Financing Arrangement) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, includingincluding without limitation, in the event of a sale by the Lessor of any Property or Equipment its interest in the Project pursuant to this Section 19, all costs and expenses associated with such salesale and (v) all other amounts owing hereunder. The amounts payable in clauses (i) through (ivv) above are hereinafter sometimes referred to as the "Accrued Default Obligations".
(f) After an Event of Default, the Lessor may sell its interest in the Project upon any terms that the Lessor deems satisfactory, free of any rights of the Lessee or any Person claiming through or under the Lessee (including, without limitation, any rights hereunder or under the Agreement for Lease or the Project Contracts). In the event of any such sale, in addition to the Accrued Default Obligations, the Lessor shall be entitled to recover from the Lessee, as liquidated damages and not as a penalty, an amount equal to the Adjusted Acquisition Cost, minus the proceeds of sale received by the Lessor. Proceeds of sale (net of any unreimbursed costs or liabilities incurred by the Lessor or any Assignee with respect to the Project or Project Contracts after the termination of this Lease, which are not included in the Accrued Default Obligations shall not include (after taking into account any damages for loss of profits arising revenues received from the prospective useoperation of the Project)) received by the Lessor in excess of the Adjusted Acquisition Cost shall be applied first, operation to the Accrued Default Obligations, second, to satisfy all Unrecovered Liabilities and occupancy Judgments and all other amounts required to be paid under this Section 19, and third, in payment to the Lessee; provided, however, that the Lessee shall remain liable from proceeds received pursuant to clause third above for any Unrecovered Liabilities and Judgments that arise after the payment of such excess proceeds to the extent such Unrecovered Liabilities and Judgments arise from or relate to acts or omissions occurring, or circumstances or conditions created or existing at any time as of or prior to the expiration or termination of this Lease.
(g) In the event of a sale pursuant to this Section 19, upon receipt by parties the Lessor of all amounts payable hereunder and under the Lessee Note, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Project to a purchaser other than the Lessee of any Property or Equipment or the anticipated receipt of income therefrom subsequent to the Lessee, as the case may be.
(h) As an alternative to any such sale, or if the Lessee converts the Project after an Event of Default, or if the Project suffers an Event of Loss or Taking or is otherwise lost or destroyed at the time of or during the continuance of an Event of Default, in addition to the Accrued Default Obligations, the Lessor may require the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Adjusted Acquisition Cost plus an additional amount equal to 1.75% of the Adjusted Acquisition Cost. In the event the Lessor receives payment from the Lessee of the Adjusted Acquisition Cost of the Project plus an additional amount equal to 1.75% of the Adjusted Acquisition Cost, and the Accrued Default Obligations, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Project to the Lessee.
(i) In the event the Lessor is not paid an amount equal to the Adjusted Acquisition Cost and an additional amount equal to 1.75% of the Adjusted Acquisition Cost, plus the Accrued Default Obligations, then, in addition to the Lessor's other rights in this Section 19, the Lessee shall upon the Lessor's request (i) assign to the Lessor (or to an assignee designated by the Lessor or Assignee), at no cost, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project and obtained and held by the Lessee at that time, (ii) assign to the Lessor (or to a foreclosure purchaser designated by the Lessor or Assignee), at no cost, all right, title and interest of the Lessee in, to and under the Project Contracts, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment to any other third party assignee designated by the Lessor or Assignee, use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Contracts; and (iii) assign to the Lessor, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at the time of such sale and transferable by the Lessee and any easements available to the Lessee and transferable by the Lessee in connection with the equipping, maintenance, operation or use of the Project. The Lessee acknowledges that it would be difficult to ascertain the value to the Lessor of the Lessee's agreement to assign, transfer or have reissued to the Lessor such Governmental Actions and Intellectual Property Rights, to assign such Project Contracts (and, if necessary, to obtain such consents to such assignment) and to assign to the Lessor such service agreements and easements or to adequately compensate the Lessor by an award of damages for the Lessee's failure to assign to the Lessor such Governmental Actions and Intellectual Property Rights, to assign such Project Contracts (and, if necessary, to obtain such consents to such assignment) and to assign to the Lessor such service agreements and easements, and that therefore the Lessor would not have an adequate remedy at law for breach by the Lessee of its agreement hereunder to the Lessor. Accordingly, the Lessee acknowledges that the Lessor shall be entitled to obtain specific performance of the Lessee's obligation to assign to the Lessor such Governmental Actions and Intellectual Property Rights, to obtain such consents to such assignment and to assign to the Lessor the service agreements and easements. In the event the Lessee fails to obtain any consents required in clause (ii) of the third preceding sentence, at the request of the Lessor or such purchaser, as the case may be, the Lessee shall agree to (A) at the expense of such purchaser or the Lessor, as the case may be, continue to perform under and maintain in full force and effect the Project Contracts and pay all sums received under the Project Contracts to such third party or the Lessor, as the case may be, (B) at the expense of such third party or the Lessor, as the case may be, and subject to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such third party or the Lessor, as the case may be, with respect to such Project Contracts (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Project Contracts), and (C) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior written consent of such third party or the Lessor, as the case may be.
(j) No remedy referred to in this Section 19 is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to the Lessor at law or in equity, and the exercise in whole or in part by the Lessor of any one or more of such remedies shall not preclude the simultaneous or later exercise by the Lessor of any or all such other remedies.
(k) No waiver by the Lessor 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.
(l) With respect to the termination of this Lease as a result of an Event of Default, to the extent permitted by applicable law, the Lessee hereby waives any and all rights to recover or regain possession of such Property the Project or to reinstate this Lease as permitted or provided by or under any statute, law or decision now or hereafter in force and Equipmenteffect.
Appears in 1 contract
Rights Upon Default. 31.1 The Assignee shall have the right to and may receive the Rents, issues, profits and income from said Mortgaged Property, including all Rents covered by this instrument or hereafter made for application on the Secured Indebtednessonly if and in the event the Assignor defaults in, breaches or fails to perform any one or more of the covenants and agreements contained in (a) the Note, (b) the Mortgage, (c) this Assignment or (d) the other Loan Documents, and such is not cured within the applicable curative period, if any, specified in the applicable Loan Document(s). In the event of any such default, breach or failure to perform which is not cured within the period as aforesaid, and the exercise of the Assignee of its right to receive such Rents, issues, profits and income, the amount so received prior to foreclosure sale, less all costs, fees and expenses of collection, including a reasonable attorney's fee, shall be applied on the Loan but any such default, breach or failure to perform, or the exercise by the Assignee of its right to receive the Rents, issues, profits and income, shall not prevent the Assignee from exercising any of its rights under the Loan Documents, including its right to foreclose any mortgage nor any of its other rights under this Assignment. Upon the occurrence and continuation of any Event of Default the Lessor maysuch default, breach or failure to perform which is not cured within any applicable curative period, as aforesaid, in addition to exercising all rights, remedies contained herein and the rights and remedies provided for in Florida Statutes § 697.07, as amended from time to time, the Assignee shall have and may exercise from time to time any and all rights and remedies of a secured party under the Uniform Commercial Code of the State of Florida, as such Code is from time to time in effect, and any and all other rights and remedies available to it under any other applicable law, do any one or more including but not limited to, the right to foreclose this Assignment and the Mortgage in the same proceedings. The security of this Assignment is and shall be primary and on a parity with the following (if, within fifteen (15) Business Days of receipt real estate encumbered by the Lessee of an Event of Default Notice (as defined in Section 29(l)), the Lessee has Mortgage and not made a request to purchase all Parcels of Property and Units of Equipment under Section 29(l) or, if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of receipt of the Event of Default Notice such purchase in full compliance with Section 29(l)):
(a) Terminate the lease of any or all Property or Equipment leased hereunder by written notice to the Lessee, subject to the maximum amount the Lessor shall be entitled to recover from the Lessee, as described in paragraph (f) of this Section 19;
(b) Whether or not the lease of any Property or Equipment is terminated, take immediate possession of and remove any or all Equipment and other equipment or property of the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any premises without liability to the Lessee for so doing, provided that the taking of possession of any Property or Equipment shall take place in a commercially reasonable manner;
(c) Whether or not any action has been taken under paragraph (i) or (ii) above, sell any Property or Equipment (free of or subject to the rights of the Lessee or any other person under this Lease and with or without the concurrence or request of the Lessee);
(d) Hold, use, occupy, operate, remove, lease or keep idle any or all Property or Equipment as the Lessor in its sole discretion may determine, without any duty to account to the Lessee with respect to any such action or inaction, except that the Lessor agrees that any profit it derives from the occupation or use of any Property or Equipment while exercising its rights under this Section 19 will be applied to reduce the Accrued Default Obligations; and
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereofsecondary.
31.2 Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation.
31.3 The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease.
31.4 No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Term or the Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper 55 57 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Property, the Lessor 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 and operation of any Unit of Equipment or the use, operation and occupation of any Parcel of Property, or at the election of the Lessor, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligations. Acceptance of the keys to any Parcel of Property, or any similar act, by the Lessor, or any agent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel of Property unless the Lessor shall consent thereto in writing.
31.5 The Lessee hereby expressly confirms that, in any event, including after any Event of Default, and notwithstanding any termination of this Lease or reentry or repossession by the Lessor, the Lessee shall continue to be liable for, and the Lessor may recover from the Lessee, (i) all Basic Rent accrued to the date of payment, (ii) any Additional Rent owing with respect to all Property or Equipment leased by the Lessee, (iii) all amounts payable hereunder or under any other Operative Document and (iv) all losses, damages, costs and expenses incurred (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, including, in the event of a sale by the Lessor of any Property or Equipment pursuant to this Section 19, all costs and expenses associated with such sale. The amounts payable in clauses (i) through (iv) above are hereinafter sometimes referred to as the "Accrued Default Obligations". Accrued Default Obligations shall not include any damages for loss of profits arising from the prospective use, operation and occupancy by parties other than the Lessee of any Property or Equipment or the anticipated receipt of income therefrom subsequent to the Lessee's possession of such Property and Equipment.
Appears in 1 contract
Sources: Assignment of Rents, Leases, Profits and Contracts (Bovie Medical Corp)
Rights Upon Default. 31.1 Upon the occurrence and continuation of any Event of Default the Lessor may, in addition to exercising any other rights and remedies available to it under applicable law, may do any one or more of the following (if, within fifteen (15) Business Days of receipt by the Lessee of an Event of Default Notice (as defined in Section 29(l)), the Lessee has not made a request to purchase all Parcels of Property and Units of Equipment under Section 29(l) or, if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of receipt of the Event of Default Notice such purchase in full compliance with Section 29(l)):following:
(a) Terminate the lease of any or all Property or Equipment leased hereunder by written notice to the Lessee, subject to the maximum amount the Lessor shall be entitled to recover from the Lessee, as described in paragraph (f) of this Section 19hereunder;
(b) Whether To the extent permitted by applicable law, whether or not the lease of any Property or Equipment is terminated, take immediate possession of and remove any or all Equipment and other equipment or property of the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any premises without liability to the Lessee for so doing, provided that the taking of possession of any Property or Equipment shall take place in a commercially reasonable manner;
(c) Whether or not any action has been taken under paragraph (ia) or (iib) above, sell the Lessor's and/or Lessee's interest in any Property or Equipment (free of or subject to the rights of the Lessee or any other person under this Lease and with or without the concurrence or request of the Lessee) at public or private sale (judicially or non-judicially), pursuant to such notices and procedures as may be required by law, to the extent such requirements are not effectively waived by the Lessee hereunder;
(d) Hold, use, occupy, operate, remove, lease or keep idle any or all Property or Equipment as the Lessor in its sole discretion may determine, without any duty to account to the Lessee with respect to any such action or inaction, inaction or for any proceeds thereof except that the Lessor agrees that any profit it derives from the occupation or use of any Property or Equipment while exercising its rights under this Section 19 will be applied to reduce the Accrued Default Obligations; andas expressly set forth herein;
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof.; and
31.2 (f) Continue this Lease in full force and effect and collect rent when due, and/or enter the Property and assemble the Equipment and relet for the Lessee's account, with the Lessee liable for all costs incurred by the Lessor in reletting the same. Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation.
31.3 The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease.
31.4 No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Term or the Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper 55 57 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Property, the Lessor 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 and operation of any Unit of Equipment or the use, operation and occupation of any Parcel of Property, or at the election of the Lessor, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligations. Acceptance of the keys to any Parcel of Property, or any similar act, by the Lessor, or any agent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel of Property unless the Lessor shall consent thereto in writing.
31.5 The Lessee hereby expressly confirms that, in any event, including after any Event of Default, and notwithstanding any termination of this Lease or reentry or repossession by the Lessor, the Lessee shall continue to be liable for, and the Lessor may recover from the Lessee, (i) all Basic Rent accrued to the date of payment, (ii) any Additional Rent owing with respect to all Property or Equipment leased by the Lessee, (iii) all amounts payable hereunder or under any other Operative Document and (iv) all losses, damages, costs and expenses incurred (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, including, in the event of a sale by the Lessor of any Property or Equipment pursuant to this Section 19, all costs and expenses associated with such sale. The amounts payable in clauses (i) through (iv) above are hereinafter sometimes referred to as the "Accrued Default Obligations". Accrued Default Obligations shall not include any damages for loss of profits arising from the prospective use, operation and occupancy by parties other than the Lessee of any Property or Equipment or the anticipated receipt of income therefrom subsequent to the Lessee's possession of such Property and Equipment.date
Appears in 1 contract
Rights Upon Default. 31.1 Upon the occurrence and continuation of any Event of Default the Lessor may, in addition to exercising any other rights and remedies available to it under applicable law, may do any one or more of the following (if, within fifteen (15) Business Days of receipt by the Lessee of an Event of Default Notice (as defined in Section 29(l)), the Lessee has not made a request to purchase all Parcels of Property and Units of Equipment under Section 29(l) or, if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of receipt of the Event of Default Notice such purchase in full compliance with Section 29(l)):following:
(a) Terminate the lease of any or all Property or Equipment leased hereunder by written notice to the Lessee, subject to the maximum amount the Lessor shall be entitled to recover from the Lessee, as described in paragraph (f) of this Section 19;
(b) Whether or not the lease of any Property or Equipment is terminated, take immediate possession of and remove any or all Equipment and other equipment or property of the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any premises without liability to the Lessee for so doing, provided that the taking of possession of any Property or Equipment shall take place in a commercially reasonable manner;
(c) Whether or not any action has been taken under paragraph (ia) or (iib) above, take immediate possession of any Property or Equipment and sell or relet any Property or Equipment (free of or subject to the rights of the Lessee or any other person under this Lease and with or without the concurrence or request of the Lessee); PROVIDED, HOWEVER, that notwithstanding any such reletting or taking of possession, the Lessor may at any time thereafter elect to terminate this Lease for a continuing Event of Default; PROVIDED, FURTHER, that the Lessee shall remain liable for all of its monetary obligations hereunder, subject to applicable law and the provisions of this Section 19;
(d) Hold, use, occupy, operate, repair, remove, lease or keep idle any or all Property or Equipment as the Lessor in its sole discretion may determine, without any duty to account to the Lessee with respect to any such action or inaction, except that the Lessor agrees that inaction or for any profit it derives from the occupation or use of any Property or Equipment while exercising its rights under this Section 19 will be applied to reduce the Accrued Default Obligationsproceeds thereof; and
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof.
31.2 ; PROVIDED, HOWEVER, that no act or thing done by the Lessor or any of its agents, representatives or employees and no agreement accepting a surrender of any Property or Equipment shall be valid unless the same be made in writing and executed by the Lessor. Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation.
31.3 . The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease.
31.4 . No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Lease Term or the any Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper 55 57 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Property, the Lessor 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 and operation of any Unit of Equipment or the use, operation and occupation of any Parcel of Property, or at the election of the Lessor, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligationshereunder. Acceptance of the keys to any Parcel of Property, or any similar act, by the Lessor, or any agent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel of Property unless the Lessor and Assignee shall consent thereto in writing.
31.5 The Lessee hereby expressly confirms that, in any event, including after . After any Event of Default, and notwithstanding any termination of this Lease or reentry or repossession by the Lessor, the Lessee shall continue to be liable for, and the Lessor may recover from the Lessee, Lessee (i) all Basic Rent accrued to the date of payment, (ii) any Additional Rent owing with respect to all Property or Equipment leased by the Lesseeas of such date, (iii) all amounts payable hereunder or under any other Operative Document pursuant to Sections 11, 25 and 27 hereof, (iv) all losses, damages, costs and expenses incurred (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, includingincluding without limitation, in the event of a sale by the Lessor of any the Property or Equipment pursuant to this Section 19, all costs and expenses associated with such salesale (PROVIDED that, if the provisions set forth in this Section 19 are applicable, such losses and damages shall not include any losses or damages for foregone rent, lost profits or loss of the Lessor's benefit of the bargain arising after the Lessee has paid in full all amounts due hereunder, has purchased the Property or Equipment from the Lessor free and clear of all Liens, and has otherwise performed all its obligations under this Section 19) and (v) all other amounts owing hereunder. The amounts payable in clauses (i) through (ivv) above are hereinafter sometimes referred to as the "ACCRUED DEFAULT OBLIGATIONS". After an Event of Default, the Lessor may sell its interest in the Property and Equipment upon any terms that the Lessor deems satisfactory, free of any rights of the Lessee or any Person claiming through or under the Lessee (including, without limitation, any rights hereunder or under the Pledged Contracts). In the event of any such sale, in addition to the Accrued Default Obligations", the Lessor shall be entitled to recover from the Lessee, as liquidated damages and not as a penalty, and subject to the second succeeding sentence, an amount equal to the Adjusted Acquisition Cost of all Property and Equipment under this Lease. Proceeds of sale received by the Lessor in excess of the Adjusted Acquisition Cost of such Property or Equipment shall be credited against the Accrued Default Obligations the Lessee is required to pay under this Section 19. If such proceeds exceed the sum of (i) the Accrued Default Obligations and (ii) the Adjusted Acquisition Cost of all Property and Equipment under this Lease, such excess shall be paid by the Lessor to the Lessee. As an alternative to any such sale, in addition to the Accrued Default Obligations, the Lessor may require the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not include as a penalty, an amount equal to the Adjusted Acquisition Cost of all Property and Equipment under this Lease. If the Lessor subsequently sells its interest in the Property or Equipment, the proceeds of any such sale and/or any such amounts realized (net of any unreimbursed costs or liabilities incurred by the Lessor or Assignee with respect to the Property or Equipment after the termination of the Lease, which are not included in the Accrued Default Obligations) shall be distributed as provided in the third and fourth sentences of this paragraph. Notwithstanding anything to the contrary contained herein, if the Lessee converts the Property and Equipment or any part thereof after an Event of Default, or if the Property and Equipment is lost or destroyed by the Lessee at the time of the Event of Default, in addition to the Accrued Default Obligations, the Lessor may require the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages for loss and not as a penalty, an amount equal to the Adjusted Acquisition Cost of profits arising from all Property and Equipment under this Lease. In the prospective useevent of a sale pursuant to this Section 19, operation upon receipt by the Lessor of the amounts payable hereunder, the Lessor shall transfer all of the Lessor's right, title and occupancy by parties interest in and to the Property and Equipment to a purchaser other than the Lessee of any Property or Equipment or the anticipated receipt of income therefrom subsequent to the Lessee, as the case may be. No remedy referred to in this Section 19 is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to the Lessor at law or in equity, and the exercise in whole or in part by the Lessor of any one or more of such remedies shall not preclude the simultaneous or later exercise by the Lessor of any or all such other remedies. No waiver by the Lessor 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 Lease as a result of an Event of Default, the Lessee hereby waives, to the fullest extent permitted by law, (1) service of any notice of intention to re-enter or the institution of legal proceedings to obtain re-entry or possession, (2) the benefit of any laws now or hereafter in force exempting property from liability for rent or limiting the Lessor with respect to the election of remedies; and (3) any other rights which might otherwise limit or modify any of the Lessor's rights or remedies under this Section 19. The Lessee hereby waives any and all rights to recover or regain possession of such the Property and EquipmentEquipment or to reinstate this Lease as permitted or provided by or under any statute, law or decision now or hereafter in force and effect.
Appears in 1 contract
Rights Upon Default. 31.1 Upon the occurrence and continuation of any Event of Default the Lessor may, in addition to exercising any other rights and remedies available to it under applicable law, do any one or more of the following (if, within fifteen (15) Business Days of receipt by the Lessee of an Event of Default Notice (as defined in Section 29(l)), the Lessee has not made a request to purchase all Parcels of Property and Units of Equipment under Section 29(l) or, if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of receipt of the Event of Default Notice such purchase in full compliance with Section 29(l)):
(a) Terminate the lease of any or all Property or Equipment leased hereunder by written notice to the Lessee, subject to the maximum amount the Lessor shall be entitled to recover from the Lessee, as described in paragraph (f) of this Section 19;
(b) Whether or not the lease of any Property or Equipment is terminated, take immediate possession of and remove any or all Equipment and other equipment or property of the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any premises without liability to the Lessee for so doing, ; provided that the taking of possession of any Property or Equipment shall take place in a commercially reasonable manner;
(c) Whether or not any action has been taken under paragraph (i) or (ii) above, sell any Property or Equipment (free of or subject to the rights of the Lessee or any other person under this Lease and with or without the concurrence or request of the Lessee);
(d) Hold, use, occupy, operate, remove, lease or keep idle any or all Property or Equipment as the Lessor in its sole discretion may determine, without any duty to account to the Lessee with respect to any such action or inaction, except that the Lessor agrees that any profit it derives from the occupation or use of any Property or Equipment while exercising its rights under this Section 19 will be applied to reduce the Accrued Default Obligations; and
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof.
31.2 Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation.
31.3 The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease.
31.4 No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Term or the Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper 55 57 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Property, the Lessor 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 and operation of any Unit of Equipment or the use, operation and occupation of any Parcel of Property, or at the election of the Lessor, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligations. Acceptance of the keys to any Parcel of Property, or any similar act, by the Lessor, or any agent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel of Property unless the Lessor shall consent thereto in writing.
31.5 The Lessee hereby expressly confirms that, in any event, including after any Event of Default, and notwithstanding any termination of this Lease or reentry or repossession by the Lessor, the Lessee shall continue to be liable for, and the Lessor may recover from the Lessee, (i) all Basic Rent accrued to the date of payment, (ii) any Additional Rent owing with respect to all Property or Equipment leased by the Lessee, (iii) all amounts payable hereunder or under any other Operative Document and (iv) all losses, damages, costs and expenses incurred (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, including, in the event of a sale by the Lessor of any Property or Equipment pursuant to this Section 19, all costs and expenses associated with such sale. The amounts payable in clauses (i) through (iv) above are hereinafter sometimes referred to as the "Accrued Default Obligations". Accrued Default Obligations shall not include any damages for loss of profits arising from the prospective use, operation and occupancy by parties other than the Lessee of any Property or Equipment or the anticipated receipt of income therefrom subsequent to the Lessee's possession of such Property and Equipment.
Appears in 1 contract
Sources: Lease Agreement (Potash Corporation of Saskatchewan Inc)
Rights Upon Default. 31.1 Upon the occurrence and continuation of any Event of Default the Lessor may, in addition to exercising any other rights and remedies available to it under applicable law, may do any one or more of the following (if, within fifteen subject to the provisions of paragraph (15c) Business Days of receipt by the Lessee Section 13 of an Event of Default Notice (as defined in Section 29(l)), the Lessee has not made a request to purchase all Parcels of Property and Units of Equipment under Section 29(l) or, if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of receipt of the Event of Default Notice such purchase in full compliance with Section 29(l)this Lease):
(a) Terminate the lease of any or all Property or Equipment leased hereunder by written notice to the Lessee, subject to the maximum amount the Lessor shall be entitled to recover from the Lessee, as described in paragraph (f) of this Section 19hereunder;
(b) Whether or not the lease of any Property or Equipment is terminated, take immediate possession of and remove any or all Equipment and other equipment or property of the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any premises without liability to the Lessee for so doing, provided that the taking of possession of any Property or Equipment shall take place in a commercially reasonable manner;
(c) Whether or not any action has been taken under paragraph (ia) or (iib) above, sell any Property or Equipment (free of or subject to the rights of the Lessee or any other person under this Lease and with or without the concurrence or request of the Lessee);
(d) Hold, use, occupy, operate, remove, lease or keep idle any or all Property or Equipment as the Lessor in its sole discretion may determine, without any duty to account to the Lessee with respect to any such action or inaction, except that the Lessor agrees that inaction or for any profit it derives from the occupation or use of any Property or Equipment while exercising its rights under this Section 19 will be applied to reduce the Accrued Default Obligationsproceeds thereof; and
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof.
31.2 . Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation.
31.3 . The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease.
31.4 . No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Lease Term or the any Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper 55 57 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Property, the Lessor 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 and operation of any Unit of Equipment or the use, operation and occupation of any Parcel of Property, or at the election of the Lessor, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligationshereunder. Acceptance of the keys to any Parcel of Property, or any similar act, by the Lessor, or any agent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel of Property unless the Lessor shall consent thereto in writing.
31.5 The Lessee hereby expressly confirms that, in any event, including after . After any Event of Default, and notwithstanding any termination of this Lease or reentry or repossession by the Lessor, the Lessee shall continue to be liable for, and the Lessor may recover from the Lessee, (i) all Basic Rent accrued to the date of payment, (ii) any Additional Rent owing with respect to all Property or Equipment leased by the Lessee, (iii) all amounts payable hereunder or under any other Operative Document pursuant to Sections 11, 25 and 27 hereof and (iv) all losses, damages, costs and expenses incurred (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, including, in the event of a sale by the Lessor of any Property or Equipment pursuant to this Section 19, all costs and expenses associated with such sale. The amounts payable in clauses (i) through (iv) above are hereinafter sometimes referred to as the "Accrued Default Obligations". After an Event of Default, the Lessor may sell (in a commercially reasonable manner) its interest in any Property and Equipment upon any terms that the Lessor deems satisfactory, free of any rights of the Lessee or any Person claiming through or under the Lessee. In the event of any such sale, in addition to the Accrued Default Obligations Obligations, the Lessor shall not include any damages for loss of profits arising be entitled to recover from the prospective useLessee, operation as liquidated damages, and occupancy by parties other than not as a penalty, an amount equal to the Lessee Adjusted Acquisition Cost of any Property or Equipment so sold, minus the proceeds of such sale received by the Lessor. Proceeds of sale received by the Lessor in excess of the Adjusted Acquisition Cost of such Property or Equipment sold shall be credited against the anticipated receipt of income therefrom subsequent Accrued Default Obligations the Lessee is required to pay under this Section 19. If such proceeds exceed the Accrued Default Obligations, or, if the Lessee has paid all amounts required to be paid under this Section 19, such excess shall be paid by the Lessor to the Lessee's possession . As an alternative to any such sale, or if the Lessee converts any Property or Equipment after an Event of Default, or if such Property or Equipment is lost or destroyed, in addition to the Accrued Default Obligations, the Lessor may cause the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Adjusted Acquisition Cost of such Property or Equipment. In the event the Lessor receives payment pursuant to the previous sentence of this paragraph, the Lessor shall transfer all of the Lessor's right, title and Equipmentinterest in and to the Property and Equipment to the Lessee. In the event of a sale pursuant to this Section 19 to a purchaser other than the Lessee, upon receipt by the Lessor of the proceeds of such sale, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Property and Equipment to such purchaser. No remedy referred to in this Section 19 is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to the Lessor at law or in equity, and the exercise in whole or in part by the Lessor of any one or more of such remedies shall not preclude the simultaneous or later exercise by the Lessor of any or all such other remedies. No waiver by the Lessor 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 Lease as to any Parcel of Property as a result of an Event of Default, the Lessee hereby waives service of any notice of intention to re-enter. The Lessee hereby waives any and all rights to recover or regain possession of any Parcel of Property or to reinstate this 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: Lease Agreement (Seaboard Corp /De/)
Rights Upon Default. 31.1 Upon the occurrence and continuation of any Event of Default the Lessor may, in addition to exercising any other rights and remedies available to it under applicable law, may do any one or more of the following (if, within fifteen (15) Business Days of receipt by the Lessee of an Event of Default Notice (as defined in Section 29(l)), the Lessee has not made a request to purchase all Parcels of Property and Units of Equipment under Section 29(l) or, if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of receipt of the Event of Default Notice such purchase in full compliance with Section 29(l)):following:
(a) Terminate the lease of the Facility or any or all Property or Equipment leased hereunder by written notice to the Lessee, subject to the maximum amount the Lessor shall be entitled to recover from the Lessee, as described in paragraph (f) of this Section 19hereunder;
(b) Whether or not the lease of the Facility or any other Property or Equipment is terminated, take immediate possession of and remove any or all Equipment and other equipment or property of the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any premises without liability to the Lessee for so doing, provided that the taking of possession of any Property or Equipment shall take place in a commercially reasonable manner;
(c) Whether or not any action has been taken under paragraph (ia) or (iib) above, sell the Facility or any other Property or Equipment (free of or subject to the rights of the Lessee or any other person under this Lease and with or without the concurrence or request of the Lessee);
(d) Hold, use, occupy, operate, maintain, repair, remove, lease or keep idle the Facility or any or all other Property or Equipment as the Lessor in its sole discretion may determine, without any duty to account to the Lessee with respect to any such action or inaction, except that the Lessor agrees that inaction or for any profit it derives from the occupation proceeds thereof or use of any Property or Equipment while exercising its rights under this Section 19 will be applied to reduce the Accrued Default Obligationsmitigate damages; and
(e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof.
31.2 . Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation.
31.3 . The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease.
31.4 . No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Lease Term or the any Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of the Facility or any other Unit of Equipment or Parcel of Property by proper 55 57 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of the Facility or any other Unit of Equipment or Parcel of Property, the Lessor 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 and operation of any Unit of Equipment or the use, operation and occupation of any Parcel of Property, or at the election of the Lessor, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligationshereunder. Acceptance of the keys to the Facility or any other Parcel of Property, or any similar act, by the Lessor, or any agent Lessee or employee of the Lessoremployee, during the term hereof, shall not be deemed to be an acceptance of a surrender of the Facility or any other Parcel of Property unless the Lessor shall consent thereto in writing.
31.5 The Lessee hereby expressly confirms that, in any event, including after . After any Event of Default, and notwithstanding any termination of this Lease or reentry or repossession by the Lessor, the Lessee shall continue to be liable for, and the Lessor may recover from the Lessee, without duplication, (i) all Basic Rent accrued to through the date of paymentreceipt of all liquidated damages payable upon termination of this Lease and the Debt Yield-Maintenance Premium payable, (ii) any Additional Rent owing with respect to all Property or Equipment leased by the Lesseeowing, (iii) all amounts payable hereunder or under any other Operative Document pursuant to Sections 11, 25 and 27 hereof, (iv) all losses, damages, costs and expenses incurred (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes and all costs and expenses related to (x) the conduct of investigations, studies, sampling and/or testing of the Facility and any other Property and (y) the taking of any action, including, without limitation, any remedial measures or removal with respect to the Facility and any other Property, each as required by the Related Assignee pursuant to the terms of a Financing Arrangement) sustained by the Lessor or by the Related Assignee by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, including without limitation, in the event of a sale by the Lessor of the Facility or any other Property or Equipment pursuant to this Section 19, all costs and expenses associated with such sale and (v) all other amounts owing hereunder (after taking into account the application under a Financing Arrangement of any payments made under this Section 19) excluding, in all cases, costs or expenses included in Acquisition Cost. The amounts payable in clauses (i) through (v) above are hereinafter sometimes referred to as the "Accrued Default Obligations". After termination of this Lease as a result of an Event of Default pursuant to Section 19(a) hereof, the Lessor may sell its interest in the Facility and any other Property and Equipment upon any terms that the Lessor deems satisfactory, free of any rights of the Lessee or any Person claiming through or under the Lessee (including, without limitation, any rights hereunder). In the event of any such sale, in addition to the Accrued Default Obligations, the Lessor shall be entitled to recover from the Lessee, as liquidated damages and not as a penalty, an amount equal to the Acquisition Cost of the Facility and all other Property and Equipment under this Lease. In the case of the sale of the Facility, proceeds of such sale received by the Lessor shall be credited against the Accrued Default Obligations and the Acquisition Cost of the Facility the Lessee is required to pay under this Section 19. In the case of other Property and Equipment, proceeds of sale of such Property and Equipment received by the Lessor shall be credited against the Accrued Default Obligations and the Acquisition Cost of such other Property and Equipment the Lessee is required to pay under this Section 19. If such proceeds, together with any amounts paid by the Lessee under the preceding paragraph, exceed the sum of (i) the Accrued Default Obligations and (ii) the Acquisition Cost of the Facility and all Property and Equipment, such excess shall be paid by the Lessor to the Lessee. As an alternative to any such sale, in addition to the Accrued Default Obligations, the Lessor may require the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Acquisition Cost of the Facility and all other Property and Equipment under this Lease. If the Lessor subsequently sells its interest in the Facility or such other Property or Equipment, the proceeds of any such sale (net of any unreimbursed costs or liabilities incurred by the Lessor or the Related Assignee with respect to the Facility or such other Property or Equipment after the termination of the Lease, which are not included in the Accrued Default Obligations) shall be distributed as provided in the third and fourth sentences of this paragraph. In addition, if the Lessee converts the Facility or any other Property or Equipment or any part thereof after an Event of Default, or if the Facility or any other Property or Equipment is lost or destroyed at the time of the Event of Default, in addition to the Accrued Default Obligations, the Lessor may require the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not as a penalty, an amount equal to the Acquisition Cost of the Facility and all other Property and Equipment under this Lease. In the event the Lessor receives indefeasible payment pursuant to this paragraph from the Lessee of the Acquisition Cost of the Facility and all other Property and Equipment and the Accrued Default Obligations, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Facility and such other Property and Equipment to the Lessee. Upon the occurrence and continuance of any Event of Default, the Lessee shall (unless the Lessee has purchased the Facility pursuant to this Section 19), upon the request of the Lessor or the Related Assignee, exercise all commercially reasonable efforts (i) to provide the Lessor (or a designated assignee of the Lessor or the Related Assignee) with all easements, licenses, manuals, manufacturer's warranties and other matters and services necessary to enable the Facility and any Turbine Unit to operate as an EWG in connection with the sale of electricity to third parties on commercially reasonable terms no less favorable to the Lessor than those that existed prior to such Event of Default, (ii) to provide the Lessor (or a designated assignee of the Lessor or the Related Assignee) with any Governmental Actions and Intellectual Property Rights that are necessary to enable the Facility and any Turbine Unit to operate as an EWG in connection with the sale of electricity to third parties on commercially reasonable terms no less favorable to the Lessor than those that existed prior to such Event of Default, (iii) to provide the Lessor (or a designated assignee of the Lessor or the Related Assignee) with any other permits or licenses required to enable such party to operate the Facility and any Turbine Unit as an EWG in connection with the sale of electricity to third parties on commercially reasonable terms no less favorable to the Lessor than those that existed immediately prior to such Event of Default and (iv) to provide the Lessor (or a designated assignee of the Lessor or the Related Assignee) with any other fuel supply agreements, transmission agreements, service agreements and contracts or subcontracts relating to the provision of services, materials, supplies and benefits contemplated by the Facility Support Agreement in existence at such time to enable such party to operate the Facility and any Turbine Unit as an EWG in connection with the sale of electricity to third parties on commercially reasonable terms no less favorable to the Lessor than those that existed immediately prior to such Event of Default. The Lessee's obligations contained in this subsection shall survive the expiration or other termination of this Lease until the Lessor receives payment of (1) all amounts owing pursuant to this Lease, (2) all losses, damages, costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by the Lessor, (3) all amounts owing under all Financing Arrangements and (4) any unreimbursed costs incurred by the Lessor by reason or the Related Assignee with respect to the Facility after the term of such Event this Lease, net of Default and any revenues received from the exercise operation of the Lessor's remedies with respect thereto, including, in Facility. In the event of a sale by the Lessor of any Property or Equipment pursuant to this Section 19, all costs and expenses associated with such sale. The upon indefeasible receipt by the Lessor of the amounts payable hereunder, the Lessor shall transfer all of the Lessor's right, title and interest in clauses (i) through (iv) above are hereinafter sometimes referred and to as the "Accrued Default Obligations". Accrued Default Obligations shall not include any damages for loss of profits arising from Facility and all other Property and Equipment to the prospective use, operation and occupancy by parties Lessee or a purchaser other than the Lessee Lessee, as the case may be. No remedy referred to in this Section 19 is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to the Lessor at law or in equity, and the exercise in whole or in part by the Lessor of any one or more of such remedies shall not preclude the simultaneous or later exercise by the Lessor of any or all such other remedies. No waiver by the Lessor 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. In addition to its other rights in this Section 19, the Lessor may exercise its various rights under the Facility Support Agreement or transfer such rights to the purchaser in a sale and the Lessee acknowledges hereby its agreement to perform its obligations thereunder. With respect to the termination of this Lease as to the Facility or any other Parcel of Property as a result of an Event of Default, the Lessee hereby waives service of any notice of intention to re-enter. To the extent permitted by applicable law, the Lessee hereby waives any and all rights to recover or regain possession of the Facility or any other Parcel of Property or Equipment to reinstate this Lease as permitted or the anticipated receipt of income therefrom subsequent to the Lessee's possession of such Property provided by or under any statute, law or decision now or hereafter in force and Equipmenteffect.
Appears in 1 contract
Sources: Lease Agreement (Keyspan Corp)
Rights Upon Default. 31.1 Upon the occurrence and continuation of any Event of Default the Lessor may, in addition to exercising any other rights and remedies available to it under applicable law, may do any one or more of the following (if, within fifteen subject to the provisions of paragraph (15b) Business Days of receipt by the Lessee Section 13 of an Event of Default Notice (as defined in Section 29(l)), the Lessee has not made a request to purchase all Parcels of Property and Units of Equipment under Section 29(l) or, if the Lessee has so made such a request but has not consummated within thirty (30) Business Days of receipt of the Event of Default Notice such purchase in full compliance with Section 29(l)this Lease):
(ai) Terminate the lease of any or all Property or Equipment leased hereunder by written notice to the Lessee, subject to the maximum amount the Lessor shall be entitled to recover from the Lessee, as described in paragraph (f) of this Section 19Project hereunder;
(bii) Whether or not the lease of any Property or Equipment the Project is terminated, take immediate possession of the Project and remove any or all Equipment and other equipment or property of the Lessor in the possession of the Lessee, wherever situated, and for such purpose, enter upon any premises the Premises without liability to the Lessee for so doing, provided that the taking of possession of any Property or Equipment shall take place in a commercially reasonable manner;
(ciii) Whether or not any action has been taken under paragraph clause (i) or (ii) above, sell any Property or Equipment the Project (free of or subject to the rights of the Lessee or any other person under this Lease and with or without the concurrence or request of the Lessee);
(div) Hold, use, occupy, operate, repair, remove, lease or keep idle any or all Property or Equipment the Project as the Lessor in its sole discretion may determine, without any duty to account to the Lessee mitigate damages with respect to any such action or inaction, except that the Lessor agrees that inaction or with respect to any profit it derives from the occupation or use of any Property or Equipment while exercising its rights under this Section 19 will be applied to reduce the Accrued Default Obligationsproceeds thereof; and
(ev) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof.
31.2 . THIS LEASE AGREEMENT IS CONFIDENTIAL AND PROPRIETARY Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by the Lessor from time to time at the Lessor's election, and nothing herein contained shall be deemed to require the Lessor to await the date whereon this Lease or the term hereof would have expired by limitation had there been no such default by the Lessee or no such termination or cancellation.
31.3 . The receipt of any payments under this Lease by the Lessor with knowledge of any breach of this Lease by the Lessee or of any default by the Lessee in the performance of any of the terms, covenants or conditions of this Lease, shall not be deemed to be a waiver of any provision of this Lease.
31.4 . No receipt of moneys by the Lessor from the Lessee after the termination or cancellation hereof in any lawful manner shall reinstate, continue or extend the Initial Term, the Extended Term or the Renewal Term, or affect any notice theretofore given to the Lessee, or operate as a waiver of the right of the Lessor to enforce the payment of Basic Rent or Rent, any Debt Yield-Maintenance Premium, Additional Rent or other charges payable hereunder, or operate as a waiver of the right of the Lessor to recover possession of any Unit of Equipment or Parcel of Property by proper 55 57 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY suit, action, proceedings or remedy; it being agreed that, after the service of notice to terminate or cancel this Lease, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of any suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit of Equipment or Parcel of Propertythe Project, the Lessor 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 and operation of any Unit of Equipment or the use, operation and occupation of any Parcel of Property, or at the election of the Lessor, on account of the Lessee's liability hereunder and will be applied to reduce the Accrued Default Obligations. Acceptance of the keys to any Parcel of Propertythe Project, or any similar act, by the Lessor, or any agent or employee of the Lessor, during the term hereof, shall not be deemed to be an acceptance of a surrender of any Parcel of Property the Project unless the Lessor and Assignee shall consent thereto in writing.
31.5 The Lessee hereby expressly confirms that, in any event, including after . After any Event of Default, and notwithstanding any termination of this Lease or reentry or repossession by the Lessor, the Lessee shall continue to be liable for, and the Lessor may recover from the Lessee, (i) all Basic Rent payable and the Variable Component of Basic Rent accrued to through the date of paymenttermination of this Lease, (ii) any Additional Rent owing with respect to all Property or Equipment leased by the Lesseeand Debt Yield-Maintenance Premium owing, (iii) all amounts payable hereunder or under any other Operative Document pursuant to Sections 11, 24 and 26 hereof, (iv) all losses, damages, costs and expenses incurred (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or transfer taxestaxes and all costs and expenses related to (1) the conduct of investigations, studies, sampling and/or testing of the Premises and (2) the taking of any action, including, without limitation, any remedial measures or removal with respect to the Premises, each as required by Assignee pursuant to the terms of a Financing Arrangement) sustained by the Lessor by reason of such Event of Default and the exercise of the Lessor's remedies with respect thereto, includingincluding without limitation, in the event of a sale by the Lessor of any Property or Equipment its interest in the Project pursuant to this Section 19, all costs and expenses associated with such salesale and (v) all other amounts owing hereunder. The amounts payable in clauses (i) through (ivv) above are hereinafter sometimes referred to as the "ACCRUED DEFAULT OBLIGATIONS". After an Event of Default, the Lessor may sell its interest in the Project upon any terms that the Lessor deems satisfactory, free of any rights of the Lessee or any Person claiming through or under the Lessee (including, without limitation, any rights hereunder or under the Agreement for Lease or the Project Contracts). In the event of any such sale, in addition to the Accrued Default Obligations", the Lessor shall be entitled to recover from the Lessee, as THIS LEASE AGREEMENT IS CONFIDENTIAL AND PROPRIETARY liquidated damages and not as a penalty, and subject to the second succeeding sentence, an amount equal to the Adjusted Acquisition Cost. Proceeds of sale received by the Lessor in excess of the Adjusted Acquisition Cost shall be credited against the Accrued Default Obligations the Lessee is required to pay under this Section 19. If such proceeds plus the Adjusted Acquisition Cost, exceed the sum of (i) Accrued Default Obligations and (ii) the Adjusted Acquisition Cost and (iii) any Unrecovered Liabilities and Judgments, and if the Lessee has indefeasibly paid the Adjusted Acquisition Cost, the Accrued Default Obligations plus all Unrecovered Liabilities and Judgments and all other amounts required to be paid under this Section 19, such excess shall be paid by the Lessor to the Lessee; PROVIDED, HOWEVER, that the Lessee shall remain liable from such excess proceeds for any Unrecovered Liabilities and Judgments that arise after the payment of such excess proceeds to the extent such Unrecovered Liabilities and Judgments arise from or relate to acts or omissions occurring, or circumstances or conditions created or existing at any time as of or prior to the expiration or termination of this Lease. As an alternative to any such sale, or if the Lessee converts the Project after an Event of Default, or if the Project suffers an Event of Loss or Taking or is otherwise lost or destroyed at the time of the Event of Default, in addition to the Accrued Default Obligations, the Lessor may require the Lessee to pay to the Lessor, and the Lessee shall pay to the Lessor, as liquidated damages and not include as a penalty, an amount equal to the Adjusted Acquisition Cost plus an additional amount equal to two and one half percent (2 1/2%) of the Adjusted Acquisition Cost. If the Lessor subsequently sells its interest in the Project, the proceeds of any damages for loss such sale (net of profits arising any unreimbursed costs or liabilities incurred by the Lessor or Assignee with respect to the Project or Project Contracts after the termination of the Lease, which are not included in the Accrued Default Obligations (after taking into account any revenues received from the prospective useoperation of the Project)) shall be distributed as provided in the third and fourth sentences of this paragraph. In the event the Lessor receives indefeasible payment from the Lessee of the Adjusted Acquisition Cost of the Project plus an additional amount equal to two and one half percent (2 1/2%) of the Adjusted Acquisition Cost, operation and occupancy the Accrued Default Obligations, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Project to the Lessee. In the event of a sale pursuant to this Section 19, upon indefeasible receipt by parties the Lessor of all amounts payable hereunder, the Lessor shall transfer all of the Lessor's right, title and interest in and to the Project to a purchaser other than the Lessee of any Property or Equipment or the anticipated receipt of income therefrom subsequent to the Lessee, as the case may be. In the event the Lessor is not paid an amount equal to the Adjusted Acquisition Cost and an additional amount equal to two and one half percent (2 1/2%) of the Adjusted Acquisition Cost, plus the Accrued Default Obligations, then, in addition to the Lessor's other rights in this Section 19, the Lessee shall upon the Lessor's request (i) assign to the Lessor (or to an assignee designated by the Lessor or Assignee), at no cost, all right, title and interest of the Lessee in, to and under all Governmental Actions and Intellectual Property Rights needed for the equipping, maintenance, operation or use of the Project and obtained and held by the Lessee at that time, (ii) assign to the Lessor (or to a foreclosure purchaser designated by the Lessor or the Assignee), at no cost, all right, title and interest of the Lessee in, to and under the Project Contracts, and in the event any additional consent of any party to a Project Contract is required as a precondition thereunder to an assignment to any other third party assignee designated by the Lessor or Assignee, use its best efforts to obtain any such required consent to such proposed non-foreclosure assignment and assumption of the Project Contracts; and (iii) assign to the THIS LEASE AGREEMENT IS CONFIDENTIAL AND PROPRIETARY Lessor, at no cost, all right, title and interest of the Lessee in, to and under all service agreements in existence at the time of such sale and transferable by the Lessee and any easements available to the Lessee and transferable by the Lessee in connection with the equipping, maintenance, operation or use of the Project. The Lessee acknowledges that it would be difficult to ascertain the value to the Lessor of the Lessee's agreement to assign, transfer or have reissued to the Lessor such Governmental Actions and Intellectual Property Rights, to assign such Project Contracts (and, if necessary, to obtain such consents to such assignment) and to assign to the Lessor such service agreements and easements or to adequately compensate the Lessor by an award of damages for the Lessee's failure to assign to the Lessor such Governmental Actions and Intellectual Property Rights, to assign such Project Contracts (and, if necessary, to obtain such consents to such assignment) and to assign to the Lessor such service agreements and easements, and that therefore the Lessor would not have an adequate remedy at law for breach by the Lessee of its agreement hereunder to the Lessor. Accordingly, the Lessee acknowledges that the Lessor shall be entitled to obtain specific performance of the Lessee's obligation to assign to the Lessor such Governmental Actions and Intellectual Property Rights, to obtain such consents to such assignment and to assign to the Lessor the service agreements and easements. In the event the Lessee fails to obtain any consents required in clause (ii) of the third preceding sentence, at the request of the Lessor or such purchaser, as the case may be, the Lessee shall agree to (A) at the expense of such purchaser or the Lessor, as the case may be, continue to perform under and maintain in full force and effect the Project Contracts and pay all sums received under the Project Contracts to such third party or the Lessor, as the case may be, (B) at the expense of such third party or the Lessor, as the case may be, and subject to the receipt of indemnification reasonably acceptable to the Lessee, take all actions requested by such third party or the Lessor, as the case may be, with respect to such Project Contracts (including all actions with respect to the enforcement of the Lessee's rights and remedies under such Project Contracts), and (C) not amend, modify, supplement, waive a provision of, grant any consent under or terminate any such Project Contract without the prior written consent of such third party or the Lessor, as the case may be. No remedy referred to in this Section 19 is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to the Lessor at law or in equity, and the exercise in whole or in part by the Lessor of any one or more of such remedies shall not preclude the simultaneous or later exercise by the Lessor of any or all such other remedies. No waiver by the Lessor 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 Lease as a result of an Event of Default, the Lessee hereby waives service of any notice of intention to re-enter. The Lessee hereby waives any and all rights to recover or regain possession of such Property the Project or to reinstate this Lease as permitted or provided by or under any statute, law or decision now or hereafter in force and Equipmenteffect.
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