Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of Default" under this Lease: (i) if Tenant shall (1) fail to pay any Basic Rent, Additional Rent or other sum as and when required to be paid by Tenant hereunder, and such failure shall continue for two (2) Business Days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, or (2) fail to observe or perform any other provision hereof and such failure shall continue for thirty (30) days after written notice to Tenant of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or (ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or (iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or (iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or (v) if any Project shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); or (vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or (vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease (viii) if any Guarantor shall default under the provisions of its guaranty; or (ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereof. (b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's termination of the term of this Lease. Upon the giving of such notice, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided. (c) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b). (d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting. (e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting. (f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date. (g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 2 contracts
Samples: Lease Agreement (Maxxam Inc), Lease Agreement (Maxxam Inc)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of Default" Default under this Lease:
(i) if Tenant If Lessee shall (1) fail to pay any Basic Rent, Additional Rent additional rent or other sum as and when required to be paid by Tenant hereunder, and due (provided that Lessor shall not exercise any of its rights or remedies hereunder for such failure shall continue for two to pay unless such monetary Event of Default continues to exist after Lessor has provided Lessee with five (25) Business Days after delivery of days written notice from Landlord of Lessee’s failure to timely pay such sums and provided that Lessor is obligated to provide such written notice no more than two times for any consecutive twelve (or Lender12) to Tenant that such payment was not received when due, month period before exercising its remedies) or (2) fail to observe or perform any other provision hereof and such nonmonetary failure shall continue for thirty (30) days after written notice to Tenant Lessee of such failure (providedprovided that, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such thirty (30-) day period, if Tenant Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period not to exceed one hundred and eighty (180) days as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or;
(ii) if If any representation or warranty of Tenant or Guarantor Lessee set forth herein or in any noticecertificate provided by Lessee pursuant to this Lease, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material adverse respect as of the time when the same shall have been made in a way adverse to Lessor and Lessor shall suffer a loss or detriment as a result thereof, including, without limitation, the taking of any action (including, without limitation, the demise of the Premises to Lessee herein) in reliance upon such representation or warranty and, in each case, the facts shall not be conformed to the representation and warranty as soon as practicable in the circumstances (but in no event to exceed thirty (30) days) after written notice to Lessee from Lessor of such inaccuracy and Lessor restored to the position it would have enjoyed had such representation or warranty been accurate at the time it was made; or;
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") If Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become duecreditors, or if a petition or answer proposing the adjudication of Tenant or a Guarantor Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust bankruptcy law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor Lessee shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or;
(iv) if If a receiver, trustee, administrator trustee or liquidator conservator of Tenant or any Guarantor Lessee or of all or substantially all of the assets of Tenant or such Guarantor Lessee or of any Project the Premises or Tenant's Lessee’s or estate therein shall be appointed in any proceeding brought by Tenant or a GuarantorLessee, or if any such receiver, trustee or liquidator conservator shall be appointed in any proceeding brought against Tenant or a Guarantor Lessee and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor Lessee shall consent to or acquiesce in such appointment; or;
(v) if any Project If the Premises shall have been left unoccupied and unattended abandoned for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); orconsecutive days;
(vi) if Tenant If a Letter of Credit has been posted as the Security Deposit or other security hereunder, and the issuer of the Letter of Credit cancels, terminates or refuses to honor it, and Lessee shall fail to renew the Letter of Credit within thirty (30) days or shall fail to post a cash equivalent amount of the Letter of Credit or a Guarantor shall dissolve replacement letter of credit within fifteen (15) days after notice of such cancellation, termination or otherwise fail to maintain its legal existencerefusal; orand
(vii) if Tenant shall default If a monetary Event of Default occurs under Sections 4.1(a)this Lease more than three (3) times within any consecutive twelve (12) month period, 4.1(b) irrespective of whether or 10.3 not such Event of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereofDefault is cured.
(b) If an Event of Default shall have occurred happened and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingcontinuing, Landlord Lessor shall have the right to give Tenant Lessee notice of Landlord's Lessor’s termination of the term Term (provided that Lessor shall not exercise said remedy unless such Event of this LeaseDefault continues to exist after Lessor has provided Lessee with ten (10) days written notice and provided that Lessor is obligated to provide such written notice no more than one time during the Term before exercising said remedy). Upon the giving of such notice, the term of this Lease Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this LeaseTerm, and all rights of Tenant Lessee hereunder shall expire and terminate, but Tenant Lessee shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord Lessor shall have the immediate right, whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(bsubsection 7.01(b), to re-enter reenter and repossess the Premises and the right to remove all persons and property (subject to Section 3.02) therefrom by summary proceedings, ejectment, ejectment or any other legal action or in any lawful manner Landlord Lessor determines to be necessary or desirable, so long as Landlord desirable (provided that Lessor shall not exercise said remedy unless such Event of Default continues to exist after Lessor has provided Lessee with ten (10) days written notice and provided that Lessor is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdictionobligated to provide such written notice no more than one time during the Term before exercising said remedy). Landlord Lessor shall be under no liability by reason of any such re-entryreentry, repossession or removal. No such re-entryreentry, repossession or removal shall be construed as an election by Landlord Lessor to terminate this Lease the Term unless a notice of such termination is given to Tenant Lessee pursuant to Section 5.1(b)subsection 7.01(b) or unless such termination is decreed by a court.
(d) At any time or from time to time after a re-entryreentry, repossession or removal pursuant to Section 5.1(csubsection 7.01(c), whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(bsubsection 7.01(b), Landlord Lessor may (but shall be under no obligation to) relet any or all of the Projects Premises for the account of TenantLessee, in the name of Tenant Lessee or Landlord Lessor or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord Lessor may collect any rents payable by reason of such reletting. Landlord Lessor shall not be liable for any failure to relet any of the Projects Premises or for any failure to collect any rent due upon any such reletting. Notwithstanding the foregoing, Lessor agrees to make reasonable efforts to mitigate its damages under this Lease in the event Lessee actually vacates or advises Lessor that it is, as of a specified date, to vacate the Premises. The phrase “reasonable efforts,” as it relates to Lessor’s duty to attempt to relet the Premises, shall require Lessor to do only the following: (i) notify Lessor’s management company, if any, in writing of the availability of the Premises for reletting and authorize same to advertise as appropriate, (ii) post Lessor’s leasing contact telephone number in an appropriate area of the Premises, and (iii) show the Premises to any prospective lessee interested in the Premises and to any prospective lessee specifically referred to Lessor by Lessee. Under any requirement of Lessor to use “reasonable efforts” as described herein, (i) Lessor shall not be required to relet the Premises ahead of any other properties in the same market not producing any income to Lessor; (ii) Lessor shall be entitled to consider lessee quality, lessee-mix, the financial condition of any prospective lessee, the nature of the Premises, the proposed use of the Premises by any prospective lessee, and any rights of existing sublessees located in the Premises, in making any leasing decision without being deemed to have violated its mitigation requirement hereunder; and (iii) under any new lease entered into by Lessor, Lessor may relet all or any portion of the Premises to create an appropriate block of space for a new lessee, may relet for a greater or lesser term than that remaining at that time under this Lease, and may include free rent, concessions, inducements, alterations and upgrades in the new lease. If a reletting occurs, Lessor shall recoup all of its expenses of reletting (including, without limitation, all expenses relating to remodeling, alterations, repairs, capital improvements, brokerage fees, decorating fees, and fees for architects, designers, space planners and attorneys, giving due regard to the nature of the Premises and its existing uses) before Lessee is entitled to a credit on the damages owed by Lessee hereunder. If Lessor shall do all the foregoing then, anything in this Lease, or any statute, or common law rule to the contrary notwithstanding, Lessor shall be deemed to have met its duty (if any) to mitigate its damages hereunder.
(e) No expiration or earlier termination of the term of this Lease Term pursuant to Section 5.1(bsubsection 7.01(b), by operation of law or otherwise, and no re-entryreentry, repossession or removal pursuant to Section 5.1(csubsection 7.01(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(dsubsection 7.01(d) or otherwise, shall relieve Tenant Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entryreentry, repossession, removal or reletting.
(f) In the event of the any expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant Lessee shall pay to Landlord Lessor all Basic Rent, Additional Rent additional rent and other sums required to be paid by TenantLessee, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entryreentry, repossession or removal; and , and, thereafter, Tenant Lessee shall, until the end of what would have been the term of this Lease Term in the absence of such expiration, termination, re-entryreentry, repossession or removal and whether or not any Projects the Premises shall have been relet, be liable to Landlord Lessor for, and shall pay to LandlordLessor, as the same come due from time-to-time hereunder, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent all additional rent and other sums which would be payable under this Lease by Tenant Lessee in the absence of any such expiration, termination, re-entryreentry, repossession or removal, together with all expenses of Lessor in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys’ fees and expenses (including, without limitation, fees and expenses of appellate proceedings), employee’s expenses, alteration costs and expenses of necessary preparation for such reletting), less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant Lessee pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such relettingsubsection 7.01(d). Tenant Lessee shall pay such liquidated and agreed current damages on the dates on which Basic Rent rent would be payable under this Lease in the absence of such expiration, termination, re-entryreentry, repossession or removal, and Landlord Lessor shall be entitled to recover the same from Tenant Lessee on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property thereon therefrom by reason of the occurrence of an Event of Default, whether or not Landlord Lessor shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(fsubsection 7.01(f), Landlord Lessor shall be entitled to recover from TenantLessee, and Tenant Lessee shall pay to Landlord Lessor on demand, as and for liquidated and agreed final damages for Tenant's Lessee’s default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent additional rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the to date to which Tenant Lessee shall have satisfied in full its obligations under Section 5.1(fsubsection 7.01(f) to pay liquidated and agreed current damages) for what would be the then-then unexpired term of this Lease Term in the absence of such expiration, termination, re-entryreentry, repossession or removal, discounted at a the rate equal to the then current yield on U.S. United States Treasury obligations Notes having a maturity as of comparable maturity to the stated date for expiration of the then existing Term of this Lease plus 2% per annum (the "Treasury “Reference Rate") ”), over (b) the then fair rental value of the Premises for what would be such then unexpired term of this LeasePremises, discounted at the Treasury Reference Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest errorperiod. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord Lessor shall be entitled to the maximum amount allowable under such law.
Appears in 2 contracts
Samples: Lease Agreement (Gordmans Stores, Inc.), Lease Agreement (Gordmans Stores, Inc.)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or and acts shall constitute an "Event of Default" Default under this Lease:
(i) if Tenant at any time during the term of this Lease (and regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal, which have or might have the effect of preventing Tenant from complying with the terms of this Lease), shall (1a) fail to pay make when due any Basic Rent, Additional Rent or other sum as and when payment of rent herein required to be paid by Tenant hereunder, and such failure shall continue for two (2) Business Days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when dueTenant, or (2b) fail to make when due any payment of additional rent or any other sum herein required to be paid by Tenant, or (c) fail to observe or perform any of Tenant's other provision hereof covenants, agreements or obligations hereunder, and if any such failure shall continue as to (b) above for thirty (30) 10 days after written Lessor shall have given Tenant notice of such failure, or as to (c) above for 30 days after Lessor shall have given Tenant of notice specifying such failure (provided, that in the case of any or if such failure which is capable of being cured but default cannot be cured by the payment of money and cannot not, with diligence due diligence, be cured within such 30-30 day periodperiod owing to causes beyond the control of Tenant, if Tenant shall commence fail to proceed promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failuredefault with diligence and continuity); , or
(ii) if any representation Event of Default shall occur under the Agreement or warranty of Tenant or Guarantor set forth herein or in any noticethe Indenture, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any present or future federal bankruptcy act or under any similar federal or state law (or any other law governing a Guarantor)law, or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of its creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to under any present or future federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law bankruptcy act or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) 90 days after the filing thereof; , or
(iv) if a receiver, trustee, administrator trustee or liquidator of Tenant or any Guarantor or of all or substantially all of the assets property of Tenant or such Guarantor or of any Project or Tenant's estate therein the leased premises shall be appointed in any proceeding brought by Tenant or a GuarantorTenant, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) 90 days after such appointment, appointment or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; , or
(v) if at any Project time the leased premises shall have been abandoned or left substantially unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); 30 consecutive days, or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 the interest of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms leased premises or part thereof shall be levied upon or attached in any proceeding and conditions of Section 3.7 hereofsuch process shall not be vacated or discharged within 90 days after such levy or attachment.
(b) If This Lease and the term and estate hereby granted are subject to the limitation that whenever an Event event of Default default shall have occurred happened and be continuing Landlord continuing, then Lessor shall be entitled to all remedies available have the right at its election, then or at any time thereafter while any such event of default shall continue and regardless of and notwithstanding the fact that Lessor has or may have some other remedy hereunder or by virtue hereof, in law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant written notice of LandlordLessor's termination of intention to terminate the term of this Lease. Upon Term on a date specified in such notice, and upon the giving of any such notice, the term of this Lease Term and the estate hereby granted shall expire and terminate on such upon the date so specified in said notice as fully and completely and with the same force and effect as if the date specified in such date notice were the date herein hereinbefore fixed for the expiration of the term of this LeaseTerm, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter hereafter provided.
(c) If an Event of Default shall have happened and be continuing. In the event any such notice is given, Landlord Lessor shall have the immediate right, whether or not the term right of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter entry and repossess possession of the Premises leased premises and the right to remove all persons and property therefrom therefrom. Should Lessor elect to re-enter as herein provided or should Lessor take possession pursuant to legal proceedings or pursuant to any notice provided for by law, Lessor may from time to time relet the leased premises or any part thereof for such term or terms and at such rental or rentals and upon such terms and conditions as Lessor may deem advisable, with the right to make alterations in and repairs of the leased premises.
(c) In the event of any termination of the Term as in this SECTION 22 above provided or as otherwise permitted by law, Tenant shall then peaceably quit and surrender the leased premises to Lessor, and Lessor may, without further notice, enter upon, re-enter, possess and repossess the same by force, summary proceedings, ejectmentejectment or otherwise and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event, neither Tenant nor any person claiming through or under Tenant by virtue of any statute or of an order of any court shall be entitled to possession or to remain in possession of the leased premises, but shall forthwith quit and surrender the leased premises, and Lessor, at its option, shall forthwith, notwithstanding any other legal action provisions of this Lease to the contrary, be entitled to recover from Tenant (in lieu of all other claims for damages on account of such termination) as and for liquidated damages an amount equal to the excess of all the rents reserved hereunder for the unexpired portion of this Lease discounted to the then present worth over the fair rental value of the leased premises at the time of termination for such unexpired portion. The discount rate to be used in discounting reserve rents and in determining such fair rental value shall be the Prime Rate of Xxxxxxx Bank of Jacksonville, N.A. in effect at the time the calculation pursuant to this SUBSECTION (C) shall be required to be made. Nothing herein contained shall, however, limit or prejudice the right of Lessor, in any lawful manner Landlord determines bankruptcy or reorganization or insolvency proceedings, to prove for and obtain as liquidated damages by reason of such termination an amount equal to the maximum allowed by any bankruptcy or reorganization or insolvency proceedings, or to prove for and obtain as liquidated damages by reason of such termination an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such damages are to be proved, whether or not such amount shall be greater, equal to, or less than the amount of the excess referred to above.
(d) If Lessor shall re-enter and obtain possession of the leased premises by reason of or following an event of default, Lessor shall have the right, without notice, to repair or alter the leased premises in such manner as to Lessor may seem necessary or desirableadvisable so as to put the leased premises in good order and to make the same rentable, so long and shall have the right, at Lessor's option to relet the leased premises or any part thereof, and Tenant agrees to pay to Lessor on demand all expenses incurred by Lessor in obtaining possession, and in altering, repairing and putting the leased premises in good order and condition, and in reletting the same, including reasonable fees of attorneys, architects and other experts, and also any other reasonable and legitimate expenses or commissions, and Tenant further agrees to pay to Lessor upon each rental payment date following the date of such re-entry to and including the date set forth in SECTION 3 hereof for the expiration of the Term in effect immediately prior to such re-entry the sums of money which would have been payable by Tenant as Landlord is proceeding rent hereunder on said rent payment dates if Lessor had not re-entered and resumed possession of the leased premises, deducting only the net amount of rent, if any, which Lessor shall actually receive (after deducting from the gross receipts the expenses, costs and payments of every kind of Lessor which in accordance with applicable law andthe terms of this Lease would have been borne by Tenant) in the meantime from and by any reletting of the leased premises, if required and Tenant hereby agrees to be and remain liable for all sums otherwise payable by Tenant under applicable this Lease including, but not limited to, the expenses of Lessor aforesaid, as well as for any defi ciency aforesaid, and Lessor shall have the right from time to time to begin and maintain successive actions or other legal proceedings against Tenant for the recovery of such deficiency or damages or for a sum equal to any installment or installments of rent or additional rent and any other sums payable hereunder, and to recover the same upon the liability of Tenant herein provided, which liability it is expressly covenanted shall survive the issuance of any action to secure possession of the leased premises. Nothing herein contained shall be deemed to require Lessor to wait to begin such action or other legal proceedings until the date when this Lease would have expired by limitation had there been no such event of default.
(e) If under any of the preceding provisions of this SECTION 22, Lessor shall be entitled to give Tenant a notice of termination of the Term, Lessor, without giving such notice of termination, and notwithstanding the continuance of the Term and notwithstanding that Lessor may have re-entered or taken possession of the leased premises pursuant to this SECTION 22, shall have, to the extent permitted by law, under authority all the rights, powers and remedies given to Lessor by the preceding provisions of a court of proper jurisdiction. Landlord this SECTION 22, and Tenant shall be under no liability have the obligations imposed upon it by reason of any such re-entry, repossession or removalprovisions. No such re-entry, repossession entry or removal taking of possession of the leased premises by Lessor shall be construed as an election by Landlord on Lessor's part to terminate this Lease the Term unless a written notice of such termination is intention be given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after unless such termination be decreed by a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term court of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or relettingcompetent jurisdiction.
(f) In the event of the expiration or earlier termination of the term of this Lease or The words "enter," "re-entry enter" or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, "re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or " are not any Projects shall have been relet, be liable restricted to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such datetheir technical legal meaning.
(g) At No right or remedy herein conferred upon or reserved to Lessor is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy given hereunder, or now or hereafter existing at law or in equity or by statute. The failure of Lessor to insist at any time after upon the strict performance of any such expiration or earlier termination of the term covenants or agreements or to exercise any option, right, power or remedy contained in this Lease shall not be construed as a waiver or a relinquishment thereof for the future. The receipt by Lessor of any rent, any additional rent or any other sum payable hereunder with knowledge of the breach of any covenant or agreement contained in this Lease shall not be deemed a waiver of such breach, and no waiver by Lessor of any provision of this Lease shall be deemed to have been made unless expressed in writing and signed by Lessor. In addition to other remedies provided in this Lease, Lessor shall be entitled, to the extent permitted by law, to injunctive relief in case of the violation, or attempted or threatened violation, of any of the covenants, agreements, conditions or provisions of this Lease or re-entry or repossession to a decree compelling performance of any of the Premises covenants, agreements, conditions or removal provisions of persons this Lease, or property thereon by reason to any other remedy allowed to Lessor at law or in equity.
(h) In the event either Lessor or Tenant shall be in default in the performance of any obligations under this Lease and an action shall be brought for the occurrence of an Event of Defaultenforcement thereof, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord the prevailing party shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu reimbursement of all liquidated and agreed current damages beyond the date of such demand as outlined expenses incurred in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such lawconnection therewith including reasonable attorneys' fees.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any The occurrence of any one or more of the following occurrences events (any such event being specified herein as a "failure" or acts "default") shall constitute an "Event of Default" Default under this Lease:
: (i) if a failure by Tenant shall to make (1regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant from complying with the provisions of this Lease): (x) fail any payment of Basic Rent which continues unremedied for a period of three (3) days after written notice ("Nonpayment Notice") thereof given to pay Tenant by Landlord or Lender or Lender's designee, or (y) any Basic Rent, payment of Additional Rent or other sum as and when herein required to be paid by Tenant hereunderwhich continues unremedied for a period of fifteen (15) days after a Nonpayment Notice is given to Tenant by Landlord or Lender or Lender's designee; (ii) failure by Tenant to perform and observe, or a violation or breach of, any other provision in this Lease and such failure default shall continue for two a period of sixty (2) Business Days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, or (2) fail to observe or perform any other provision hereof and such failure shall continue for thirty (3060) days after written notice thereof is given by Landlord or Lender or Lender's designee to Tenant or if such default is of such failure (provided, a nature that in the case of any such failure which is capable of being cured but it cannot be cured by the payment of money and cannot with diligence reasonably be cured within such 30-day periodperiod of sixty (60) days, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured period shall be extended for such period longer time as is reasonably necessary provided that Tenant has commenced to complete the curing thereof cure such default within said period of sixty (60) days and is actively, diligently and in good faith proceeding with diligencecontinuity to remedy such default, but provided, however, that in no event to exceed one hundred twenty shall Tenant be permitted a cure period greater than ten (12010) days from less than the date of such failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered period allowed to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of cure an equivalent default under the time when the same shall have been madeLoan Documents; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease hereunder shall (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor"A) shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall voluntarily be adjudicated a bankrupt or become insolvent insolvent, (B) or shall make an voluntarily consent to the appointment of a receiver or trustee for itself or for any of the Properties, (C) voluntarily file a petition seeking relief under the bankruptcy or other similar laws of the United States, any state or any jurisdiction, or (D) voluntarily file a general assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereofcreditors; or
(iv) if a receivercourt shall enter an order, trusteejudgment or decree appointing, administrator or liquidator with the voluntary consent of Tenant or any Guarantor guarantor of Tenant's obligations hereunder, a receiver or trustee for Tenant or any guarantor of all Tenant's obligations hereunder or substantially all for the Properties or approving a petition filed against Tenant or any guarantor of Tenant's obligations hereunder which seeks relief under the bankruptcy or other similar laws of the assets United States or any State, and such order, judgment or decree shall remain in force, undischarged or unstayed, sixty (60) days after it is entered; (v) Tenant or any guarantor of Tenant's obligations hereunder shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; or (vi) the estate or interest of Tenant or such Guarantor or of in any Project or Tenant's estate therein Property shall be appointed levied upon or attached in any proceeding brought by Tenant and such estate or a Guarantor, interest is about to be sold or if any transferred or such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and process shall not be vacated or discharged within ninety sixty (9060) days after such appointment, levy or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereofattachment.
(b) If an any Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingoccurred, Landlord shall have the right at its option, then or at any time thereafter, to do any one or more of the following without demand upon or notice to Tenant:
(i) Landlord may give Tenant notice (following the occurrence of an Event of Default) of Landlord's termination intention to terminate this Lease on a date specified in such notice (which date shall be no sooner than five (5) days after the date of the term of this Leasenotice). Upon the giving of such noticedate therein specified, the term of this Lease Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminateterminate as if such date were the date hereinabove fixed for the expiration of the Term, but Tenant shall remain liable for all its obligations hereunder through the date hereinabove fixed for the expiration of the Term, including its liability for Basic Rent and Additional Rent as hereinafter provided.
(cii) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate rightmay, whether or not the term Term of this Lease shall have been terminated pursuant to Section 5.1(bclause (i) above give Tenant notice (following the occurrence of an Event of Default) to surrender any or all of the Properties to Landlord on a date specified in such notice (which date shall be no sooner than five (5) days after the date of the notice), at which time Tenant shall surrender and deliver possession of any or all of the Properties to re-enter and repossess Landlord unless the Premises and Event of Default for which the right to termination is effected has been cured by Tenant. Upon or at any time after taking possession of any or all of the Properties, Landlord may remove all any persons and or property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdictiontherefrom. Landlord shall be under no liability for or by reason of any such re-entry, repossession or removal. No such re-entry, entry or repossession or removal shall be construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such termination is given intention to Tenant pursuant to Section 5.1(b)clause (i) above.
(diii) At After repossession of any time or from time to time after a re-entry, repossession or removal all of the Properties pursuant to Section 5.1(c)clause (ii) above, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b)clause (i) above, Landlord may (but shall be under no obligation to) relet the Property or any part thereof to such tenant or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, tenants for such term or terms and (which may be greater or less than the period which would otherwise have constituted the balance of the Term) for such rent, on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its absolute reasonable discretion, may determine. ; and Landlord may shall collect and receive any rents payable by reason of such reletting. The rents received on such reletting shall be applied (A) first to the reasonable and actual expenses of such reletting and collection, including without limitation necessary renovation and alterations of the Properties, reasonable and actual attorneys' fees and any reasonable and actual real estate commissions paid, and (B) thereafter toward payment of all sums due or to become due Landlord hereunder. If a sufficient amount to pay such expenses and sums shall not be liable for realized or secured, then Tenant shall pay Landlord any failure such deficiency monthly, and Landlord may bring an action therefor as such monthly deficiency shall arise. Landlord shall not, in any event, be required to relet pay Tenant any sums received by Landlord on a reletting of the Properties in excess of the rent provided in this Lease, but such excess shall reduce any accrued present or future obligations of Tenant hereunder. Landlord's re-entry and reletting of the Properties without termination of this Lease shall not preclude Landlord from subsequently terminating this Lease as set forth above. Landlord may make such Alterations as Landlord in its reasonable discretion may deem advisable. Tenant agrees to pay Landlord, as Additional Rent, immediately upon demand, all reasonable expenses incurred by Landlord in obtaining possession, in performing Alterations and in reletting any of the Projects or for any failure to collect any rent due upon any such relettingProperties, including fees and commissions of attorneys, architects, agents and brokers.
(eiv) No expiration If Tenant shall fail to make payment of any installment of Basic Rent or earlier termination of any Additional Rent on or before the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive date when each such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Defaultpayment is due, Tenant shall pay to Landlord all Landlord, a sum equal to five (5%) percent per annum above the then current Prime Rate, as hereinafter defined, of the amount unpaid (the "Default Rate") computed from the date such payment of Basic Rent, Rent or Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the was due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until payment. The term "Prime Rate" shall mean the end prime rate of what would have been the term of this Lease interest published in the absence of such expirationWall Street Journal or its successor, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable from time to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such datetime.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event event of Default" default under this Lease:
; (i) if Tenant Lessee shall (1l) fail to pay any Basic Rent, Additional Rent additional rent or other sum as and when required to be paid by Tenant hereunder, Lessee hereunder and such failure shall continue for two (2) Business Days 10 days after delivery notice to Lessee of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, failure or (2) fail to observe or perform any other provision hereof and such failure shall continue for thirty (30) 30 days after written notice to Tenant Lessee of such failure (provided, that in the case of any such failure default which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure default may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or
or (ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any federal or state bankruptcy law (or any other law governing a Guarantor)similar federal or state law, or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust bankruptcy law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor Lessee shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) 90 days after the filing thereof; or
or (iviii) if a receiver, trustee, administrator trustee or liquidator of Tenant or any Guarantor Lessee or of all or substantially all of the assets of Tenant or such Guarantor Lessee or of any Project the Premises or TenantLessee's estate therein shall be appointed in any proceeding brought by Tenant or a GuarantorLessee, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor Lessee and shall not be discharged within ninety (90) 90 days after such appointment, or if Tenant or a Guarantor Lessee shall consent to or acquiesce in such appointment; or
or (viv) if any Project the Premises shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereof30 days.
(b) If an Event event of Default default shall have occurred happened and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingcontinuing, Landlord Lessor shall have the right to give Tenant Lessee notice of LandlordLessor's termination of intention to terminate the term of this LeaseLease on a date not less than 5 days after the date of such notice. Upon the giving of such notice, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant Lessee hereunder shall expire and terminate, but Tenant Lessee shall remain liable as hereinafter provided.
(c) If an Event event of Default default shall have happened and be continuing, Landlord Lessor shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(bparagraph 17(b), to re-enter and repossess the Premises by summary proceedings, ejectment or in any manner Lessor determines to be necessary or desirable and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdictiontherefrom. Landlord Lessor shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, entry or repossession or removal of the Premises shall be construed as an election by Landlord Lessor to terminate the term of this Lease unless a notice of such termination intention is given to Tenant Lessee pursuant to Section 5.1(bparagraph 17(b), or unless such termination is decreed by a court of competent jurisdiction.
(d) At any time or from time to time after a the re-entry, entry or repossession or removal of the Premises pursuant to Section 5.1(cparagraph 17(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(bparagraph 17(b), Landlord Lessor may (but shall be under no obligation to) relet any or all of the Projects Premises for the account of TenantLessee, in the name of Tenant Lessee or Landlord Lessor or otherwise, without notice to TenantLessee, for such term or terms and on such conditions and for such uses as LandlordLessor, in its absolute discretion, may determine, subject to the provisions of the Ground Lease. Landlord Lessor may collect and receive any rents payable by reason of such reletting. Landlord Lessor shall not be liable for any failure to relet any of the Projects Premises or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(bparagraph 17(b), by operation of law or otherwise, and no re-entry, entry or repossession or removal of the Premises pursuant to Section 5.1(cparagraph 17(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(dparagraph 17(d) or otherwise, shall relieve Tenant Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal repossession or reletting.
(f) In the event of the any expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event event of Defaultdefault, Tenant shall Lessee will pay to Landlord Lessor all Basic Rent, Additional Rent additional rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof Lessee to and including the date of such expiration, termination, re-entryentry or repossession; and, repossession or removal; and thereafter, Tenant Lessee shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entryentry or repossession, repossession or removal and whether or not any Projects the Premises shall have been relet, be liable to Landlord Lessor for, and shall pay to LandlordLessor, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent additional rent and other sums which would be payable under this Lease by Tenant Lessee in the absence of any such expiration, termination, re-entry, repossession entry or removalrepossession, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant Lessee pursuant to Section 5.1(dparagraph 17(d), after deducting from such proceeds all Lessor's expenses of Landlord in connection with such reletting (including, without limitation, including all repossession costs, brokerage commissions, property management fees, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings)expenses, employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall Lessee will pay such liquidated and agreed current damages on the dates days on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession entry or removalrepossession, and Landlord Lessor shall be entitled to recover the same from Tenant Lessee on each such dateday.
(g) At any time after any such expiration or earlier termination of the term of this Lease or The words "re-entry enter" or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, "re-entry, repossession or removal, discounted at a rate equal " as used in this paragraph 17 are not restricted to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such lawtheir technical meaning.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Section 18.01. Any one or more of the following occurrences or acts events shall constitute an event of default ("Event of Default" ") under this Lease:
(ia) if Tenant default shall (1) fail to pay be made in the due and punctual payment of any Basic Rent, Additional Rent net rent or other sum additional rent payable under this Lease or any part hereof when and as the same shall become due and when required to be paid by Tenant hereunderpayable, and such failure default shall continue for two a period of ten (210) Business Days days after delivery notice thereof from Lessor to Lessee;
(b) if default shall be made by Lessee in keeping, observing or performing any of written notice from Landlord the terms, covenants or conditions contained in this Lease on Lessee's part to be kept, observed or performed, other than those referred to in the foregoing subdivision (or Lendera) to Tenant that such payment was not received when due, or (2) fail to observe or perform any other provision hereof and such failure default shall continue for a period of thirty (30) days after written notice thereof from Lessor to Tenant of such failure (providedLessee, that or in the case of any such failure a default or a contingency which is capable of being cured but cannot be cured by the payment of money and cannot with reasonable diligence be cured within such thirty (30-) day periodperiod from Lessor's notice, if Tenant Lessee shall fail to promptly commence promptly to cure the same and thereafter to prosecute the curing thereof of the same with diligencereasonable diligence (it being intended that in connection with a default which is not susceptible of being cured with reasonable diligence within such thirty (30) day period from Lessor's notice, that the time within which such failure may be cured afforded to Lessee to cure the same shall be extended for such a period as is may be necessary to complete for the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failurethereof); or;
(iic) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any present or future federal bankruptcy act or under any similar federal or state law (or any other law governing a Guarantor)law, or shall be adjudicated a bankrupt bankruptcy or become insolvent or shall make an assignment for the benefit of Lessee's creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a ;
(d) A petition or answer proposing the adjudication of Tenant or a Guarantor Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar under federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety one hundred twenty (90120) days after the filing thereof; or;
(ive) if a A receiver, trustee, administrator trustee or liquidator of Tenant or any Guarantor Lessee or of all or substantially all of the Lessee's assets of Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a GuarantorLessee, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor Lessee and shall not be discharged within ninety one hundred twenty (90120) days after such appointment, or if Tenant or a Guarantor Lessee shall consent to or acquiesce in such appointment;
(f) The estate or interest of Lessee in the Demised Premises or any part thereof shall be levied upon or attached in any proceeding and such process shall not be vacated or discharged within one hundred twenty (120) days after such levy or attachment; or
(vg) if any Project The Demised Premises shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation be vacated or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained abandoned by Tenant in accordance with the terms and conditions of Section 3.7 hereofLessee.
(b) If an Section 18.02. Lessor at any time during the continuance of any Event of Default may, at its option, give notice to Lessee specifying such Event of Default or events of default and stating that this Lease and the term hereby demised shall have occurred expire and be continuing Landlord terminate on the date specified in such notice, which shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's termination of the term of this Lease. Upon least fifteen (15) days after the giving of such notice, and upon the date specified in such notice, this Lease and the term hereby demised and all rights of Lessee under this Lease shall expire and terminate. Upon such termination, Lessee shall quit and peacefully surrender the Demised Premises to Lessor and Lessor may, without further notice, re-enter the Demised Premises and possess and repossess itself thereof, by summary proceedings or ejectment, may dispossess Lessee and remove Lessee and all other persons and property from the Demised Premises and may have, hold and enjoy the Demised Premises. Lessor, at its option, shall forthwith be entitled to recover from Lessee, in lieu of all other claims for damages on account of such termination and in addition to all amounts due and owing hereunder by Lessee to Lessor at the date of such termination, as and for liquidated damage, an amount equal to the excess of all rents reserved hereunder for the unexpired portion of the term of this Lease and then in effect discounted at a rate per annum equal to the estate hereby granted shall expire and terminate on discount rate then in effect at the Federal Reverse Bank for the Federal Reserve District in which the Demised Premises are located, to the then present worth, over the fair rental value of the Demised Premises at the time of such date termination for such unexpired portion as fully and completely and with the same effect as if such date were may be proved by Lessee, discounted at a like rate. Nothing herein contained shall limit or prejudice the date herein fixed for the expiration right of the term of this LeaseLessor, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate right, whether in any bankruptcy or not the term of this Lease shall have been terminated pursuant to Section 5.1(b)reorganization or insolvency proceeding, to re-enter prove for and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long obtain as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability liquidated damages by reason of such termination an amount equal to the maximum allowed by any bankruptcy or reorganization or insolvency proceedings, or to prove for and obtain as liquidated damages by reason of such re-entrytermination, repossession an amount equal to the maximum allowed by any statute or removal. No rule of law whether such re-entry, repossession or removal amount shall be construed as an election by Landlord greater or less than the excess referred to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b)above.
(d) Section 18.03. At any time or from time to time after a re-entryany such termination, repossession Lessor may relet the Demised Premises or removal pursuant to any part thereof in the name of Lessor for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the term of this Lease) and on such conditions as Lessor, in its reasonable discretion, may determine and may collect and receive the rents therefor.
Section 5.1(c)18.04. In the event of any such expiration or termination, whether or not the term of this Lease Demised Premises or any part thereof shall have been terminated pursuant to Section 5.1(b)relet, Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant Lessee shall pay to Landlord all Basic Rent, Additional Rent the Lessor (in lieu of and other sums as an alternative remedy to the liquidated damages set forth in Section 18.02) a sum equal to the net rent and the additional rent required to be paid by Tenant, in each case together with interest thereon at Lessee up to the Rate from the due date thereof to and including the date time of such expirationexpiration or termination of this Lease, termination, re-entry, repossession or removal; and thereafter, Tenant shallthereafter Lessee, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord Lessor for, and shall pay to Landlord, Lessor as liquidated the same becomes due:
(a) the equivalent of the amount of such net rent and agreed current damages: (i) all Basic Rent, Additional Rent and other sums the additional rent which would be payable under this Lease by Tenant Lessee if this Lease were still in the absence of any such expirationeffect, termination, re-entry, repossession or removal, less less
(iib) the net proceeds, if any, proceeds of any reletting effected for the account of Tenant pursuant to the provisions of Section 5.1(d)18.04 hereof, after deducting from Lessor's reasonable expenses incurred in putting the Demised Premises in good condition, but only to the extent Lessee would be obligated to do so upon expiration of the term hereof, and such proceeds all other reasonable expenses of Landlord Lessor in connection with such reletting (reletting, including, without limitation, all repossession costs, brokerage commissions, and the reasonable attorneys' fees and expenses (including fees disbursements of Lessor's attorneys. Lessor shall be required to take such action as shall be necessary to mitigate its damages hereunder, including, but not limited to, reletting the Demised Premises.
Section 18.05. Lessor and expenses Lessee, so far as permitted by law, hereby waive trial by jury in any action, proceeding or counterclaim brought by either of appellate proceedings)the parties hereto against the other on any matter whatsoever arising out of or in any way connected with this Lease, employees' expensesthe relationship of Lessor and Lessee, alteration costs and expenses Lessee's use of preparation for such reletting)occupancy of said Premises or any claim of injury or damage. Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expirationThe terms "enter", termination"re-enter", "entry", or "re-entry", repossession or removal, and Landlord shall be entitled as used in this Lease are not restricted to recover the same from Tenant on each such datetheir technical legal meaning.
(g) At Section 18.06. No failure by Lessor or by Lessee to insist upon the strict performance of any time after any such expiration term or earlier termination of the term agreement of this Lease or re-entry to exercise any right or repossession remedy consequent upon a breach thereof, and no acceptance by Lessor of full or partial rent during the Premises continuance of any such breach, shall constitute a waiver of any such breach or removal of persons such term or property thereon agreement. No term or agreement of this Lease to be kept, observed or performed by reason of the occurrence of an Event of DefaultLessor or by Lessee, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f)no breach thereof, Landlord shall be entitled to recover from Tenantwaived, and Tenant shall pay to Landlord on demandaltered or modified except by a written instrument executed by Lessor or by Lessee, as and for liquidated and agreed final damages for Tenant's default and in lieu the case may be. No waiver of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable any breach shall affect or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under alter this Lease, in but each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired every term or agreement of this Lease shall continue in the absence of such expiration, termination, re-entry, repossession full force and effect with respect to any other then existing or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such lawsubsequent breach thereof.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any a. The occurrence of any one or more of the following occurrences or acts events shall constitute an "Event of Default" Default under this Lease:
: (i) if a failure by Tenant shall to make (1regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant from complying with the provisions of this Lease): (x) fail any payment of Basic Rent which continues unremedied for a period of five (5) days after written notice in accordance with Paragraph 21 below ("NONPAYMENT NOTICE") thereof given to pay Tenant by Landlord or Lender or Lender's designee, or (y) any Basic Rent, payment of Additional Rent or other sum as and when herein required to be paid by Tenant hereunderwhich continues unremedied for a period of ten (10) days after a Nonpayment Notice is given to Tenant by Landlord or Lender or Lender's designee; (ii) Tenant's failure to deliver any documents or to comply with any of its other obligations pursuant to Paragraphs 16 or 22, and respectively, within the applicable time period set forth therein (unless such failure shall continue is cured within three (3) days after Landlord's second written request for two (2) Business Days after delivery of written notice from Landlord (such documents or Lender) to Tenant that such payment was not received when duecompliance), or Tenant's breach of the provisions of Paragraph 17; (2iii) fail Tenant's failure to observe comply with the terms of any Permitted Encumbrance, REA, Legal Requirement or perform any other provision hereof and such failure shall continue for Insurance Requirement within the times set forth therein, or if no time is specified therein, then within thirty (30) days after written notice thereof is given by Landlord or Lender or Lender's designee to Tenant ("NONPERFORMANCE NOTICE") or if such default is of such failure (provided, a nature that in the case of any such failure which is capable of being cured but it cannot be cured by the payment of money and cannot with diligence reasonably be cured within such period of thirty (30-day period) days, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured period shall be extended for such period longer time as is reasonably necessary provided that Tenant has commenced to complete the curing thereof with diligence, but in no event to exceed one hundred twenty cure such default within said period of thirty (12030) days from the date and is actively, diligently and in good faith proceeding with continuity to remedy such default; (iv) failure by Tenant to perform and observe, or a violation or breach of, any other provision in this Lease and such default shall continue for a period of thirty (30) days after a Nonperformance Notice is given by Landlord or Lender or Lender's designee to Tenant or if such default is of such failure)a nature that it cannot reasonably be cured within such period of thirty (30) days, such period shall be extended for such longer time as is reasonably necessary provided that Tenant has commenced to cure such default within said period of thirty (30) days and is actively, diligently and in good faith proceeding with continuity to remedy such default; or
(iiv) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iiiA) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall voluntarily be adjudicated a bankrupt or become insolvent insolvent, (B) voluntarily consent to the appointment of a receiver or shall make an trustee for itself or for any of the Leased Premises, (C) voluntarily file a petition seeking relief under the bankruptcy or other similar laws of the United States, any state or any jurisdiction, or (D) voluntarily file a general assignment for the benefit of creditors creditors; (vi) a court shall enter an order, judgment or shall admit in writing its inability to pay its debts generally as they become duedecree appointing, or if a petition or answer proposing with the adjudication voluntary consent of Tenant or Guarantor, a receiver or trustee for Tenant or Guarantor as or for the Leased Premises or approving a bankrupt petition filed against Tenant or its reorganization pursuant to any federal Guarantor which seeks relief under the bankruptcy or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law other similar laws of the United States or any similar federal State, and such order, judgment or state law decree shall be filed remain in any court and Tenant force, undischarged or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within unstayed, ninety (90) days after it is entered; (vii) Tenant or Guarantor hereunder shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; (viii) the filing thereof; or
(iv) if a receiver, trustee, administrator estate or liquidator interest of Tenant or any Guarantor or of all or substantially all of in the assets of Tenant or such Guarantor or of any Project or Tenant's estate therein Leased Premises shall be appointed levied upon or attached in any proceeding brought by Tenant and such estate or a Guarantor, interest is about to be sold or if any transferred or such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and process shall not be vacated or discharged within ninety (90) days after such appointment, levy or if Tenant attachment; or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with breach or default of Guarantor under the terms and conditions of Section 3.7 hereofGuaranty.
(b) b. If an any Event of Default shall have occurred and be continuing Landlord shall be entitled continuing, Landlord, in addition to all any other rights or remedies available it may have at law or in equity. Without limiting , may do any one or more of the foregoingfollowing:
(i) elect by written notice to Tenant to terminate this Lease; or
(ii) perform, on behalf and at the expense of Tenant (entering upon the Leased Premises for such purpose, if necessary), any obligation of Tenant under this Lease which Tenant has failed to perform and of which Landlord shall have given Tenant notice, the cost of which performance or liability by Landlord shall be deemed Additional Rent and incurred for the account of Tenant and Tenant shall reimburse Landlord therefor and save Landlord harmless therefrom upon demand provided, however, that Landlord may cure any such default described in this subparagraph prior to the expiration of the waiting period established in Section 19.1, but after notice to Tenant if the curing of such default prior to the expiration of said waiting period is reasonably necessary to protect the Leased Premises or Landlord's interest in the Premises, or to prevent injury or damage to persons or property. If Tenant shall fail to reimburse Landlord upon demand for any amount paid for the account of Tenant hereunder, said amount shall be added to and become due as a part of the next payment of Basic Rent due hereunder. Notwithstanding anything to the contrary contained herein, in the case of emergency, notice required pursuant to this Paragraph 19 may be given orally or in any other reasonably due and sufficient manner having regard to the emergency and the attending circumstances. If any such notice shall not be given in the manner described in Paragraph 21 of this Lease entitled "Notices", then as soon thereafter as practicable, such notice shall be followed up by notice given in the manner prescribed in said Paragraph. No entry by Landlord, in accordance with the provisions of this Paragraph, shall be deemed to be an eviction of Tenant. Landlord's performance of any such covenant shall neither subject Landlord to liability for any loss, inconvenience or damage to Tenant nor be construed as a waiver of Tenant's default or of any other right or remedy of Landlord in respect of such default, or as a waiver of any covenant, term or condition of this Lease; or
(iii) immediately, using such force as may be reasonably necessary, re-enter upon the Premises, remove all persons and property therefrom, and store such property in a public warehouse or elsewhere at the sole cost and for the account of Tenant, all without service of notice or resort to give legal process, without being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby (except for any loss or damage resulting from or caused by the gross negligence or criminal act of Landlord or its employees, agents or contractors), and without such re-entry being deemed to terminate this Lease.
c. In the event Landlord re-enters upon the Premises as provided in clause (iii) of the foregoing Section 19.b or takes possession of the Premises as provided herein or pursuant to legal proceedings or pursuant to any notice provided for by law, then in addition to all other rights and remedies provided or accruing to Landlord at law or in equity:
(i) Landlord may terminate this Lease and forthwith repossess the Premises and remove all persons or property therefrom and be entitled to recover from Tenant, as damages, the sum of money equal to the total of (i) the reasonable cost of recovering the Premises, (ii) the accrued and unpaid rentals owed at the time of termination plus interest thereon from such due date at the maximum rate permitted by law, (iii) the discounted net present value, at the discount rate of the Federal Reserve Bank of San Francisco, California, of the balance of the Base Rent for the remainder of the Term to the extent the same exceeds the then fair market rental value of the Premises for the balance of the Term (with due consideration for the costs and delay in reletting), and (iv) any other sum of money and damages owed by Tenant to Landlord; or
(ii) Landlord may terminate Tenant's right of possession (but not this Lease) and may repossess the Premises without demand or notice of any kind to Tenant and without terminating this Lease in which event Landlord shall, to the extent required under applicable law, relet the same for the account of Tenant for such rent and upon such terms as shall be satisfactory to Landlord. For the purpose of such reletting, Landlord is authorized to make repairs, changes, alterations or additions to the Premises to make same relettable, and (i) if Landlord shall be unable to relet the Premises, or (ii) if the same are relet and sufficient sums shall not be realized from such reletting (after paying: (a) the unpaid rentals due under the Lease earned, but unpaid at the time of reletting plus interest thereon at the maximum rate permitted by applicable law, (b) the cost of recovering possession, including Landlords attorney's termination fees, (c) all of the costs and expenses of reletting including advertising therefor, decorations, repairs, changes, alterations and additions by Landlord, and (d) the expense of the collection of the Basic Rent and Additional Rent accruing therefrom) to satisfy the rent and all other charges provided for in this Lease to be paid by Tenant then Tenant shall pay to Landlord, as damages, the sum equal to the amount of the Basic Rent, and Additional Rent and other expenses payable by Tenant for such period or periods, or if the Premises have been relet, Tenant shall satisfy and pay any such deficiency upon demand therefore from time to time and Tenant agrees that Landlord may file suit to recover any sums falling due under the terms of this Paragraph from time to time upon one or more occasions without Landlord being obligated to wait until expiration of the term of this Lease. Upon the giving of such notice, the term of this Lease and the estate hereby granted Such reletting shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by on the part of Landlord to terminate this Lease unless a written notice of such termination is be given to Tenant pursuant to Section 5.1(b).
(d) At by Landlord. Notwithstanding any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b)such reletting without termination, Landlord may (at any time thereafter elect to terminate this Lease for such previous breach. Failure of Landlord to declare any default immediately upon occurrence thereof or delay in taking any action in connection therewith shall not waive such default but Landlord shall be under no obligation to) relet have the right to declare any or all of such default at any time thereafter.
d. In the Projects event that Landlord at any time terminates this Lease for the account of any default by Tenant, in the name of Tenant or Landlord or otherwise, without notice addition to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. any other remedies Landlord may collect any rents payable have, Landlord may recover from Tenant (i) all damages Landlord may incur by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b)default, by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneyscourt costs, attorneys fees, alteration, reletting advertising and refitting and repair costs, (ii) the accrued and unpaid rentals owed at the time of' fees and expenses termination plus interest thereon from such due date at the maximum rate permitted by law, (including fees and expenses of appellate proceedings)iii) the discounted net present value, employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on at the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination discount rate of the term Federal Reserve Bank of this Lease or re-entry or repossession San Francisco, California, of the Premises or removal of persons or property thereon by reason balance of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and any other sums which would be amounts payable under this Lease, in each case from by Tenant for the date remainder of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal Term to the then yield on U.S. Treasury obligations of comparable maturity to extent the Term (the "Treasury Rate") over (b) same exceeds the then fair market rental value of the Premises for what would the balance of the Term (with due consideration given to the costs and delay of reletting), and (iv) any other sum of money and damages owed by Tenant to Landlord. All such amounts shall be such then unexpired term immediately due and payable from Tenant to Landlord.
e. In the event of a default by Landlord under this Lease, discounted Tenant's sole and exclusive remedy shall be an action at the Treasury Rate law for the same period damages (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(gexcluding consequential damages), the following and Tenant shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall not be entitled to terminate this Lease, abate or "off-set" or deduct from Rent, or exercise any legal or eqxxxxxle remedy that would result in a termination of this Lease or abatement or "off-set" of or deduction from the maximum amount allowable under such lawRent.
Appears in 1 contract
Samples: Lease Agreement (Dave & Busters Inc)
Conditional Limitations; Default Provisions. (a) Any The occurrence of any one or more of the following occurrences events (any such event being specified herein as a “failure” or acts “default”) shall constitute an "Event of Default" Default under this Lease:
: (i) if a failure by Tenant to make (regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant from complying with the provisions of this Lease): (x) any payment of Basic Rent which continues unremedied for a period of ten (10) business days after written notice (“Nonpayment Notice”) thereof is given to Tenant by Landlord (provided, however, that after Landlord has given Tenant a Nonpayment Notice on two (2) prior occasions during any twelve (12) month period, Landlord shall not be required to give Tenant a Nonpayment Notice for any subsequent failure during such twelve (112) fail to pay month period), or (y) any Basic Rent, payment of Additional Rent or other sum as and when herein required to be paid by Tenant hereunder, and such failure shall continue for two (2) Business Days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, or (2) fail to observe or perform any other provision hereof and such failure shall continue for thirty (30) days after written notice to Tenant of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended continues unremedied for a period of thirty (30) days after a Nonpayment Notice is given to Tenant by Landlord (other than provided, however, that after Landlord has given Tenant a Nonpayment Notice on two (2) prior occasions during any twelve (12) month period, Landlord shall not be required to give Tenant a Nonpayment Notice for renovation or reconstruction or any subsequent failure during periods of seasonal closuresuch twelve (12) month period); or
(ii) subject to Paragraph 18(b) above, failure by Tenant to perform and observe, or a violation or breach of, any other provision in this Lease and such default shall continue for a period of thirty (30) days after written notice thereof is given by Landlord to Tenant or if such default is of such a nature that it cannot reasonably be cured within such period of thirty (30) days, such period shall be extended for such longer time as is reasonably necessary not to exceed ninety (90) days in the aggregate, provided that Tenant has commenced to cure such default within said period of thirty (30) days and is actively, diligently and in good faith proceeding with continuity to remedy such default; (iii) Tenant shall (A) voluntarily be adjudicated a bankrupt or insolvent, (B) voluntarily consent to the appointment of a receiver or trustee for itself or for the Leased Premises, (C) voluntarily file a petition seeking relief under the bankruptcy or other similar laws of the United States, any state or any jurisdiction, or (D) voluntarily file a general assignment for the benefit of creditors; (iv) a court shall enter an order, judgment or decree appointing, with the voluntary consent of Tenant, a receiver or trustee for Tenant or for the Leased Premises or approving a petition filed against Tenant which seeks relief under the bankruptcy or other similar laws of the United States or any State, and such order, judgment or decree shall remain in force, undischarged or unstayed, ninety (90) business days after it is entered; (v) Tenant shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; (vi) if the estate or interest of Tenant in the Leased Premises shall be levied upon or a Guarantor attached in any proceeding and such estate or interest is about to be sold or transferred or such process shall dissolve not be vacated or otherwise fail to maintain its legal existencedischarged within ninety (90) business days after such levy or attachment; or
or (vii) if the representations and warranties of Tenant contained in Paragraph 34 of this Lease shall be or become untrue or inaccurate in any respect. The foregoing notwithstanding, Lender and its successors, assigns and purchasers shall have no obligation to give Tenant any Nonpayment Notice with respect to any payment default under Sections 4.1(a), 4.1(b) or 10.3 the terms of this Lease
(viii) if any Guarantor shall default . If Lender or its successor, assigns or purchasers have succeeded to the interests of Landlord under the provisions of its guaranty; or
(ix) if this Lease, Tenant shall fail be in default (i) in the payment of Basic Rent if such payment of Basic Rent remains unpaid for a period of ten (10) days after the applicable Basic Rent Payment Date and (ii) with respect to maintain any insurance required to be maintained by Tenant in accordance with the terms payment of Additional Rent is not paid within thirty (30) days after the date which such Additional Rent is due and conditions of Section 3.7 hereofpayable.
(b) If an any Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingoccurred, Landlord shall have the right at its option, then or at any time thereafter, during the continuance of such Event of Default, to give Tenant notice of Landlord's termination do any one or more of the term of following without demand upon or (except as provided in this LeaseParagraph 20(b)) notice to Tenant:
(i) Landlord may terminate this Lease effective on a date specified in a notice to Tenant. Upon the giving of such noticedate therein specified, the term of this Lease Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminateterminate as if such date were the date herein above fixed for the expiration of the Term, but Tenant shall remain liable for all its obligations hereunder through the date herein above fixed for the expiration of the Term, including its liability for Basic Rent and Additional Rent as hereinafter provided.
(cii) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate rightmay, whether or not the term Term of this Lease shall have been terminated pursuant to Section 5.1(b)clause (i) above, give Tenant notice (following the occurrence of an Event of Default) to re-enter surrender the Leased Premises to Landlord on a date specified in such notice, at which time Tenant shall surrender and repossess deliver possession of the Leased Premises and to Landlord. Upon or at any time after taking possession of the right to Leased Premises, Landlord may remove all any persons and or property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdictiontherefrom. Landlord shall be under no liability for or by reason of any such re-entry, repossession or removal. No such re-entry, entry or repossession or removal shall be construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such termination is given intention to Tenant pursuant to Section 5.1(b)clause (i) above.
(diii) At any time or from time to time after a re-entry, After repossession or removal of the Leased Premises pursuant to Section 5.1(c)clause (ii) above, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b)clause (i) above, Landlord may (but shall be under no obligation to) use commercially reasonable efforts to relet the Leased Premises or any part thereof to such tenant or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, tenants for such term or terms and (which may be greater or less than the period which would otherwise have constituted the balance of the Term) for such rent, on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its absolute reasonable discretion, may determine. ; and Landlord may shall collect and receive any rents payable by reason of such reletting. The rents received on such reletting shall be applied (A) first to the reasonable and actual expenses of such reletting and collection, including without limitation necessary renovation and alterations of the Leased Premises, reasonable and actual attorneys’ fees and any reasonable and actual real estate commissions paid, and (B) thereafter toward payment of all sums due or to become due Landlord hereunder. If a sufficient amount to pay such expenses and sums shall not be liable for realized or secured, then Tenant shall pay Landlord any failure such deficiency monthly, and Landlord may bring an action therefor as such monthly deficiency shall arise. Landlord shall not, in any event, be required to relet pay Tenant any sums received by Landlord on a reletting of the Projects Leased Premises in excess of the rent provided in this Lease, but such excess shall reduce any accrued present or for any failure future obligations of Tenant hereunder. Landlord’s re-entry and reletting of the Leased Premises without termination of this Lease shall not preclude Landlord from subsequently terminating this Lease as set forth above. Landlord may make such Alterations as Landlord in its reasonable discretion may deem advisable. Tenant agrees to collect any rent due pay Landlord, as Additional Rent, immediately upon any such relettingdemand, all reasonable expenses incurred by Landlord in obtaining possession, in performing Alterations and in reletting the Leased Premises, including reasonable fees and commissions of attorneys, architects, agents and brokers.
(eiv) No expiration If Tenant shall fail to make payment of any installment of Basic Rent or earlier termination any Additional Rent on or before the date when each such payment is due and such failure continues unremedied for a period of ten (10) days (in the term case of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(cBasic Rent) or otherwise, and no reletting twenty (20) days (in the case of the Premises pursuant Additional Rent) after a Nonpayment Notice is given to Section 5.1(d) Tenant by Landlord or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal Lender or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of DefaultLender’s designee, Tenant shall pay to Landlord all Landlord, a sum equal to two (2%) percent per annum above the then current Prime Rate, as hereinafter defined, of the amount unpaid (the “Default Rate”) computed from the date such payment of Basic Rent, Rent or Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the was due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until payment. The term “Prime Rate” shall mean the end prime rate of what would have been the term of this Lease interest published in the absence of such expirationWall Street Journal or its successor, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable from time to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such datetime.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of Default" under this Lease:
(i) if Tenant shall (1) fail to pay any Basic Rent, Additional Rent or other sum as and when required to be paid by Tenant hereunder, and such failure shall continue for two (2) three Business Days after delivery of written notice from Landlord (or Lender) to Tenant that of such payment was not received when duedefault, or (2) fail to observe or perform any other provision hereof (other than those specified in clauses (ii)-(x) of this subsection 5.1(a)) and such failure shall continue for thirty (30) days after written notice to Tenant tenant of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant 25 shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) 180 days from the date of such original failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease Sierra Health Services, Inc., a Nevada corporation (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project the Premises or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(viivi) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 Section 4.1 of this Lease; or
(viiivii) if any Guarantor shall default under the provisions of its guaranty;
(viii) if an Event of Default shall occur and continue under any of the leases set forth in Schedule G and the landlord thereunder is the same as, or is an affiliate of, the landlord under this lease; or
(ix) if Tenant shall fail to maintain or replace any insurance required to be maintained or replaced by Tenant in accordance with the terms and conditions of Section 3.7 3.6 hereof; or 26
(x) if Tenant shall dissolve or otherwise fail to maintain its legal existence unless such dissolution or termination of Tenant's legal existence occurs in connection with a merger completed in accordance with Section 4.1(b). (As used in Section 5.1(a) (viii), an entity is an "affiliate" of Landlord if such entity controls, is controlled by, or is under common control with, Landlord or any entity controlling Landlord.)
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord (with Lender's consent) shall have the right to give Tenant notice of Landlord's termination of the term of this Lease. Upon the giving of such notice, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened occurred and be continuing, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects Premises for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects Premises or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entryreentry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, and subject to applicable law, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Default Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects the Premises shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final additional damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f5.1(f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages)above, an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations to pay damages under Section 5.1(f) to pay liquidated and agreed current damages)) for what would be the then-then unexpired term of this Lease Term in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Future Rental Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser Appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers), with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Future Rental Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages Future Rental Damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Samples: Lease Agreement (Windrose Medical Properties Trust)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an Event of Default ("Event of Default" ") under this Lease:
(i) if Tenant shall (1) fail to pay any Basic Rent, Additional Rent additional rent or other sum as and when required to be paid by Tenant hereunder, and such failure ; or
(ii) if Tenant shall continue for two (2) Business Days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, or (2) fail to observe or perform any other provision hereof and such failure shall continue unremedied for thirty (30) 30 days after the earlier of (1) written notice thereof from Landlord or, the Note Purchaser or any holder of the Notes to Tenant Tenant, (2) the first date on which an officer of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same have actual knowledge that a default has occurred and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failurecontinuing under this Section 18(a)(ii); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR any of its subsidiaries has entered against it or any guarantor of Tenant's obligations on its behalf an order for relief under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in the Federal bankruptcy or for reorganization or for an arrangementlaws, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor)applicable Federal or state bankruptcy, insolvency or other similar law, or shall be adjudicated a bankrupt becomes insolvent, or become insolvent or shall make makes an assignment for the benefit of creditors creditors, or shall admit in writing its inability fails to generally pay its debts generally as they such debts become due, or if a petition or answer proposing the adjudication of Tenant or any such subsidiary applies for or consents to the appointment of a Guarantor as a bankrupt trustee or receiver or for the major part of its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereofproperty; or
(iv) if a custodian (including without limitation a trustee or receiver, trustee, administrator or liquidator of ) is appointed for Tenant or any Guarantor of its subsidiaries or of all or substantially all for the major part of the assets property of Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor either and shall is not be discharged within ninety (90) 90 days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) bankruptcy or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of its subsidiaries and, if instituted against Tenant or any Project shall have been left unoccupied and unattended for a period of thirty (30) such subsidiary are consented to or are not dismissed within 90 days (other than for renovation or reconstruction or during periods of seasonal closure)after such institution; or
(vi) if Tenant or the Premises shall have been left abandoned for a Guarantor shall dissolve or otherwise fail to maintain its legal existenceperiod of 30 days; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain observe or perform any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereof.
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's termination provision of the term Assignment of this Lease. Upon the giving Lease dated as of such notice_____________, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term ______ (the "Treasury RateAssignment") over (b) among Landlord, Tenant and the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled Note Purchaser relating to the maximum amount allowable under such law.Premises; of
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an event of default (herein called an "Event of Default" ") under this Lease:
(i) if If Tenant, at any time during the continuance of this Lease (and regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, at law, in equity, or before any administrative tribunal, which have or might have the effect of preventing Tenant from complying with the terms of this Lease), shall (1) fail to pay make any payment when due of Basic Rent, Additional Rent or other sum as and when herein required to be paid by Tenant hereunder, hereunder and such failure shall continue continues for two five (25) Business Days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when duebusiness days, or (2) fail to observe or perform any other provision hereof or any provision of any Assignment of Lease and such failure shall continue Rents, dated as of the date hereof (the "Assignment"), or any Tenant Certificate from Landlord and/or Tenant to Permitted Beneficiary, for thirty (30) days after written notice to Tenant of such failure has been given (provided, that in the case of any such failure default referred to in this Lease which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if then upon receipt by Landlord of a Tenant's Certificate stating the reason such default cannot be cured within thirty (30) days and providing that Tenant shall commence promptly is proceeding with due diligence to cure the same and thereafter prosecute the curing thereof with diligencesuch default, the time within which such failure may be cured shall be extended for such period as is may be necessary to complete the curing thereof of the same with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord pursuant to, or in connection with with, this Lease Lease, or Assignment shall prove to be incorrect either false or misleading in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy commencing a voluntary case under the Federal Bankruptcy Code or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any other federal or state law (as now or hereafter in effect) relating to bankruptcy, insolvency, reorganization, winding-up or adjustment of debts (hereinafter collectively called "Bankruptcy Law") or if Tenant shall (A) apply for or consent to the appointment of, or the taking of possession by, any receiver, custodian, trustee, United States Trustee or liquidator (or other similar official) of the Premises or any other law governing a Guarantor)part thereof or of any substantial portion of Tenant's property, or shall be adjudicated a bankrupt (B) generally not pay its debts as they become due, or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become duedue or (C) make a general assignment for the benefit of its creditors, or if a (D) fail to controvert in timely and appropriate manner, or in writing acquiesce to, any petition commencing an involuntary case against Tenant, or answer proposing the adjudication of otherwise filed against Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal Bankruptcy Law, or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or (E) take any similar federal or state law shall be filed action in furtherance of any court and Tenant or such Guarantor shall consent to or acquiesce in of the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereofforegoing; or
(iv) if a receiver, trustee, administrator or liquidator of an order for relief against Tenant shall be entered in any involuntary case under the Federal Bankruptcy Code or any Guarantor or of all or substantially all of the assets of similar order against Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in entered pursuant to any proceeding brought by Tenant or a Guarantorother Bankruptcy Law, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought a petition commencing an involuntary case against Tenant or a Guarantor proposing the reorganization of Tenant under any Bankruptcy Law shall be filed and shall not be discharged or denied within ninety sixty (9060) days after such appointmentfiling, or if a proceeding or case shall be commenced in any court of competent jurisdiction seeking (A) the liquidation, reorganization, dissolution, winding-up or adjustment of debts of Tenant or (B) the appointment of a Guarantor receiver, custodian, trustee, United States Trustee or liquidator (or any similar official) of the Premises or any part thereof or of Tenant or of any substantial portion of Tenant's property, or (C) any similar relief as to Tenant pursuant to any Bankruptcy Law, and any such proceeding or case shall consent to continue undismissed, or acquiesce an order, judgment or decree approving or ordering any of the foregoing shall be entered and continue unstayed and in such appointmenteffect for sixty (60) days; or
(v) if any Project the Premises shall have been be left unoccupied both unattended and unattended without maintenance as provided herein, for a period of thirty ten (3010) days (other than for renovation or reconstruction or during periods of seasonal closure)business days; or
(vi) if there occurs any default under any of Tenant's obligations under (1) that certain Tax Indemnity Agreement executed by Tenant in favor of Landlord dated as of even date with this Lease (the "Tax Indemnity Agreement"), (2) the Environmental Indemnity Agreement, (3) that certain Local Tax Benefits Indemnity Agreement executed by Tenant in favor of Landlord and Principal Mutual Life Insurance Company, dated as of even date with this Lease, (4) that certain Agreement Regarding Liens executed by Tenant in favor of Landlord and Principal Mutual Life Insurance Company, dated as of even date with this Lease, and (5) that certain Tenant Certificate (with Nondisturbance, Attornment, Notice and Estoppel Agreement) executed by Tenant, Landlord and Principal Mutual Life Insurance Company contemporaneously with this Lease; provided, however, that if any notice and/or grace periods are specifically provided for any of such defaults by the terms of any of such documents, such default shall not constitute an Event of Default under this Lease until such default continues uncured beyond any such notice and/or grace periods as may be specifically provided therefor in such document, and provided further, that no notice or a Guarantor grace periods provided for in this Lease shall dissolve or otherwise fail apply to maintain its legal existenceany such defaults under any of such other documents; or
(vii) if Tenant shall default under Sections 4.1(a)fails to deliver to Landlord and Permitted Beneficiary, 4.1(b) no sooner than 150 days after completion of the Previous Construction, any Permitted Alterations, or 10.3 the Renovations and no later than 185 days after the completion of the Previous Construction, any Permitted Alterations and the Renovations, a Title Update, together with copies of all documents listed therein, describing all documents recorded in connection with the Premises since the date of this Lease; or
(viii) if any Guarantor shall default under failure of Tenant to obtain the provisions written, recordable release of its guaranty; or
(ix) if Tenant shall fail or to maintain bond off the Premises any insurance required mechanic's, materialman or other lien described in the Title Update pertaining to be maintained the Renovations, any Permitted Alterations or the Previous Construction, within 30 days after receipt of the Title Update by Tenant in accordance with the terms and conditions of Section 3.7 hereofTenant.
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's termination of the term of this Lease. Upon the giving of such notice, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord shall have have, in its sole discretion, the immediate right, whether or not following rights:
(i) To give Tenant written notice of Landlord's intention to terminate the term Term of this Lease on a date specified in such notice. Thereupon, the Term of this Lease and the estate hereby granted shall have been terminated pursuant to Section 5.1(b)terminate on such date as completely and with the same effect as if such date were the date fixed herein for the expiration of the Term of this Lease, to and all rights of Tenant hereunder shall terminate, but Tenant shall remain liable as provided herein.
(ii) To (A) re-enter and repossess the Premises or any part thereof by force, summary proceedings, ejections or otherwise and the right to (B) remove all persons and property therefrom therefrom, whether or not the Lease has been terminated pursuant to subsection 20(b)(i) above, Tenant hereby expressly waiving any and all notices to quit, cure or vacate provided by summary proceedings, ejectment, current or any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable future law, under authority of a court of proper jurisdiction. Landlord shall be under have no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession entry or removal taking of possession of the Premises by Landlord shall be construed as an election by Landlord on Landlord's part to terminate this Lease unless a written notice of such termination is intention be given to Tenant pursuant to Section 5.1(b)subsection 20(b)(i) above.
(diii) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may To (but shall be under no obligation to) relet the Premises or any or all of the Projects part thereof for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the term of this Lease) and on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect and receive any rents payable by reason of such reletting. Landlord shall not be responsible or liable for any failure to relet the Premises or any of the Projects part thereof or for any failure to collect any rent due upon any such reletting.
(eiv) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to To recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages damages, and not as a penalty, for Tenant's default default, and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages)demand, an amount equal to the excessdetermined in accordance with Exhibit F, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated being acknowledged and agreed current damages) for what would be by both Landlord and Tenant that during the then-unexpired term continuation of this Lease any Event of Default, an amount determined in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value accordance with Exhibit F shall be made by fair and appropriate, and payable as liquidated damages, and not as a penalty, and is an MAT appraiser (engaged by Landlord) who amount which is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis discounted to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest errorpresent net value. If any law shall limit the amount of such liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such statute or rule of law.
(v) To accept Tenant's irrevocable Purchase Offer which Tenant shall be conclusively presumed to have made upon the occurrence of an Event of Default. The Purchase Offer shall be deemed to contain an immediate closing date and the purchase shall be governed by the terms and conditions set forth in subsections 15(b), 15(c), 15(d) and 15(e) of this Lease.
(vi) To continue this Lease in effect for so long as Landlord does not terminate Tenant's right to possession of the Premises and Landlord may enforce all of its rights and remedies hereunder including without limitation the right to recover all Basic Rent, Additional Rent and other sums payable hereunder as the same become due.
(c) No termination of this Lease pursuant to subsection 20(b) (i), or by operation of law or otherwise, and no repossession of the Premises or any part thereof pursuant to subsection 20(b) (ii) or otherwise, and no reletting of the Premises or any part thereof pursuant to subsection 20(b) (iii), shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, repossession or reletting.
(d) Notwithstanding anything in this Section 20 to the contrary, Landlord agrees that Landlord shall pursue the remedy described above in subsection (b) (iv) only after Landlord has pursued and been denied the remedy described above in subsection (b) (v).
Appears in 1 contract
Samples: Lease Agreement (Wells Real Estate Investment Trust Inc)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of Default" Default under this Lease:
(i) if Tenant If Lessee shall (1) fail to pay any Basic Rent, Additional Rent additional rent or other sum as and when required to be paid by Tenant hereunder, and such failure shall continue for two (2) Business Days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, due or (2) fail to observe or perform any other provision hereof and such nonmonetary failure shall continue for thirty (30) 30 days after written notice to Tenant Lessee of such failure (providedprovided that, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period not to exceed 180 days as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or;
(ii) if If any representation or warranty of Tenant or Guarantor Lessee set forth herein or in any noticecertificate provided by Lessee pursuant to this Lease, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material adverse respect as of the time when the same shall have been made in a way adverse to Lessor and Lessor shall suffer a loss or detriment as a result thereof, including, without limitation, the taking of any action (including, without limitation, the demise of the Premises to Lessee herein) in reliance upon such representation or warranty and, in each case, the facts shall not be conformed to the representation and warranty as soon as practicable in the circumstances (but in no event to exceed 30 days) after written notice to Lessee from Lessor of such inaccuracy and Lessor restored to the position it would have enjoyed had such representation or warranty been accurate at the time it was made; or;
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") If Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become duecreditors, or if a petition or answer proposing the adjudication of Tenant or a Guarantor Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust bankruptcy law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor Lessee shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) 90 days after the filing thereof; or;
(iv) if If a receiver, trustee, administrator trustee or liquidator conservator of Tenant or any Guarantor Lessee or of all or substantially all of the assets of Tenant or such Guarantor Lessee or of any Project the Premises or TenantLessee's or estate therein shall be appointed in any proceeding brought by Tenant or a GuarantorLessee, or if any such receiver, trustee or liquidator conservator shall be appointed in any proceeding brought against Tenant or a Guarantor Lessee and shall not be discharged within ninety (90) 90 days after such appointment, or if Tenant or a Guarantor Lessee shall consent to or acquiesce in such appointment; orand
(v) if any Project If the Premises shall have been left unoccupied abandoned and unattended not maintained in the manner required hereunder for a period of thirty (30) 10 consecutive days (other than for renovation or reconstruction or during periods after written notice of seasonal closure); orsuch from Lessor to Lessee.
(vi) if Tenant If a Letter of Credit has been posted as the Security Deposit or a Guarantor shall dissolve other security hereunder, and the issuer of the Letter of Credit cancels, terminates or otherwise fail refuses to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a)honor it, 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant Lessee shall fail to maintain any insurance required renew the Letter of Credit within ten (10) business days or shall fail to be maintained by Tenant in accordance with post a cash equivalent amount of the terms and conditions Letter of Section 3.7 hereofCredit within ten (10) days after notice of such cancellation, termination or refusal.
(b) If an Event of Default shall have occurred happened and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingcontinuing, Landlord Lessor shall have the right to give Tenant Lessee notice of LandlordLessor's termination of the term of this LeaseLease Term. Upon the giving of such notice, the term of this Lease Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this LeaseLease Term, and all rights of Tenant Lessee hereunder shall expire and terminate, but Tenant Lessee shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord Lessor shall have the immediate right, whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(bsubsection 7.01(b), to re-enter reenter and repossess the Premises and the right to remove all persons and property (subject to Section 3.02) therefrom by summary proceedings, ejectment, ejectment or any other legal action or in any lawful manner Landlord Lessor determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord Lessor shall be under no liability by reason of any such re-entryreentry, repossession or removal. No such re-entryreentry, repossession or removal shall be construed as an election by Landlord Lessor to terminate this the Lease Term unless a notice of such termination is given to Tenant Lessee pursuant to Section 5.1(b)subsection 7.01(b) or unless such termination is decreed by a court.
(d) At any time or from time to time after a re-entryreentry, repossession or removal pursuant to Section 5.1(csubsection 7.01(c), whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(bsubsection 7.01(b), Landlord Lessor may (but shall be under no obligation to) relet any or all of the Projects Premises for the account of TenantLessee, in the name of Tenant Lessee or Landlord Lessor or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord Lessor may collect any rents payable by reason of such reletting. Landlord Lessor shall use commercially reasonable best efforts to relet the Premises and to collect the rent due upon a relet but not be liable for any failure to relet any of the Projects Premises or for any failure to collect any rent due upon any on such reletting.
(e) No expiration or earlier termination of the term of this Lease Term pursuant to Section 5.1(bsubsection 7.01(b), by operation of law or otherwise, and no re-entryreentry, repossession or removal pursuant to Section 5.1(csubsection 7.01(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(dsubsection 7.01(d) or otherwise, shall relieve Tenant Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entryreentry, repossession, removal or reletting.
(f) In the event of the any expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant Lessee shall pay to Landlord Lessor all Basic Rent, Additional Rent additional rent and other sums required to be paid by TenantLessee, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entryreentry, repossession or removal; and , and, thereafter, Tenant Lessee shall, until the end of what would have been the term of this Lease Term in the absence of such expiration, termination, re-entryreentry, repossession or removal and whether or not any Projects the Premises shall have been relet, be liable to Landlord Lessor for, and shall pay to LandlordLessor, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent all additional rent and other sums which would be payable under this Lease by Tenant Lessee in the absence of any such expiration, termination, re-entryreentry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds together with all expenses of Landlord Lessor in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including including, without limitation, fees and expenses of appellate proceedings), employees' employee's expenses, alteration costs and expenses of necessary preparation for such reletting), less (ii) the net proceeds, if any, of any reletting effected for the account of Lessee pursuant to subsection 7.01(d). Tenant Lessee shall pay such liquidated and agreed current damages on the dates on which Basic Rent rent would be payable under this Lease in the absence of such expiration, termination, re-entryreentry, repossession or removal, and Landlord Lessor shall be entitled to recover the same from Tenant Lessee on each such date.
(g) At As an exclusive alternative to Lessor's other remedies hereunder, at any time after any such expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property thereon therefrom by reason of the occurrence of an Event of Default, whether or not Landlord Lessor shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(fsubsection 7.01(f), Landlord Lessor shall be entitled to recover from TenantLessee, and Tenant Lessee shall pay to Landlord Lessor on demand, as and for liquidated and agreed final damages for TenantLessee's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the to date to which Tenant Lessee shall have satisfied in full its obligations under Section 5.1(fsubsection 7.01(f) to pay liquidated and agreed current damages) for what would be the then-then unexpired term of this Lease Term (not taking into account any then unexercised Extension Terms) in the absence of such expiration, termination, re-entryreentry, repossession or removal, discounted at a the rate equal to the then current yield on U.S. United States Treasury obligations Notes having a maturity as of comparable maturity to the stated date for expiration of the then existing Term of this Lease, plus 2% per annum (the "Treasury Reference Rate") ), over (b) the then fair rental value of the Premises for what would be such then unexpired term of this LeasePremises, discounted at the Treasury Reference Rate for the same period period. Additionally, Lessee shall pay Lessor all ad valorem taxes for the then unexpired Lease Term from the date of such demand (such excess being hereinafter referred not taking into account any then unexercised Extension Terms) calculated using the ad valorem taxes paid by Lessee in the tax year immediately prior to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g)the default, the following shall apply: (a) determinations of fair rental value shall but excluding any extraordinary special assessments that would not be made by an MAT appraiser (engaged by Landlord) who is a member reoccurring in future years of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and unexpired Lease Term (b) all determinations of Liquidated Damages shall be binding on Tenant for example: if the taxes paid in the absence prior year equaled $30,000, plus a one time special assessment of manifest error$10,000, and the unexpired Lease Term remaining is 5 years then Lessee shall pay Lessor under this provision an amount equal to $150,000 (i.e. the $30,000 reoccurring agreed upon value of ad valorem taxes multiplied by 5 years)). If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord Lessor shall be entitled to the maximum amount allowable under such law.
(h) Without in any way limiting any other rights or remedies available to Lessor hereunder, Lessor shall be entitled to draw on the Letter of Credit which shall be applied to any monetary obligations of Lessee hereunder in Lessor's sole discretion; provided, however, if the amount of the proceeds exceeds the aggregate amount of all monetary obligations of Lessee payable during the entire remaining Term hereof (without taking into account any then-unexercised Extension Terms) and all other amounts owing by Lessee hereunder, then such excess, if any, will be paid to Lessor to be held in an interest-bearing account. Such excess, along with any accrued interest, shall be paid to Lessee at the end of the Term of this Lease.
Appears in 1 contract
Samples: Lease Agreement (Navarre Corp /Mn/)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event “event of Default" default” under this Lease:
(i) if Tenant shall (1) fail to pay any Basic Rent, Additional Rent or other sum as and when required to be paid by Tenant hereunder, and such failure shall continue for two within five (25) Business Days days after delivery receipt of written notice from Landlord (or Lender) to Tenant that such payment Rent was not received when duepaid on the due date, or Tenant fails to pay any other sum due hereunder within ten (10) business days after receipt of written notice from Landlord that such charges are delinquent, or (2) fail Tenant fails to observe or perform any other provision hereof not described in this Section 5.1(a) and such failure shall continue for thirty (30) days after written notice to Tenant of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any federal or state law (or any other law governing a Guarantor)law, or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust bankruptcy law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iviii) if a receiver, trustee, administrator trustee or liquidator of Tenant (or any Guarantor Guarantor) or of all or substantially all of the assets of Tenant (or such Guarantor or of any Project Guarantor) or Tenant's ’s estate therein in the Premises shall be appointed in any proceeding brought by Tenant or a GuarantorTenant, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant (or a Guarantor Guarantor) shall consent to or acquiesce in such appointment; or
(viv) if any Project shall have been left unoccupied and unattended for a period If Tenant assigns this Lease in violation of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereofthis Lease.
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled may, in addition to all remedies available at law or in equity. Without limiting the foregoingother rights granted to Landlord hereunder, Landlord shall have the right to give Tenant notice of Landlord's termination of the term of ’s intention to terminate this Lease. Upon Lease on a date specified in such notice, which such date shall not be less than thirty (30) days after the giving of such notice. Upon such date, the term of this Lease and Lease, the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminate. Upon such termination, but Tenant shall remain liable as hereinafter providedimmediately surrender and deliver possession of the Premises to Landlord in accordance with Section 8.3. If Tenant does not so surrender and deliver possession of the Premises, Landlord may re-enter and repossess the Premises by any available legal process. Landlord shall be under no liability for or by reason of any such entry, repossession or removal.
(c) If this Lease is terminated pursuant to Section 5.1(b), Landlord shall have the right to peaceably re-enter and repossess the Premises only after instituting legal proceedings as a condition to such re-entry and repossession. Landlord and its agents, employees and representatives shall defend, indemnify and hold Tenant harmless from and against any and all claims resulting from such party’s negligence or willful misconduct in connection with the exercise of Landlord’s rights pursuant to this Section 5.1(c).
(d) If an Event of Default shall have happened occurred and be continuingcontinuing Landlord may terminate Tenant’s right of possession (but not this Lease) and may repossess the Premises by summary proceeding, ejectment or other legal proceeding without thereby releasing Tenant from any liability hereunder and without demand or notice of any kind to Tenant and without terminating this Lease. After repossession of the Premises pursuant hereto, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), right to re-enter and repossess let any of the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action such tenant or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenanttenants, for such term or terms and terms, for such rent, on such conditions and for such uses as Landlord, Landlord in its absolute discretion, reasonable discretion (and subject to the requirements of Section 5.1(f) herein) may determine. Landlord may , and collect and receive any rents payable by reason of such relettingre-letting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any may make such relettingAlterations in connection with such re-letting as it may deem advisable in its sole discretion.
(e) No Notwithstanding anything contained in this Lease to the contrary, Landlord shall mitigate damages by making reasonable efforts to re-let the Premises in the event that Tenant’s possession is terminated prior to the expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b)Term. In addition, by operation of law or otherwise, and no if the Premises is re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, let and no reletting Landlord is compensated for any portion of the Premises pursuant to Section 5.1(d) or otherwiseRent, shall relieve Tenant Additional Rent and the reasonable and customary costs of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entryletting the Premises, repossessionthen Landlord’s damages shall be adjusted accordingly. If any law shall validly limit the amount of any damages provided for herein to an amount which is less than the amount agreed to herein, removal or relettingLandlord shall be entitled to the maximum amount available under such law.
(f) In the event of the any expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises in accordance with the requirements hereof (whether or removal of persons or property therefrom not the Lease is terminated) by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including Tenant through the date of such expiration, termination, re-entry, repossession entry or removalrepossession; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entryentry or repossession, repossession or removal and whether or not any Projects shall have been relet, continue to be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damagesLandlord when due: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession entry or removalrepossession, less (ii) the net proceeds, if any, of any reletting re-letting effected for the account of Tenant pursuant to Section 5.1(d)Tenant, after deducting from such proceeds the following (the “Re-Letting Costs”): all necessary and customary expenses of Landlord actually incurred in connection with such reletting re-letting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' ’ fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such relettingre- letting). Tenant shall pay such liquidated and agreed current damages Rent on the dates on which Basic such Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession entry or removalrepossession, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease Term or re-re entry or repossession of the Premises or removal of persons or property thereon in accordance with the requirements hereof by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover damages from Tenant, and Tenant shall pay to Landlord on demand, an amount as actual and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the sum of (A) the excess, if any, of (ai) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this LeaseAdditional Rent, in each case from the date of such demand (or, if it be earlierapplicable, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damagesRent as it becomes due) for what would be the then-unexpired term Term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") Present Value, over (b) the then fair rental value of the Premises (taking into account any proceeds received or to be received from any re-letting of all or a portion of the Premises for any portion of what would be such the then unexpired term of this LeaseLease term), discounted at the Treasury Rate to Present Value for the same period period, plus (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (bB) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest errorRe-Letting Costs. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law. For the purpose of this Section 5.1(g), the “Present Value” of any amount shall mean such amount discounted monthly to present value (discounted at the prime rate).
(h) Notwithstanding anything contained in this Lease to the contrary, in exercising its rights under Sections 5.1(f) and/or 5.1(g), Landlord shall not be entitled to recover damages that are duplicative.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of Default" under this Lease:
(i) if Tenant shall (1) fail to pay any Basic Rent, Additional Rent or other sum as and when required to be paid by Tenant hereunder, and such failure shall continue for two (2) three Business Days after delivery of written notice from Landlord (or Lender) to Tenant that of such payment was not received when duedefault, or (2) fail to observe or perform any other provision hereof (other than those specified in clauses (ii)-(x) of this subsection 5.1(a)) and such failure shall continue for thirty (30) days after written notice to Tenant of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) 180 days from the date of such original failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease Sierra Health Services, Inc., a Nevada corporation (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a 25 Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project the Premises or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(viivi) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 Section 4.1 of this Lease; or
(viiivii) if any Guarantor shall default under the provisions of its guaranty;
(viii) if an Event of Default shall occur and continue under any of the leases set forth in Schedule G and the landlord thereunder is the same as, or is an affiliate of, the Landlord under this Lease; or
(ix) if Tenant shall fail to maintain or replace any insurance required to be maintained or replaced by Tenant in accordance with the terms and conditions of Section 3.7 3.6 hereof; or
(x) if Tenant shall dissolve or otherwise fail to maintain its legal existence unless such dissolution or termination of Tenant's legal existence occurs in connection with a merger completed in accordance with Section 4.1(b). (As used in Section 5.1 (a) (viii), an entity is an "affiliate" of Landlord if such entity controls, is controlled by, or is under common control with, Landlord or any entity controlling Landlord.)
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord (with Lender's consent) shall have the right to give Tenant notice of Landlord's termination of the term of this Lease. Upon the giving of such notice, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened occurred and be continuing, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects Premises for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects Premises or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entryreentry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, and subject to applicable law, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Default Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects the Premises shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final additional damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f5.1(f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages)above, an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations to pay damages under Section 5.1(f) to pay liquidated and agreed current damages)) for what would be the then-unexpired term of this Lease Term in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Future Rental Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser Appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers), with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Future Rental Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages Future Rental Damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Samples: Lease Agreement (Windrose Medical Properties Trust)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event event of Default" default under this Lease:
: (i) if Tenant Lessee shall (1) fail to pay any Basic Rent, Additional Rent additional charges, additional rent or other sum as and when required to be paid by Tenant hereunder, Lessee hereunder and such failure shall continue for two (2) Business Days eight days after delivery receipt of written notice from Landlord (or Lender) to Tenant that by Lessee of such payment was not received when due, failure or (2) fail to observe or perform any other provision hereof and such failure shall continue for thirty (30) 28 days after written receipt of notice to Tenant by Lessee of such failure (provided, that in the case of any such failure default which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-28 day period, if Tenant Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure default may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or
(ii) if any representation or warranty of Tenant Lessee or Guarantor set forth herein shall become a debtor in a case filed under Chapter 7 of the Bankruptcy Code, or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as a case filed under Chapter 11 of the time when Bankruptcy Code, or in a case filed under Chapter 7 of the same shall have been madeBankruptcy Code which is transferred to Chapter 11; or
(iii) or if Tenant Lessee or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") Guarantor shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any federal or state bankruptcy law (or any other law governing a Guarantor)similar federal or state law, or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant Lessee or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust bankruptcy law or any similar federal or state law shall be filed in any court and Tenant Lessee or such Guarantor Guarantor, as the case may be, shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) 90 days after the filing thereofthereof or if an order for relief shall be entered with respect to Lessee or Guarantor as a debtor in any bankruptcy proceeding; or
(iviii) if a receiver, trustee, administrator trustee or liquidator of Tenant Lessee or any Guarantor or of all or substantially all of the assets of Tenant Lessee or such Guarantor or of any Project the Premises or TenantLessee's estate therein shall be appointed in any proceeding brought by Tenant Lessee or a Guarantor, as the case may be, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant Lessee or a Guarantor and shall not be discharged within ninety (90) 90 days after such appointment, or if Tenant Lessee or a Guarantor Guarantor, as the case may be, shall consent to or acquiesce in such appointment; or
(viv) if any Project the Premises shall have been left unoccupied and unattended for a period of thirty 30 days; (30v) days if any representation or warranty of Lessee or Guarantor set forth in this Lease or in any certificate delivered pursuant thereto shall prove to be incorrect in any material and adverse respect as of the time when the same shall have been made and, in each case, (other than for renovation 1) the facts shall not be conformed to the representation or reconstruction warranty promptly after the earlier of (x) written notice of such incorrectness from Lessor to Lessee or during periods (y) the Lessee obtaining actual knowledge of seasonal closure)such incorrectness, or (2) if there shall have been any loss or detriment to the Premises or to Lessor, as a result of such incorrectness, Lessor and the Premises shall not have been promptly restored to their condition prior to such loss or detriment; or
or (vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall an event of default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default by Lessee under the provisions Amended and Restated Lease Agreement dated as of its guaranty; or
(ix) if Tenant shall fail the date hereof by and between the parties hereto with respect to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereofpremises located at 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxxxxx, New Jersey.
(b) If an Event event of Default default shall have occurred happened and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingcontinuing, Landlord Lessor shall have the right to give Tenant Lessee notice of LandlordXxxxxx's termination of the term of this Lease. Upon the giving of such notice, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant Lessee hereunder shall expire and terminate, but Tenant Lessee shall remain liable as hereinafter provided.
(c) If an Event event of Default default shall have happened and be continuing, Landlord Lessor shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(bparagraph 18(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord Lessor determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdictiondesirable and the right to remove all persons and property therefrom. Landlord Lessor shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, removal or repossession or removal of the Premises shall be construed as an election by Landlord Lessor to terminate the term of this Lease unless a notice of such termination is given to Tenant Lessee pursuant to Section 5.1(bparagraph 18(b)., or unless such termination is decreed by a court or other governmental tribunal of competent jurisdiction. 12
(d) At any time or from time to time after a the re-entry, entry or repossession or removal of the Premises pursuant to Section 5.1(cparagraph 18(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(bparagraph 18(b), Landlord Lessor may (but shall be under no obligation to) relet any or all of the Projects Premises for the account of TenantLessee, in the name of Tenant Lessee or Landlord Lessor or otherwise, without notice to TenantLessee, for such term or terms and on such conditions and for such uses as LandlordLessor, in its absolute discretion, may determine. Landlord Lessor may collect and receive any rents payable by reason of such reletting. Landlord Lessor shall not be liable for any failure to relet any of the Projects Premises or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(bparagraph 18(b), by operation of law or otherwise, and no re-entry, removal or repossession or removal of the Premises pursuant to Section 5.1(cparagraph 18(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(dparagraph 18(d) or otherwise, shall relieve Tenant Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal repossession or reletting.
(f) In the event of the any expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event event of Defaultdefault, Tenant shall Lessee will pay to Landlord Lessor all Basic Rent, Additional Rent all additional charges, additional rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof Xxxxxx to and including the date of such expiration, termination, re-entry, repossession removal or removalrepossession; and and, thereafter, Tenant Lessee shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession removal or removal repossession, and whether or not any Projects the Premises shall have been relet, be liable to Landlord Lessor for, and shall pay to LandlordLessor, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent additional charges, additional rent and other sums which would be payable under this Lease by Tenant Lessee in the absence of any such expiration, termination, re-entry, repossession removal or removalrepossession, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant Lessee pursuant to Section 5.1(dparagraph 18(d), after deducting from such proceeds all expenses of Landlord Lessor in connection with such reletting (including, without limitation, but not limited to all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings)expenses, employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall Lessee will pay such liquidated and agreed current damages on the dates days on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession removal or removalrepossession, and Landlord Lessor shall be entitled to recover the same from Tenant Lessee on each such dateday.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event event of Defaultdefault, whether or not Landlord Lessor shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(fparagraph 18(f), Landlord Lessor shall be entitled to recover from TenantLessee, and Tenant shall Lessee will pay to Landlord Lessor on demand, as and for liquidated and agreed final damages for TenantXxxxxx's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent additional charges, additional rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant Lessee shall have satisfied in full its obligations under Section 5.1(fparagraph 18(f) to pay liquidated and agreed current damages) for what would be the then-then unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession entry or removalrepossession, discounted at a the rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") 5 per cent per annum over (b) the then fair rental value of the Premises for what would be such then unexpired term of this LeasePremises, discounted at the Treasury Rate rate of 5 per cent per annum for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest errorperiod. If any law shall limit the amount of such liquidated final damages to less than the amount above agreed upon, Landlord Lessor shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "event of default (herein called an “Event of Default" ”) under this Lease:
(i) if If Tenant, at any time during the continuance of this Lease (and regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, at law, in equity, or before any administrative tribunal, which have or might have the effect of preventing Tenant from complying with the terms of this Lease), shall (1) fail to pay make any payment of Basic Rent, Additional Rent or other sum as and when herein required to be paid by Tenant hereunder, hereunder and such failure shall continue continues for two five (25) Business Days days after delivery of written notice from Landlord, provided Landlord (or Lender) shall not be required to give Tenant that such payment was not received when duenotice more than two times during any twelve calendar month period, or (2) fail to observe or perform any other provision hereof and such failure shall continue for thirty (30) days after written notice to Tenant of such failure has been given (provided, that in the case of any such failure default referred to in this Lease which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if then upon receipt by Landlord of a Tenant’s Certificate stating the reason such default cannot be cured within thirty (30) days and providing that Tenant shall commence promptly is continuously proceeding with due diligence to cure the same and thereafter prosecute the curing thereof with diligencesuch default), the time within which such failure may be cured shall be extended for such period as is may be necessary to complete the curing thereof of the same with diligence, but in no event ; provided Tenant provides Landlord with reasonable security to exceed one hundred twenty (120) days from the date assure Tenant’s cure of such failure)default; or
(ii) if any representation or warranty of Tenant or Guarantor Guarantor, set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord pursuant to, or in connection with this Lease shall prove to be incorrect either false or misleading in any material respect as of the time when the same name shall have been mademade and Tenant or Guarantor shall fail to correct or rectify the false or misleading item to the reasonable satisfaction of Landlord within thirty (30) days after Tenant or Guarantor makes such representation or warranty; provided Landlord did not rely on such representation or warranty to Landlord’s detriment; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") , if any, shall file a petition in bankruptcy commencing a voluntary case under the Federal Bankruptcy Code or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any other federal or state law (as now or hereafter in effect) relating to bankruptcy, insolvency, reorganization, winding-up or adjustment of debts (hereinafter collectively called “Bankruptcy Law”) or if Tenant or Guarantor, if any, shall (A) apply for or consent to the appointment of, or the taking of possession by, any receiver, custodian, trustee, United States Trustee or liquidator (or other similar official) of the Premises or any other law governing a part thereof or of any substantial portion of Tenant’s or Guarantor)’s property, or shall be adjudicated a bankrupt (B) generally not pay its debts as they become due, or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if (C) make a general assignment for the benefit of its creditors, or (D) fail to controvert in a timely and appropriate manner, or in writing acquiesce to, any petition or answer proposing the adjudication of commencing an involuntary case against Tenant or a Guarantor as a bankrupt Guarantor, if any or its reorganization otherwise filed against Tenant or Guarantor, if any pursuant to any federal Bankruptcy Law, or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or (E) take any similar federal or state law shall be filed action in furtherance of any court and Tenant or such Guarantor shall consent to or acquiesce in of the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereofforegoing; or
(iv) if an order for relief against Tenant or Guarantor, if any, shall be entered in any involuntary case under the Federal Bankruptcy Code or any similar order against Tenant shall be entered pursuant to any other Bankruptcy Law, or if a receiverpetition commencing an involuntary case against Tenant or Guarantor, trustee, administrator if any or liquidator proposing the reorganization of Tenant or Guarantor under any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project or Tenant's estate therein Bankruptcy Law shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor filed and shall not be discharged or denied within ninety sixty (9060) days after such appointmentfiling, or if a proceeding or case shall be commenced in any court of competent jurisdiction seeking (A) the liquidation, reorganization, dissolution, winding-up or adjustment of debts of Tenant or Guarantor, if any, or (B) the appointment of a Guarantor receiver, custodian, trustee, United States Trustee or liquidator (or any similar official) of the Premises or any part thereof or of Tenant or Guarantor, if any or of any substantial portion of Tenant’s property, or (C) any similar relief as to Tenant or Guarantor, if any pursuant to any Bankruptcy Law, and any such proceeding or case shall consent to continue undismissed or acquiesce an order, judgement or decree approving or ordering any of the foregoing shall be entered and continue unstayed and in such appointmenteffect for sixty (60) days; or
(v) if any Project the Premises shall have been left unoccupied and unattended remain vacant for a period of thirty ten (3010) days (other than consecutive days, unless Tenant provides security for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail the Premises reasonably satisfactory to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereofLandlord.
(b) If an Event of Default shall have occurred happened and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingcontinuing, Landlord shall have have, in its sole discretion, the right to following rights:
(i) To give Tenant written notice of Landlord's termination of ’s intention to terminate the term of this LeaseLease on a date specified in such notice which date shall be no earlier than five (5) days after the receipt by Tenant of said notice. Upon the giving of such noticeThereupon, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date fixed herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(cii) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), to To (A) re-enter and repossess the Premises or any part thereof by force, summary proceedings, ejections or otherwise and the right to (B) remove all persons and property therefrom by summary proceedingstherefrom, ejectment, any whether or not the Lease has been terminated pursuant to subparagraph 19(b)(i) above and store Tenant’s personal property at Tenant’s expense. Such re-entry and repossession shall not work a forfeiture of the rents or other legal action or in any lawful manner Landlord determines charges to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if paid and covenants to be performed by Tenant during the full term of this Lease. Except for the notices required under applicable the terms of this Lease, Tenant hereby expressly waives any and all notices to quit, cure or vacate provided by current or any future law, under authority of a court of proper jurisdiction. Landlord shall be under have no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession entry or removal taking of possession of the Premises by Landlord shall be construed as an election by Landlord on Landlord’s part to terminate this Lease unless a written notice of such termination is intention be given to Tenant pursuant to Section 5.1(b)subparagraph 19(b)(i) above.
(diii) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may To (but shall be under no obligation toto except to the extent required by law) relet the Premises or any or all of the Projects part thereof for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the term of this Lease) and on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect and receive any rents payable by reason of such reletting. Landlord shall not be responsible or liable for any failure to relet the Premises or any of the Projects part thereof or for any failure to collect any rent due upon any such reletting.
(eiv) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to To recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's ’s default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, value of (a) the aggregate of all Basic Rent, Rent and Additional Rent and other sums which would provided herein to be payable under this Leasepaid by Tenant to Landlord for the remainder of the Term, in each case from less the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would said period, which difference shall be such then unexpired term of this Lease, discounted to present value at a rate equal to 300 basis points plus the Treasury Rate then-current yield for the same period (U.S. Treasury security having a maturity closest to the Lease termination date in effect prior to such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest errordefault. If any law shall limit the amount of such liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such statute or rule of law.
(v) To continue this Lease in effect for so long as Landlord does not terminate Tenant’s right to possession of the Premises and Landlord may enforce all of its rights and remedies hereunder including without limitation the right to recover all Basic Rent, Additional Rent and other sums payable hereunder as the same become due.
(c) No termination of this Lease pursuant to subparagraph 19(b)(i), and no repossession of the Premises or any part thereof pursuant to subparagraph 19(b)(ii) or otherwise, and no reletting of the Premises or any part thereof pursuant to subparagraph 19(b)(iii), shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, repossession or reletting.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any Section 16.1 In the event that Tenant shall default in the performance of any of the following occurrences agreements, conditions, covenants, or acts shall constitute terms herein contained on its part to be performed, (other than Net Basic Rent and additional rent herein), Landlord may, (but need not) after five (5) days upon prior written notice to Tenant, except in the case of an "Event emergency where notice is required, perform the same for the Tenant without waiving or releasing Tenant from any obligations of Default" under Tenant in this Lease:
(i) Lease contained or if Tenant defaults in the provision of insurance or suffers a default which creates an emergency condition and fails to correct the same within twenty four (24) hours after written notice from Landlord or its agent of the same, then Landlord may (but need not) after such notice without waiving or releasing Tenant from any obligations of Tenant in this Lease contained perform the same for Tenant, and Landlord shall (1) fail have the right to pay enter the Demised Premises for the purpose of correcting or remedying such default and to remain therein until the same shall have been corrected or remedied. Any amount paid, or any Basic Rentexpense or liability incurred, Additional Rent or other sum as and when required by Landlord, in the performance of same, shall be deemed to be paid additional rent payable by Tenant hereunder, and such failure shall continue for two (2) Business Days after delivery of written notice from Landlord (or Lender) may, at Landlord's option, be added to Tenant that such payment was not received when any Net Basic Rent then due, or thereafter falling due hereunder or shall be payable on demand, together with interest thereon at the annual rate equal to five (25%) fail percent above the then current prime interest rate as published in the Wall Street Journal, which interest shall commence to observe or perform any other provision hereof rent as of the date of payment and which sums, including the said interest, shall be deemed to constitute additional rent. This section shall not be operative with respect to non-monetary defaults which are impossible to correct within five (5) days so long as Tenant has commenced to correct such failure shall continue for default before the expiration of said five (5) day period (where five (5) day period is applicable, as above) and continued diligently to correct same and has corrected the same within thirty (30) days after written notice expiration of the thirty (30) day grace period above. This exception does not apply to Tenant emergency conditions. All sums so paid by Landlord and all incidental costs and expenses in connection with the performance of any such act by Landlord, together with interest thereon at the annual rate equal to five (5%) percent above the then current prime interest rate as published in the Wall Street Journal, commencing from the date of making of such failure expenditure by Landlord, shall be payable to Landlord on demand or at the option of Landlord may be added to any installment of Net Basic Rent then due or thereafter becoming due under this Lease, and Tenant covenants to pay any such sum or sums with interest as aforesaid. All sums which may become payable to Landlord by Tenant as in this Article provided shall be deemed additional rent hereunder, and Landlord shall (provided, that in addition to any other right or remedy of Landlord) have the same rights and remedies in the event of the nonpayment of any such sums by Tenant as in the case of any such failure which is capable of being cured but cannot be cured default by tenant in the payment of money and cannot with diligence be cured within such 30the Net Basic Rent.
Section 16.2 Upon the continuance of any non-day periodmonetary breach or violation by Tenant of any of the terms, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligencecovenants, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date agreements or conditions of such failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a period of thirty five (305) days (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if after any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereof.
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's termination of the term of this Lease. Upon the giving of such written notice, and regardless of whether Landlord has acted under Section 16.1, the term of this Lease and the estate hereby granted shall expire and Landlord may at its election terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of the estate of the Tenant hereunder in the Demised Premises shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If come to an Event of Default shall have happened and be continuing, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter and repossess the Premises end and the right to remove all persons and property therefrom Landlord may thereupon reenter the Demised Premises as of his former estate. Any waiver by summary proceedings, ejectment, any other legal action or in any lawful manner the Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession breach shall not be deemed a waiver of any similar or removalother further breach. No such re-entry, repossession or removal shall be construed as an election All waivers by Landlord to terminate this Lease unless a notice be in writing. No waivers by operation of such law. The termination is given to as above shall be unaffected by virtue of Landlord's performance on behalf of Tenant pursuant to per Section 5.1(b)16.1 above, and Tenant shall be responsible for the same notwithstanding termination.
(d) At any time Section 16.3 If the Tenant shall be dispossessed or removed from time to time after a re-entrythe Demised Premises or if Tenant shall substantially vacate the Demised Premises or abandon same, repossession or removal pursuant to Section 5.1(c), whether or not if the term of this Lease hereof shall have been terminated pursuant end prior to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term date of this Lease pursuant to Section 5.1(b)16.2 above, the Tenant does hereby authorize and empower Landlord, at its option, (Landlord has no duty to mitigate) to reenter the Demised Premises as agent of the Tenant, or for its own act, or otherwise, and to relet the same or any portion thereof, for any term expiring either prior to the expiration date of this Lease or simultaneously with or beyond such date, or from time to time as opportunity may offer, and to repair and remodel the same, if necessary, or desirable, for reletting purposes, and to receive and apply the Net Basic Rent and additional rent so received to the cost of reletting, repairing, reentering and remodeling, and payment of all fees and commissions to brokers or finders, and the balance to the payment of the Net Basic Rent and additional rent due hereunder. The Tenant shall remain liable for any deficiency between the Net Basic Rent and additional rent due hereunder and the amounts applied to Net Basic Rent, if any, which may result from such reletting, if any, which deficiency shall, at the Landlord's option, be payable monthly as the amount thereof shall be ascertained, or the Landlord may elect to have Tenant in such event pay upon demand-and then the Tenant shall be responsible to pay upon demand-the accelerated aggregate Net Basic Rent and additional rent due hereunder to the scheduled expiration date of Lease; and in such event as and when Net Basic Rents are collected from substitute Tenant, if any, during the balance of term hereby demised (net of all Landlord expenses in reletting) the same shall be remitted by Landlord to Tenant up to the accelerated amount paid as above. The right of Landlord to collect any such deficiency shall be limited to the unexpired portion of the Lease. Tenant shall not be entitled to surplus, if any. The Tenant further agrees that notwithstanding any entry or reentry by Landlord, whether by summary proceedings, termination or otherwise, it will pay and be liable for, on the day originally fixed herein for the payment thereof, amounts equal to the several installments of New Basic Rent and additional rent reserved herein, and shall remain responsible for additional rent reserved herein, and shall remain responsible for the performance of all other terms, conditions and covenants herein, in the same manner as if the Landlord had not entered or reentered therein. No entry by the Landlord, whether had or taken under summary proceedings or by Lease termination or otherwise, shall be deemed to absolve or discharge the Tenant from liability hereunder nor to constitute the acceptance of a surrender.
Section 16.4 If, at any time during the term hereof, any proceedings shall be instituted by or against the Tenant, resulting in the exercise of jurisdiction by any court over the estate or property of the Tenant, or if proceedings shall be instituted by or against the Tenant pursuant to any provisions of any Act of Congress relating to bankruptcy, or pursuant to any other proceedings at law or in equity, in any court, as a bankrupt or as a debtor under such Act of Congress or as an insolvent corporation or insolvent person; or if a receiver, sequestrator, custodian, conservator, trustee or other officer shall be appointed of the Tenant, or any of its property; or if the Tenant shall compound its debts or assign its estate or effects for payment thereof, or if any execution, attachment, distraint or other legal proceedings shall issue against the Tenant or its property on the Demised Premises, and a sale be had thereof, of if this Lease shall, by operation of law law, devolve upon or otherwisepass to any one other than the Tenant then, and no re-entryin any such events or contingencies, repossession or removal pursuant this Lease shall, at the option of the Landlord, cease and come to Section 5.1(c) or otherwisean end, and no reletting the Landlord shall thereupon become entitled to reposses the Demised Premises and reenter the same as of its former estate by giving notice, in writing, specifying the date upon which the Landlord will reenter, reposses or recover possession of the Demised Premises pursuant to Section 5.1(dwhich date shall not be less than five (5) or otherwise, shall relieve Tenant days after the giving of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or relettingnotice.
(f) Section 16.5 In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession as the result of any election exercised by the Premises or removal of persons or property therefrom by reason of Landlord pursuant to the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term terms of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlierArticle, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such lawrights, remedies and damages set forth in this Article and elsewhere in this Lease and at law and equity. Tenant waives the service of notice of intention to reenter as provided for in any statute and also waives any and all right of redemption in case Landlord obtains possession by reason of Tenant's default. The terms "enter", "reenter", "entry" or "reentry", as used in this Lease are not restricted to their technical legal meaning.
Appears in 1 contract
Samples: Lease Agreement (Micronetics Inc)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of Default" Default under this Lease:
(i) if Tenant Lessee shall (1) fail to pay any Basic Rent, Additional installment of Fixed Rent or any additional rent or other sum as and when required to be paid by Tenant hereunder, Lessee hereunder when due and such failure shall continue for two ten (210) Business Days days after delivery notice to Lessee of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, failure; or (2) fail to observe or perform any other provision hereof and such failure shall continue for thirty (30) days after written notice to Tenant Lessee of such failure (providedprovided that, that in the case of any such failure default which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30thirty-day period, if Tenant Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure default may be cured shall be extended for such period as is reasonably necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any noticeLessee shall commence a voluntary case under the Federal Bankruptcy Code, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any federal or state bankruptcy law (or any other law governing a Guarantor)similar federal or state law, or shall be adjudicated a bankrupt bankrupt, or shall become insolvent insolvent, or Lessee shall not generally pay its debts as they become due, or shall make an assignment for the benefit of creditors creditors, or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust bankruptcy law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor Lessee shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereofpetition; or
(iviii) if a receiver, trustee, administrator trustee or liquidator of Tenant or any Guarantor Lessee or of all or substantially all of the assets of Tenant Lessee or such Guarantor or of any Project or TenantLessee's estate therein in the Premises shall be appointed in any proceeding brought by Tenant or a Guarantoragainst Lessee, as the case may be, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor Lessee and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor Lessee shall consent to or acquiesce in such appointment; or
(iv) if any representation or warranty of Lessee contained in this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made, to the detriment of any person to whom or for whose benefit the representation or warranty was made and adequate provision for cure of such detriment reasonably acceptable to Lessor shall not have been made; or
(v) if the estate or interest of Lessee in the Premises shall be levied upon or attached in any Project proceeding and such process shall have been left unoccupied and unattended for a period of thirty not be vacated or discharged within ninety (3090) days (other than for renovation after such levy or reconstruction attachment, unless such levy or during periods attachment is being contested pursuant to paragraph 15 of seasonal closure)this Lease; or
(vi) if Tenant final judgment or judgments for the payment of money in excess of $5,000,000 shall be outstanding against Lessee for more than 90 days and shall not have been discharged in full (provided no such judgment shall constitute a Guarantor shall dissolve default hereunder for so long as the effect of such judgment is stayed, or otherwise fail to maintain its legal existenceuntil any appeals filed in connection with such judgment have been finally resolved, provided Lessee shall, at all times, be diligently and in good faith appealing such judgment in a court of appropriate jurisdiction); or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) a custodian for purposes of any federal or 10.3 state bankruptcy law or any similar federal or state law is appointed or otherwise takes possession of this Leasea substantial portion of Lessee's assets; or
(viii) if any Guarantor shall default there should occur a default, which continues beyond the expiration of all applicable notice and cure periods, by Crompton & Knowles Corp. ("Xxxxxxxor") under the provisions terms of its guarantya certain Guaranty of Lease (the "Guaranty"), dated as of the date hereof, made by Guarantor in favor of Lessor, pursuant to which Guarantor has guaranteed the full and timely performance of all of Lessee's obligations under this Lease; or
(ix) if Tenant shall fail to maintain Guarantor should disavow its obligations under the Guaranty, or if the Guaranty, or any insurance required part thereof, is found to be maintained unenforceable by Tenant any court of law having competent jurisdiction over the matter; or
(x) the filing, by or against Guarantor, in accordance with any court, pursuant to any statute of the terms and conditions United States or of Section 3.7 hereofany State, of a petition in bankruptcy, insolvency, or reorganization (which remains undischarged for ninety (90) days), or the appointment of a receiver, trustee, or conservator of all or a portion of Guarantor's property, or the making by Guarantor of an assignment for the benefit of creditors, or a general failure by Guarantor to pay its debts when due.
(b) If an Event of Default shall have occurred happened and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingcontinuing, Landlord Lessor shall have the right to give Tenant Lessee three (3) days notice of LandlordLessor's termination of the term Term of this Lease. Upon the giving of such notice, the term Term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term Term of this Lease, and all rights of Tenant Lessee hereunder shall expire and terminate, but Tenant Lessee shall remain liable as hereinafter provided.
(c) If an Upon the occurrence of any Event of Default shall have happened and be continuingDefault, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant continue in effect for so long as Lessor does not terminate Lessee's right to Section 5.1(bpossession under paragraph 16(b), above, and Lessor may enforce all its rights and remedies under this Lease, including, without limitation, the right to re-enter recover Fixed Rent, additional rent and repossess any other sums due in accord with this Lease (hereinafter, collectively, "rent") as same become(s) due, and, without terminating this Lease, may exercise all of the rights and remedies of a landlord. Acts of maintenance, preservation or efforts to lease the Premises and the appointment of a receiver upon application of Lessor to protect Lessor's interest under this Lease shall not constitute an election to terminate Lessee's right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b)possession.
(d) At any time or from time to time after a re-entry, repossession or removal Should Lessor terminate this Lease pursuant to Section 5.1(cthe provisions of paragraph 16(b), whether or not the term of this Lease above, Lessor shall have been terminated pursuant all the rights and remedies to Section 5.1(b)which Lessor may be entitled under applicable law, Landlord may (but and, in addition, Lessor shall be under no obligation toentitled to receive from Lessee:
(i) relet any or all the worth at the time of award of the Projects unpaid rent and other amounts which had been earned at the time of termination;
(ii) the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rent loss that the Lessee proves could have been reasonably avoided;
(iii) the worth at the time of award of the amount by which the unpaid rent for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination balance of the term of this Lease pursuant after the time of award exceeds the amount of such rent loss that the Lessee proves could be reasonably avoided; and
(iv) any other amount necessary to Section 5.1(bcompensate Lessor for all the detriment proximately caused by Lessee's failure to perform its obligation under this Lease or which, in the ordinary course of things, would be likely to result therefrom. The "worth at the time of the award" of the amounts referred to in (i) and (ii) above, shall be computed using the interest rate set forth in paragraph 4(b), above. The "worth at the time of award" of the amount referred to in (iii) shall be computed by operation of law or otherwisereference to competent appraisal evidence and the formula prescribed by, and no re-entrybeing the lowest discount rate permitted under, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or relettingapplicable law.
(fe) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of Upon the occurrence of an Event of DefaultDefault hereunder, Tenant Lessor shall pay use reasonable efforts to Landlord all Basic Rentmitigate its damages as a result thereof; provided Lessor shall have no obligation to attempt to relet the Premises, Additional Rent and other sums required to be paid by Tenantor any part thereof, in each case together with interest thereon at the Rate from the due date thereof preference to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease areas then held by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected Lessor for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such datelease.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the ------------------------------------------- following occurrences or acts shall constitute an "Event event of Default" default under this Lease:
; (i) if Tenant Lessee shall (1l) fail to pay any Basic Rent, Additional Rent additional rent or other sum as and when required to be paid by Tenant hereunder, Lessee hereunder and such failure shall continue for two (2) Business Days 10 days after delivery notice to Lessee of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, failure or (2) fail to observe or perform any other provision hereof and such failure shall continue for thirty (30) 30 days after written notice to Tenant Lessee of such failure (provided, that in the case of any such failure default which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure default may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or
or (ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any federal or state bankruptcy law (or any other law governing a Guarantor)similar federal or state law, or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust bankruptcy law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor Lessee shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) 90 days after the filing thereof; or
or (iviii) if a receiver, trustee, administrator trustee or liquidator of Tenant or any Guarantor Lessee or of all or substantially all of the assets of Tenant or such Guarantor Lessee or of any Project the Premises or TenantLessee's estate therein shall be appointed in any proceeding brought by Tenant or a GuarantorLessee, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor Lessee and shall not be discharged within ninety (90) 90 days after such appointment, or if Tenant or a Guarantor Lessee shall consent to or acquiesce in such appointment; or
or (viv) if any Project the Premises shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereof30 days.
(b) If an Event event of Default default shall have occurred happened and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingcontinuing, Landlord Lessor shall have the right to give Tenant Lessee notice of LandlordLessor's termination of intention to terminate the term of this LeaseLease on a date not less than 5 days after the date of such notice. Upon the giving of such notice, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant Lessee hereunder shall expire and terminate, but Tenant Lessee shall remain liable as hereinafter provided.
(c) If an Event event of Default default shall have happened and be continuing, Landlord Lessor shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(bparagraph 17(b), to re-enter and repossess the Premises by summary proceedings, ejectment or in any manner Lessor determines to be necessary or desirable and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdictiontherefrom. Landlord Lessor shall be under no liability by reason of any such re-re- entry, repossession or removal. No such re-entry, entry or repossession or removal of the Premises shall be construed as an election by Landlord Lessor to terminate the term of this Lease unless a notice of such termination intention is given to Tenant Lessee pursuant to Section 5.1(bparagraph 17(b), or unless such termination is decreed by a court of competent jurisdiction.
(d) At any time or from time to time after a the re-entry, entry or repossession or removal of the Premises pursuant to Section 5.1(cparagraph 17(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(bparagraph 17(b), Landlord Lessor may (but shall be under no obligation to) relet any or all of the Projects Premises for the account of TenantLessee, in the name of Tenant Lessee or Landlord Lessor or otherwise, without notice to TenantLessee, for such term or terms and on such conditions and for such uses as LandlordLessor, in its absolute discretion, may determine, subject to the provisions of the Ground Lease. Landlord Lessor may collect and receive any rents payable by reason of such reletting. Landlord Lessor shall not be liable for any failure to relet any of the Projects Premises or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(bparagraph 17(b), by operation of law or otherwise, and no re-entry, entry or repossession or removal of the Premises pursuant to Section 5.1(cparagraph 17(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(dparagraph 17(d) or otherwise, shall relieve Tenant Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal repossession or reletting.
(f) In the event of the any expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event event of Defaultdefault, Tenant shall Lessee will pay to Landlord Lessor all Basic Rent, Additional Rent additional rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof Lessee to and including the date of such expiration, termination, re-entryentry or repossession; and, repossession or removal; and thereafter, Tenant Lessee shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entryentry or repossession, repossession or removal and whether or not any Projects the Premises shall have been relet, be liable to Landlord Lessor for, and shall pay to LandlordLessor, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent additional rent and other sums which would be payable under this Lease by Tenant Lessee in the absence of any such expiration, termination, re-entry, repossession entry or removalrepossession, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant Lessee pursuant to Section 5.1(dparagraph 17(d), after deducting from such proceeds all Lessor's expenses of Landlord in connection with such reletting (including, without limitation, including all repossession costs, brokerage commissions, property management fees, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings)expenses, employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall Lessee will pay such liquidated and agreed current damages on the dates days on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession entry or removalrepossession, and Landlord Lessor shall be entitled to recover the same from Tenant Lessee on each such dateday.
(g) At any time after any such expiration or earlier termination of the term of this Lease or The words "re-entry enter" or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, "re-entry, repossession or removal, discounted at a rate equal " as used in this paragraph 17 are not restricted to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such lawtheir technical meaning.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of Default" under this Lease:
(i) if Tenant shall (1) fail to pay any Basic Rent, Additional Rent or other sum as and when required to be paid by Tenant hereunderunder this Lease, and such failure shall continue for two (2) Business Days (with respect to Basic Rent or 5 Business Days (with respect to Additional Rent or any other sum) after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, or (2) fail to observe or perform any other provision hereof of this Lease (other than those referred to in clauses (vii) and (ix) of this Section 5.1(a)) and such failure shall continue for thirty (30) days after written notice to Tenant of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty eighty (120180) days from the date of such failure); or;
(ii) if any representation or warranty of Tenant Tenant, Seller or Guarantor set forth herein herein, in the Contract of Sale or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closureas permitted by Section 1.2(b)); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections Section 4.1(a), 4.1(b) or 10.3 4.1(d) or Schedule K of this Lease; or
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereofof this Lease or the letter of even date herewith from Tenant to Landlord relating to insurance; or
(x) if Tenant shall default under Sections 7.2 and/or 7.3 of this Lease.
(xi) Any event that but for the giving of notice or the passage of time would be an Event of Default shall be a "Default."
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's termination of the term Term of this Lease. Upon the giving of such notice, the term Term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term Term of this Lease, and all rights of Tenant hereunder under this Lease shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate right, whether or not the term Term of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term Term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term Term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunderunder this Lease, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term Term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term Term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term Term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f5.1(f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages, and the liquidated and agreed final damages reasonably approximate to the actual damages Landlord would sustain on account of a Tenant Default or Event of Default, and the same are not intended to be a penalty), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term Term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term Term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT MAI appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any The occurrence of any one or more of the following occurrences events (any such event being specified herein as a “failure” or acts “default”) shall constitute an "Event of Default" Default under this Lease:
: (i) if a failure by Tenant shall to make (1regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant from complying with the provisions of this Lease): (x) fail any payment of Basic Rent which continues unremedied for a period of ten (10) business days after written notice (“Nonpayment Notice”) thereof given to pay Tenant by Landlord, or (y) any Basic Rent, payment of Additional Rent or other sum as and when herein required to be paid by Tenant hereunder, and such failure shall continue for two (2) Business Days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, or (2) fail to observe or perform any other provision hereof and such failure shall continue for thirty (30) days after written notice to Tenant of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended continues unremedied for a period of thirty (30) days after a Nonpayment Notice is given to Tenant by Landlord; (ii) subject to Paragraph 18(b) above, failure by Tenant to perform and observe, or a violation or breach of, any other than provision in this Lease and such default shall continue for renovation a period of thirty (30) days after written notice thereof is given by Landlord to Tenant or reconstruction if such default is of such a nature that it cannot reasonably be cured within such period of thirty (30) days, such period shall be extended for such longer time as is reasonably necessary not to exceed one hundred eighty (180) days in the aggregate, provided that Tenant has commenced to cure such default within said period of thirty (30) days and is actively, diligently and in good faith proceeding with continuity to remedy such default; (iii) Tenant shall (A) voluntarily be adjudicated a bankrupt or during periods insolvent, (B) voluntarily consent to the appointment of seasonal closure)a receiver or trustee for itself or for the Leased Premises, (C) voluntarily file a petition seeking relief under the bankruptcy or other similar laws of the United States, any state or any jurisdiction, or (D) voluntarily file a general assignment for the benefit of creditors; or
(iv) a court shall enter an order, judgment or decree appointing, with the voluntary consent of Tenant, a receiver or trustee for Tenant or for the Leased Premises or approving a petition filed against Tenant which seeks relief under the bankruptcy or other similar laws of the United States or any State, and such order, judgment or decree shall remain in force, undischarged or unstayed, ninety (90) business days after it is entered; (v) Tenant shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; or (vi) if the estate or interest of Tenant in the Leased Premises shall be levied upon or a Guarantor attached in any proceeding and such estate or interest is about to be sold or transferred or such process shall dissolve not be vacated or otherwise fail discharged within ninety (90) business days after such levy or attachment. The foregoing notwithstanding, Lender and its successors, assigns and purchasers shall have no obligation to maintain its legal existence; or
(vii) if give Tenant shall any Nonpayment Notice with respect to any payment default under Sections 4.1(a), 4.1(b) or 10.3 the terms of this Lease
(viii) if any Guarantor shall default . If Lender or its successor, assigns or purchasers have succeeded to the interests of Landlord under the provisions of its guaranty; or
(ix) if this Lease, Tenant shall fail be in default (i) in the payment of Basic Rent if such payment of Basic Rent remains unpaid for a period of ten (10) days after the applicable Basic Rent Payment Date and (ii) with respect to maintain any insurance required to be maintained by Tenant in accordance with the terms payment of Additional Rent is not paid within thirty (30) days after the date which such Additional Rent is due and conditions of Section 3.7 hereofpayable.
(b) If an any Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingoccurred, Landlord shall have the right at its option, then or at any time thereafter, during the continuance of such Event of Default, to give Tenant notice of Landlord's termination do any one or more of the term of following without demand upon or (except as provided in this LeaseParagraph 20(b)) notice to Tenant:
(i) Landlord may terminate this Lease effective on a date specified in a notice to Tenant. Upon the giving of such noticedate therein specified, the term of this Lease Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminateterminate as if such date were the date herein above fixed for the expiration of the Term, but Tenant shall remain liable for all its obligations hereunder through the date herein above fixed for the expiration of the Term, including its liability for Basic Rent and Additional Rent as hereinafter provided.
(cii) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate rightmay, whether or not the term Term of this Lease shall have been terminated pursuant to Section 5.1(b)clause (i) above, give Tenant notice (following the occurrence of an Event of Default) to re-enter surrender the Leased Premises to Landlord on a date specified in such notice, at which time Tenant shall surrender and repossess deliver possession of the Leased Premises and to Landlord. Upon or at any time after taking possession of the right to Leased Premises, Landlord may remove all any persons and or property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdictiontherefrom. Landlord shall be under no liability for or by reason of any such re-entry, repossession or removal. No such re-entry, entry or repossession or removal shall be construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such termination is given intention to Tenant pursuant to Section 5.1(b)clause (i) above.
(diii) At any time or from time to time after a re-entry, After repossession or removal of the Leased Premises pursuant to Section 5.1(c)clause (ii) above, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b)clause (i) above, Landlord may (but shall be under no obligation to) use commercially reasonable efforts to relet the Leased Premises or any part thereof to such tenant or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, tenants for such term or terms and (which may be greater or less than the period which would otherwise have constituted the balance of the Term) for such rent, on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its absolute reasonable discretion, may determine. ; and Landlord may shall collect and receive any rents payable by reason of such reletting. The rents received on such reletting shall be applied (A) first to the reasonable and actual expenses of such reletting and collection, including without limitation necessary renovation and alterations of the Leased Premises, reasonable and actual attorneys’ fees and any reasonable and actual real estate commissions paid, and (B) thereafter toward payment of all sums due or to become due Landlord hereunder. If a sufficient amount to pay such expenses and sums shall not be liable for realized or secured, then Tenant shall pay Landlord any failure such deficiency monthly, and Landlord may bring an action therefor as such monthly deficiency shall arise. Landlord shall not, in any event, be required to relet pay Tenant any sums received by Landlord on a reletting of the Projects Leased Premises in excess of the rent provided in this Lease, but such excess shall reduce any accrued present or for any failure future obligations of Tenant hereunder. Landlord’s re-entry and reletting of the Leased Premises without termination of this Lease shall not preclude Landlord from subsequently terminating this Lease as set forth above. Landlord may make such Alterations as Landlord in its reasonable discretion may deem advisable. Tenant agrees to collect any rent due pay Landlord, as Additional Rent, immediately upon any such relettingdemand, all reasonable expenses incurred by Landlord in obtaining possession, in performing Alterations and in reletting the Leased Premises, including reasonable fees and commissions of attorneys, architects, agents and brokers.
(eiv) No expiration If Tenant shall fail to make payment of any installment of Basic Rent or earlier termination any Additional Rent on or before the date when each such payment is due and such failure continues unremedied for a period of ten (10) business days (in the term case of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(cBasic Rent) or otherwise, and no reletting thirty (30) business days (in the case of the Premises pursuant Additional Rent) after a Nonpayment Notice is given to Section 5.1(d) Tenant by Landlord or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal Lender or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of DefaultLender’s designee, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.sum equal
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of Default" Default under this Lease:
(i) if Tenant : If Lessee shall (1) fail to pay any Basic Rent, Additional Rent additional rent or other sum as and within three (3) business days of when required to be paid by Tenant hereunder, and such failure shall continue for two (2) Business Days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, Lessee hereunder or (2) fail to observe or perform any other provision hereof and such nonmonetary failure shall continue for thirty (30) days after written notice to Tenant Lessee of such failure (providedprovided that, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such thirty (30-) day period, if Tenant Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event not to exceed one hundred twenty eighty (120180) days from the date of such failure)days, unless a longer period is agreed to by Lessor; or
(ii) if If any representation or warranty of Tenant or Guarantor Lessee set forth herein or in any noticecertificate provided by Lessee pursuant to this Lease, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material adverse respect as of the time when the same shall have been made in a way adverse to Lessor and Lessor shall suffer a loss or detriment as a result thereof, including, without limitation, the taking of any action (including, without limitation, the demise of the Premises to Lessor herein) in reliance upon such representation or warranty and, in each case, the facts shall not be conformed to the representation and warranty as soon as practicable in the circumstances (but in no event to exceed thirty (30) days) after written notice to Lessee from Lessor of such inaccuracy and Lessor restored to the position it would have enjoyed had such representation or warranty been accurate at the time it was made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") If Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become duecreditors, or if a petition or answer proposing the adjudication of Tenant or a Guarantor Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust bankruptcy law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor Lessee shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if If a receiver, trusteetrustee or conservator of Lessee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor Lessee, or of any Project the Premises or TenantLessee's estate therein shall be appointed in any proceeding brought by Tenant or a GuarantorLessee, or if any such receiver, trustee or liquidator conservator shall be appointed in any proceeding brought against Tenant or a Guarantor Lessee and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor Lessee shall consent to or acquiesce in such appointment; or
(v) if any Project If the Premises shall have been left unoccupied and unattended either (x) abandoned or (y) vacated for a period in excess of thirty (30) consecutive days (other than for renovation or reconstruction or during not including periods of seasonal closurerepair or restoration following a casualty or condemnation or retenanting periods in connection with an existing sublease or assignment agreement); or
A default by Lessee beyond any applicable cure period in the payment of rent under, or in the performance of any other material provision of, any other lease or leases that have, in the aggregate, annual rental obligations of $500,000 or more if the lessor under any such lease or leases commences to exercise its remedies thereunder; A final, non-appealable judgment or judgments for the payment of money in excess of $5,000,000.00 in the aggregate shall be rendered against Lessee, which sum is not covered by insurance, and the same shall remain undischarged for a period of sixty (vi60) if Tenant consecutive days (unless payment is not then required by the judgment or a Guarantor the order issued in connection with the judgment); Lessee shall dissolve be liquidated or otherwise fail dissolved or shall begin proceedings towards its liquidation or dissolution, except as allowed herein; Lessee shall sell or transfer or enter into an agreement to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) sell or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions transfer all or substantially all of its guarantyassets, except as allowed herein; or
(ix) if Tenant Lessee shall fail to maintain any insurance required to be maintained by Tenant renew or replenish the Hold Back Amount in accordance with the terms and conditions requirements of Section 3.7 hereof.
13.1; A default beyond any applicable cure period or at maturity by Lessee in any payment of principal or interest on Lessee's obligations under its senior secured credit facility or in the performance of any other provision contained in any instrument under which any such obligation is created or secured (bincluding the breach of any covenant thereunder), (x) if such payment is a payment at maturity or a final payment, or (y) if such default causes such obligation to become due prior to its stated maturity. If an Event of Default shall have occurred and happened, be continuing Landlord and any grace period hereunder shall be entitled to all remedies available at law or in equity. Without limiting the foregoinghave expired, Landlord Lessor shall have the right to give Tenant Lessee notice of LandlordLessor's termination of the term of this LeaseLease Term. Upon the giving of such notice, the term of this Lease Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this LeaseLease Term, and all rights of Tenant Lessee hereunder shall expire and terminate, but Tenant Lessee shall remain liable as hereinafter provided.
(c) . If an Event of Default shall have happened and be continuing, Landlord Lessor shall have the immediate right, whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(bSubsection 7.1(b), to re-enter reenter and repossess the Premises and the right to remove all persons and property (subject to Section 3.2) therefrom by summary proceedings, ejectment, ejectment or any other legal action or in any lawful manner Landlord Lessor determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord Lessor shall be under no liability by reason of any such re-entryreentry, repossession or removal. No such re-entryreentry, repossession or removal shall be construed as an election by Landlord Lessor to terminate this the Lease Term unless a notice of such termination is given to Tenant Lessee pursuant to Section 5.1(b).
(dSubsection 7.1(b) or unless such termination is decreed by a court. At any time or from time to time after a re-entryreentry, repossession or removal pursuant to Section 5.1(cSubsection 7.1(c), whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(bSubsection 7.1(b), Landlord Lessor may (but shall be under no obligation to) relet any or all of the Projects Premises for the account of TenantLessee, in the name of Tenant Lessee or Landlord Lessor or otherwise, without notice to TenantLessee, for such term or terms and on such conditions and for such uses as LandlordLessor, in its absolute discretion, may determine. Landlord Lessor may collect any rents payable by reason of such reletting. Landlord Lessor shall not be liable for any failure to relet any of the Projects Premises or for any failure to collect any rent due upon any such reletting.
(e) . No expiration or earlier termination of the term of this Lease Term pursuant to Section 5.1(bSubsection 7.1(b), by operation of law or otherwise, and no re-entryreentry, repossession or removal pursuant to Section 5.1(cSubsection 7.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(dSubsection 7.1(d) or otherwise, shall relieve Tenant Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entryreentry, repossession, removal or reletting.
(f) . If an Event of Default shall have happened, be continuing and any grace period hereunder shall have expired, Lessor shall have the following options regarding monetary payments: In the event of the any expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant Lessee shall pay to Landlord Lessor all Basic Rent, Additional Rent additional rent and other sums required to be paid by TenantLessee, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entryreentry, repossession or removal; and , and, thereafter, Tenant Lessee shall, until the end of what would have been the term of this Lease Term in the absence of such expiration, termination, re-entryreentry, repossession or removal and whether or not any Projects the Premises shall have been relet, be liable to Landlord Lessor for, and shall pay to LandlordLessor, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent all additional rent and other sums which would be payable under this Lease by Tenant Lessee in the absence of any such expiration, termination, re-entryreentry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds together with all expenses of Landlord Lessor in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including including, without limitation, fees and expenses of appellate proceedings), employees' employee's expenses, alteration costs and expenses of necessary preparation for such reletting), less (ii) the net proceeds, if any, of any reletting effected for the account of Lessee pursuant to Subsection 7.1(d). Tenant Lessee shall pay such liquidated and agreed current damages on the dates on which Basic Rent rent would be payable under this Lease in the absence of such expiration, termination, re-entryreentry, repossession or removal, and Landlord Lessor shall be entitled to recover the same from Tenant Lessee on each such date.
(g) . At any time after any such expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property thereon therefrom by reason of the occurrence of an Event of Default, whether or not Landlord Lessor shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(fSubsection 7.1(f)(i), Landlord Lessor shall be entitled to recover from TenantLessee, and Tenant Lessee shall pay to Landlord Lessor on demand, as and for liquidated and agreed final damages for TenantLessee's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent additional rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the to date to which Tenant Lessee shall have satisfied in full its obligations under Section 5.1(fSubsection 7.1(f)(i) to pay liquidated and agreed current damages) for what would be the then-then unexpired term of this Lease Term in the absence of such expiration, termination, re-entryreentry, repossession or removal, discounted at a the rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") 5% per annum, over (b) the then fair rental value of the Premises for what would be such then unexpired term of this LeasePremises, discounted at the Treasury Rate rate of 5% per annum for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest errorperiod. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord Lessor shall be entitled to the maximum amount allowable under such law. In lieu of the provisions of Section 7.1(f)(i) and 7.1(f)(ii), Lessor may, upon notice to Lessee, require Lessee to make an irrevocable offer to terminate this Lease upon payment to Lessor of an amount (the "Default Termination Amount") specified in the next sentence. The "Default Termination Amount" shall be the greatest of (A) the sum of the fair market value of the Premises and the applicable prepayment premium which Lessor will be required to pay in prepaying any loan with proceeds of the Default Termination Amount, (B) the sum of the Acquisition Cost (identified in Schedule E) and the applicable prepayment premium which Lessor will be required to pay in prepaying any loan with proceeds of the Default Termination Amount or (C) an amount equal to the present value of the entire Basic Rent from the date of such purchase to the date on which the Lease Term would expire, assuming that the Lease Term has been extended for all extension periods, if any, provided for in this Lease. Upon such notice to Lessee, Lessee shall be deemed to have made such offer and shall, if requested by Lessor, within ten (10) days following such request deposit with Lessor as payment against the Default Termination Amount the amount described in (B) above and Lessor and Lessee shall promptly commence to determine Fair Market Value. Within thirty (30) days after the Fair Market Value Date, Lessor shall accept or reject such offer. If Lessor accepts such offer then, on the tenth (10th) business day after such acceptance, Lessee shall pay to Lessor the Default Termination Amount and, at the request of Lessee, Lessor will convey the Premises to Lessee or its designee in accordance with Section 6.1. Any rejection by Lessor of such offer shall have no effect on any other remedy Lessor may have under this Lease. In lieu of the provisions of Sections 7.1(f)(i), 7.1(f)(ii) and 7.1(f)(iii), Lessor may, upon notice to Lessee, declare Rent (in the amount of Basic Rent then in effect) for the remainder of the then current Term to be immediately due and payable. Lessee shall immediately pay to Lessor all such Basic Rent discounted to its Present Value, all accrued Rent then due and unpaid, all other Monetary Obligations which are then due and unpaid and all Monetary Obligations which arise or become due by reason of such Event of Default (including any Costs of Lessor). Upon receipt by Lessor of all such accelerated Basic Rent and Monetary Obligations ,this Lease shall remain in full force and effect and Lessee shall have the right to possession of the Premises from the date of such receipt by Lessor to the end of the Term, and subject to all the provisions of this Lease, including the obligation to pay all increases in Basic Rent and all Monetary Obligations that subsequently become due, except that (A) no Basic Rent which has been prepaid hereunder shall be due thereafter during the said Lease Term, (B) Lessee shall have no option to extend or renew the Lease Term.
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Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of Default" Default under this Lease:
(i) if Tenant If Lessee shall (1) fail to pay any Basic Rent, Additional Rent additional rent or other sum as and when required to be paid by Tenant hereunder, and due (provided that for such failure shall to pay to constitute an Event of Default such failure must continue for two to exist after Lessor has provided Lessee with five business (25) Business Days after delivery of days written notice from Landlord of Lessee’s failure to timely pay such sums and provided that Lessor is obligated to provide such written notice no more than two times for any consecutive twelve (or Lender12) to Tenant that such payment was not received when due, month period) or (2) fail to observe or perform any other provision hereof and such nonmonetary failure shall continue for thirty (30) days after written notice to Tenant Lessee of such failure (providedprovided that, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such thirty (30-) day period, if Tenant Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period not to exceed one hundred and eighty (180) days as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or;
(ii) if If any representation or warranty of Tenant or Guarantor Lessee set forth herein or in any noticecertificate provided by Lessee pursuant to this Lease, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material adverse respect as of the time when the same shall have been made in a way adverse to Lessor and Lessor shall suffer a loss or detriment as a result thereof, including, without limitation, the taking of any action (including, without limitation, the demise of the Premises to Lessee herein) in reliance upon such representation or warranty and, in each case, the facts shall not be conformed to the representation and warranty as soon as practicable in the circumstances (but in no event to exceed that period of time that in Lessor’s reasonable judgment is necessary to complete the curing thereof with diligence) after written notice to Lessee from Lessor of such inaccuracy and Lessor restored to the position it would have enjoyed had such representation or warranty been accurate at the time it was made; or;
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") If Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become duecreditors, or if a petition or answer proposing the adjudication of Tenant or a Guarantor Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust bankruptcy law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor Lessee shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or;
(iv) if If a receiver, trustee, administrator trustee or liquidator conservator of Tenant or any Guarantor Lessee or of all or substantially all of the assets of Tenant or such Guarantor Lessee or of any Project the Premises or Tenant's Lessee’s or estate therein shall be appointed in any proceeding brought by Tenant or a GuarantorLessee, or if any such receiver, trustee or liquidator conservator shall be appointed in any proceeding brought against Tenant or a Guarantor Lessee and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor Lessee shall consent to or acquiesce in such appointment; or;
(v) if any Project If the Premises shall have been left unoccupied and unattended abandoned for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); orconsecutive days;
(vi) if Tenant If a Letter of Credit has been posted as the Security Deposit or other security hereunder, and the issuer of the Letter of Credit cancels, terminates or refuses to honor it, and Lessee shall fail to renew the Letter of Credit within thirty (30) days or shall fail to post a cash equivalent amount of the Letter of Credit or a Guarantor shall dissolve replacement letter of credit within fifteen (15) days after notice of such cancellation, termination or otherwise fail to maintain its legal existencerefusal; orand
(vii) if Tenant shall default If a monetary Event of Default occurs under Sections 4.1(a)this Lease more than three (3) times within any consecutive twelve (12) month period, 4.1(b) irrespective of whether or 10.3 not such Event of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereofDefault is cured.
(b) If an Event of Default shall have occurred happened and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingcontinuing, Landlord Lessor shall have the right to give Tenant Lessee notice of Landlord's Lessor’s termination of the term of this LeaseTerm. Upon the giving of such notice, the term of this Lease Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this LeaseTerm, and all rights of Tenant Lessee hereunder shall expire and terminate, but Tenant Lessee shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord Lessor shall have the immediate right, whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(bsubsection 7.01(b), to re-enter reenter and repossess the Premises and the right to remove all persons and property (subject to Section 3.02) therefrom by summary proceedings, ejectment, ejectment or any other legal action or in any lawful manner Landlord Lessor determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord Lessor shall be under no liability by reason of any such re-entryreentry, repossession or removal. No such re-entryreentry, repossession or removal shall be construed as an election by Landlord Lessor to terminate this Lease the Term unless a notice of such termination is given to Tenant Lessee pursuant to Section 5.1(b)subsection 7.01(b) or unless such termination is decreed by a court.
(d) At any time or from time to time after a re-entryreentry, repossession or removal pursuant to Section 5.1(csubsection 7.01(c), whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(bsubsection 7.01(b), Landlord Lessor may (but shall be under no obligation to) relet any or all of the Projects Premises for the account of TenantLessee, in the name of Tenant Lessee or Landlord Lessor or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord Lessor may collect any rents payable by reason of such reletting. Landlord Lessor shall not be liable for any failure to relet any of the Projects Premises or for any failure to collect any rent due upon any such reletting. Notwithstanding the foregoing, Lessor agrees to make reasonable efforts to mitigate its damages under this Lease in the event Lessee actually vacates or advises Lessor that it is, as of a specified date, to vacate the Premises. The phrase “reasonable efforts,” as it relates to Lessor’s duty to attempt to relet the Premises, shall require Lessor to do only the following: (i) notify Lessor’s management company, if any, in writing of the availability of the Premises for reletting and authorize same to advertise as appropriate, (ii) post Lessor’s leasing contact telephone number in an appropriate area of the Premises, and (iii) show the Premises to any prospective Lessee interested in the Premises and to any prospective Lessee specifically referred to Lessor by Lessee. Under any requirement of Lessor to use “reasonable efforts” as described herein, (i) Lessor shall not be required to relet the Premises ahead of any other properties in the same market not producing any income to Lessor; (ii) Lessor shall be entitled to consider Lessee quality, Lessee-mix, the financial condition of any prospective Lessee, the nature of the Premises, the proposed use of the Premises by any prospective Lessee, and any rights of existing sublessees located in the Premises, in making any leasing decision without being deemed to have violated its mitigation requirement hereunder; and (iii) under any new lease entered into by Lessor, Lessor may relet all or any portion of the Premises to create an appropriate block of space for a new Lessee, may relet for a greater or lesser term than that remaining at that time under this Lease, and may include free rent, concessions, inducements, alterations and upgrades in the new lease. If a reletting occurs, Lessor shall recoup all of its expenses of reletting (including, without limitation, all expenses relating to remodeling, alterations, repairs, capital improvements, brokerage fees, decorating fees, and fees for architects, designers, space planners and attorneys) before Lessee is entitled to a credit on the damages owed by Lessee hereunder. If Lessor shall do all the foregoing then, anything in this Lease, or any statute, or common law rule to the contrary notwithstanding, Lessor shall be deemed to have met its duty (if any) to mitigate its damages hereunder.
(e) No expiration or earlier termination of the term of this Lease Term pursuant to Section 5.1(bsubsection 7.01(b), by operation of law or otherwise, and no re-entryreentry, repossession or removal pursuant to Section 5.1(csubsection 7.01(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(dsubsection 7.01(d) or otherwise, shall relieve Tenant Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entryreentry, repossession, removal or reletting.
(f) In the event of the any expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant Lessee shall pay to Landlord Lessor all Basic Rent, Additional Rent additional rent and other sums required to be paid by TenantLessee, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entryreentry, repossession or removal; and , and, thereafter, Tenant Lessee shall, until the end of what would have been the term of this Lease Term in the absence of such expiration, termination, re-entryreentry, repossession or removal and whether or not any Projects the Premises shall have been relet, be liable to Landlord Lessor for, and shall pay to LandlordLessor, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent all additional rent and other sums which would be payable under this Lease by Tenant Lessee in the absence of any such expiration, termination, re-entryreentry, repossession or removal, together with all expenses of Lessor in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys’ fees and expenses (including, without limitation, fees and expenses of appellate proceedings), employee’s expenses, alteration costs and expenses of necessary preparation for such reletting), less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant Lessee pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such relettingsubsection 7.01(d). Tenant Lessee shall pay such liquidated and agreed current damages on the dates on which Basic Rent rent would be payable under this Lease in the absence of such expiration, termination, re-entryreentry, repossession or removal, and Landlord Lessor shall be entitled to recover the same from Tenant Lessee on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property thereon therefrom by reason of the occurrence of an Event of Default, whether or not Landlord Lessor shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(fsubsection 7.01(f), Landlord Lessor shall be entitled to recover from TenantLessee, and Tenant Lessee shall pay to Landlord Lessor on demand, as and for liquidated and agreed final damages for Tenant's Lessee’s default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent additional rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the to date to which Tenant Lessee shall have satisfied in full its obligations under Section 5.1(fsubsection 7.01(f) to pay liquidated and agreed current damages) for what would be the then-then unexpired term of this Lease Term in the absence of such expiration, termination, re-entryreentry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Reference Rate") , over (b) the then fair rental value of the Premises for what would be such then unexpired term of this LeasePremises, discounted at the Treasury Reference Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest errorperiod. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord Lessor shall be entitled to the maximum amount allowable under such law.
(h) To the extent the same may lawfully be waived, Lessee expressly, knowingly and voluntarily waives all constitutional, statutory and common law bonding requirements, including the requirement under Section 83.12, Florida Statutes (2006) that Lessor file a bond payable to Lessee in at least double the sum demanded by Lessor (or double the value of the property sought to be distrained), it being the intention of the parties that no bond shall be required to be filed by Lessor in any such distress action.
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Conditional Limitations; Default Provisions. (a) 18.1. Any of the following occurrences or acts shall constitute an "Event of Default" Default under this Lease:
Sublease: (i) if Tenant Lessee, at any time during the continuance of this Sublease (and regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity, or before any administrative tribunal, which have or might have the effect of preventing Lessee from complying with the terms of this Sublease), shall (1) fail to pay make any payment when due of Basic Rent, Additional Rent additional rent or other sum as and when herein required to be paid by Tenant hereunder, Lessee and such failure shall continue for two (2) Business Days a period of 10 days after delivery by Lessor of written notice from Landlord (or Lender) to Tenant Lessee that any such payment was not received when duehas become due and that failure to pay within 10 days of receipt of the notice may result in termination of this Sublease and other liability, or (2) fail to observe or perform any other provision hereof and such failure shall continue for thirty (30) 15 days after written Lessor shall have given to Lessee notice to Tenant of such failure (providedprovided that, that in the case of any such failure default referred to in this clause (2) which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 3015-day period, if Tenant Lessee shall commence proceed promptly to cure the same and thereafter shall prosecute the curing thereof of such default with diligence, then, upon receipt by Lessor of a certificate from the President or a Vice President of Lessee stating the reason that such default cannot be cured within 15 days and stating that Lessee is proceeding with diligence to cure such default, the time within which such failure may be cured shall be extended for such period as is may be necessary to complete the curing thereof of the same with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or
or (ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any present or future federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust bankruptcy law or under any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereof.
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's termination of the term of this Lease. Upon the giving of such notice, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of DefaultEVENT OF DEFAULT" under this Lease:
(i) if Tenant shall (1) fail to pay any Basic RentRent on or before three (3) Business Days following the due date thereof, (2) fail to pay Additional Rent or other sum as and when required to be paid by Tenant hereunder, and such failure shall continue for two (2) Business Days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, or (23) fail to observe or perform any other provision hereof and such failure shall continue for thirty (30) days after written notice to Tenant of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty fifty (120150) days from the date of such failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each is referred to herein as a "GuarantorGUARANTOR") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project the Premises or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project the Premises shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure)reconstruction; or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 2.2(c), 4.1(a), 4.1(b) or 10.3 of this Lease; or
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereof.
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's termination of the term of this Lease. Upon the giving of such notice, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet the Premises or any or all of the Projects portion thereof for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet the Premises or any of the Projects portion thereof or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises or any portion thereof pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not the Premises or any Projects portion thereof shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f5.1(f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to to, at the election of Landlord in its sole discretion, (A) the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of the then-current term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury RateTREASURY RATE") over (b) the then fair rental value of the Premises Premises, for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated DamagesLIQUIDATED DAMAGES")) or (B) an amount equal to the aggregate Stipulated Loss Value applicable to the Premises as specified on Schedule E annexed hereto and made a part hereof as of the immediately preceding Payment Date plus an amount equal to the Make-Whole Premium, and any other sums then due and payable as of the date of such demand under this Lease. For the purposes of determining value pursuant to this Section 5.1(g5.1(g)(A), the following shall apply: (a) determinations of fair rental value shall be made by an MAT MAI appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or and acts shall constitute an "Event of Default" Default under this Lease:
(i) if Tenant at any time during the term of this Lease (and regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal, which have or might have the effect of preventing Tenant from complying with the terms of this Lease), shall (1a) fail to pay make when due any Basic Rent, Additional Rent or other sum as and when payment of rent herein required to be paid by Tenant hereunder, and such failure shall continue for two (2) Business Days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when dueTenant, or (2b) fail to make when due any payment of additional rent or any other sum herein required to be paid by Tenant, or (c) fail to observe or perform any of Tenant's other provision hereof covenants, agreements or obligations hereunder, and if any such failure shall continue as to (b) above for thirty (30) 10 days after written Lessor shall have given Tenant notice of such failure, or as to (c) above for 30 days after Lessor shall have given Tenant of notice specifying such failure (provided, that in the case of any or if such failure which is capable of being cured but default cannot be cured by the payment of money and cannot not, with diligence due diligence, be cured within such 30-30 day periodperiod owing to causes beyond the control of Tenant, if Tenant shall commence fail to proceed promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failuredefault with diligence and continuity); , or
(ii) if any representation Event of Default shall occur under the Mortgage or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; Mortgage Documents as a result of any act or omission of Tenant, or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") ATC shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any present or future federal bankruptcy act or under any similar federal or state law (or any other law governing a Guarantor)law, or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of its creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor ATC as a bankrupt or its reorganization pursuant to under any present or future federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law bankruptcy act or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) 90 days after the filing thereof; , or
(iv) if a receiver, trustee, administrator trustee or liquidator of Tenant or any Guarantor ATC or of all or substantially all of the assets property of Tenant or such Guarantor ATC or of any Project or Tenant's estate therein the leased premises shall be appointed in any proceeding brought by Tenant or a GuarantorATC, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor ATC and shall not be discharged within ninety (90) 90 days after such appointment, appointment or if Tenant or a Guarantor ATC shall consent to or acquiesce in such appointment; , or
(v) if at any Project time the leased premises shall have been abandoned or left substantially unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); 30 consecutive days, or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 the interest of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms leased premises or part thereof shall be levied upon or attached in any proceeding and conditions of Section 3.7 hereofsuch process shall not be vacated or discharged within 90 days after such levy or attachment.
(b) If This Lease and the Term and estate hereby granted are subject to the limitation that whenever an Event event of Default default shall have occurred happened and be continuing Landlord continuing, then Lessor shall be entitled to all remedies available have the right at its election, then or at any time thereafter while any such event of default shall continue and regardless of and notwithstanding the fact that Lessor has or may have some other remedy hereunder or by virtue hereof, in law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant written notice of LandlordLessor's termination of intention to terminate the term of this Lease. Upon Term on a date specified in such notice, and upon the giving of any such notice, the term of this Lease Term and the estate hereby granted shall expire and terminate on such upon the date so specified in said notice as fully and completely and with the same force and effect as if the date specified in such date notice were the date herein hereinbefore fixed for the expiration of the term of this LeaseTerm, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter hereafter provided.
(c) If an Event of Default shall have happened and be continuing. In the event any such notice is given, Landlord Lessor shall have the immediate right, whether or not the term right of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter entry and repossess possession of the Premises leased premises and the right to remove all persons and property therefrom therefrom. Should Lessor elect to re-enter as herein provided or should Lessor take possession pursuant to legal proceedings or pursuant to any notice provided for by law, Lessor may from time to time relet the leased premises or any part thereof for such term or terms and at such rental or rentals and upon such terms and conditions as Lessor may deem advisable, with the right to make alterations in and repairs of the leased premises.
(c) In the event of any termination of the Term as in this SECTION 22 above provided or as otherwise permitted by law, Tenant shall then peaceably quit and surrender the leased premises to Lessor, and Lessor may, without further notice, enter upon, re-enter, possess and repossess the same by force, summary proceedings, ejectmentejectment or otherwise and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event, neither Tenant nor any person claiming through or under Tenant by virtue of any statute or of an order of any court shall be entitled to possession or to remain in possession of the leased premises, but shall forthwith quit and surrender the leased premises, and Lessor, at its option, shall forthwith, notwithstanding any other legal action provisions of this Lease to the contrary, be entitled to recover from Tenant (in lieu of all other claims for damages on account of such termination) as and for liquidated damages an amount equal to the excess of all the rents reserved hereunder for the unexpired portion of this Lease discounted to the then present worth over the fair rental value of the leased premises at the time of termination for such unexpired portion. The discount rate to be used in discounting reserve rents and in determining such fair rental value shall be the Prime Rate of Bank of America, N.A. in effect at the time the calculation pursuant to this SUBSECTION (C) shall be required to be made. Nothing herein contained shall, however, limit or prejudice the right of Lessor, in any lawful manner Landlord determines bankruptcy or reorganization or insolvency proceedings, to prove for and obtain as liquidated damages by reason of such termination an amount equal to the maximum allowed by any bankruptcy or reorganization or insolvency proceedings, or to prove for and obtain as liquidated damages by reason of such termination an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such damages are to be proved, whether or not such amount shall be greater, equal to, or less than the amount of the excess referred to above.
(d) If Lessor shall re-enter and obtain possession of the leased premises by reason of or following an event of default, Lessor shall have the right, without notice, to repair or alter the leased premises in such manner as to Lessor may seem necessary or desirableadvisable so as to put the leased premises in good order and to make the same rentable, so long and shall have the right, at Lessor's option to relet the leased premises or any part thereof, and Tenant agrees to pay to Lessor on demand all expenses incurred by Lessor in obtaining possession, and in altering, repairing and putting the leased premises in good order and condition, and in reletting the same, including reasonable fees of attorneys, architects and other experts, and also any other reasonable and legitimate expenses or commissions, and Tenant further agrees to pay to Lessor upon each rental payment date following the date of such re-entry to and including the date set forth in SECTION 3 hereof for the expiration of the Term in effect immediately prior to such re-entry the sums of money which would have been payable by Tenant as Landlord is proceeding rent hereunder on said rent payment dates if Lessor had not re-entered and resumed possession of the leased premises, deducting only the net amount of rent, if any, which Lessor shall actually receive (after deducting from the gross receipts the expenses, costs and payments of every kind of Lessor which in accordance with applicable law andthe terms of this Lease would have been borne by Tenant) in the meantime from and by any reletting of the leased premises, if required and Tenant hereby agrees to be and remain liable for all sums otherwise payable by Tenant under applicable this Lease including, but not limited to, the expenses of Lessor aforesaid, as well as for any deficiency aforesaid, and Lessor shall have the right from time to time to begin and maintain successive actions or other legal proceedings against Tenant for the recovery of such deficiency or damages or for a sum equal to any installment or installments of rent or additional rent and any other sums payable hereunder, and to recover the same upon the liability of Tenant herein provided, which liability it is expressly covenanted shall survive the issuance of any action to secure possession of the leased premises. Nothing herein contained shall be deemed to require Lessor to wait to begin such action or other legal proceedings until the date when this Lease would have expired by limitation had there been no such event of default.
(e) If under any of the preceding provisions of this SECTION 22, Lessor shall be entitled to give Tenant a notice of termination of the Term, Lessor, without giving such notice of termination, and notwithstanding the continuance of the Term and notwithstanding that Lessor may have re-entered or taken possession of the leased premises pursuant to this SECTION 22, shall have, to the extent permitted by law, under authority all the rights, powers and remedies given to Lessor by the preceding provisions of a court of proper jurisdiction. Landlord this SECTION 22, and Tenant shall be under no liability have the obligations imposed upon it by reason of any such re-entry, repossession or removalprovisions. No such re-entry, repossession entry or removal taking of possession of the leased premises by Lessor shall be construed as an election by Landlord on Lessor's part to terminate this Lease the Term unless a written notice of such termination is intention be given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after unless such termination be decreed by a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term court of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or relettingcompetent jurisdiction.
(f) In the event of the expiration or earlier termination of the term of this Lease or The words "enter," "re-entry enter" or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, "re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or " are not any Projects shall have been relet, be liable restricted to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such datetheir technical legal meaning.
(g) At No right or remedy herein conferred upon or reserved to Lessor is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy given hereunder, or now or hereafter existing at law or in equity or by statute. The failure of Lessor to insist at any time after upon the strict performance of any such expiration or earlier termination of the term covenants or agreements or to exercise any option, right, power or remedy contained in this Lease shall not be construed as a waiver or a relinquishment thereof for the future. The receipt by Lessor of any rent, any additional rent or any other sum payable hereunder with knowledge of the breach of any covenant or agreement contained in this Lease shall not be deemed a waiver of such breach, and no waiver by Lessor of any provision of this Lease shall be deemed to have been made unless expressed in writing and signed by Lessor. In addition to other remedies provided in this Lease, Lessor shall be entitled, to the extent permitted by law, to injunctive relief in case of the violation, or attempted or threatened violation, of any of the covenants, agreements, conditions or provisions of this Lease or re-entry or repossession to a decree compelling performance of any of the Premises covenants, agreements, conditions or removal provisions of persons this Lease, or property thereon by reason to any other remedy allowed to Lessor at law or in equity.
(h) In the event either Lessor or Tenant shall be in default in the performance of any obligations under this Lease and an action shall be brought for the occurrence of an Event of Defaultenforcement thereof, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord the prevailing party shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu reimbursement of all liquidated and agreed current damages beyond the date of such demand as outlined expenses incurred in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages)connection therewith, an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such lawincluding reasonable attorneys' fees.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any a. The occurrence of any one or more of the following occurrences events (any such event being specified herein as a "failure" or acts "default") shall constitute an "Event of Default" Default under this Lease:
: (i) if a failure by Tenant shall to make (1regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant from complying with the provisions of this Lease): (x) fail any payment of Basic Rent which continues unremedied for a period of five (5) business days after written notice in accordance with Paragraph 21 below ("NONPAYMENT NOTICE") thereof given to pay Tenant by Landlord or Lender or Lender's designee, or (y) any Basic Rent, payment of Additional Rent or other sum as and when herein required to be paid by Tenant hereunder, and such failure shall continue which continues unremedied for two a period of ten (210) Business Days business days after delivery of written notice from a Nonpayment Notice is given to Tenant by Landlord (or Lender or Lender's designee; (ii) failure by Tenant to Tenant that such payment was not received when dueperform and observe, or (2) fail to observe a violation or perform breach of, any other provision hereof in this Lease and such failure default shall continue for thirty (30) days after written notice to Tenant of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a period of thirty (30) business days after written notice thereof is given by Landlord or Lender or Lender's designee to Tenant or if such default is of such a nature that it cannot reasonably be cured within such period of thirty (30) business days, such period shall be extended for such longer time as is reasonably necessary provided that Tenant has commenced to cure such default within said period of thirty (30) business days and is actively, diligently and in good faith proceeding with continuity to remedy such default; (iii) Tenant or any guarantor of Tenant's obligations hereunder shall (A) voluntarily be adjudicated a bankrupt or insolvent, (B) or voluntarily consent to the appointment of a receiver or trustee for itself or for any of the Leased Premises, (C) voluntarily file a petition seeking relief under the bankruptcy or other than similar laws of the United States, any state or any jurisdiction, or (D) voluntarily file a general assignment for renovation the benefit of creditors; (iv) a court shall enter an order, judgment or reconstruction decree appointing, with the voluntary consent of Tenant or during periods any guarantor of seasonal closure)Tenant's obligations hereunder, a receiver or trustee for Tenant or any guarantor of Tenant's obligations hereunder or for the Leased Premises or approving a petition filed against Tenant or any guarantor of Tenant's obligations hereunder which seeks relief under the bankruptcy or other similar laws of the United States or any State, and such order, judgment or decree shall remain in force, undischarged or unstayed, ninety (90) business days after it is entered; or
(v) Tenant or any guarantor of Tenant's obligations hereunder shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; or (vi) the estate or interest of Tenant in the Leased Premises shall be levied upon or attached in any proceeding and such estate or interest is about to be sold or transferred or such process shall not be vacated or discharged within ninety (90) business days after such levy or attachment. Notwithstanding anything to the contrary contained in this Section 19(a), it shall be an immediate Event of Default without demand, notice, or opportunity to cure, if Tenant or a Guarantor shall dissolve or otherwise fail fails to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 any of the Insurance required by Section 14 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereof.
(b) b. If an any Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingoccurred, Landlord shall have the right at its option, then or at any time thereafter, to do any one or more of the following without demand upon or notice to Tenant:
i) Landlord may give Tenant notice (following the occurrence of an Event of Default) of Landlord's termination intention to terminate this Lease on a date specified in such notice (which date shall be no sooner than thirty (30) days after the date of the term of this Leasenotice). Upon the giving date therein specified, unless the Event of such noticeDefault for which the termination is effected has been cured by Tenant, the term of this Lease Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminateterminate as if such date were the date hereinabove fixed for the expiration of the Term, but Tenant shall remain liable for all its obligations hereunder through the date hereinabove fixed for the expiration of the Term, including its liability for Basic Rent and Additional Rent as hereinafter provided.
(cii) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate rightmay, whether or not the term Term of this Lease shall have been terminated pursuant to Section 5.1(bclause (i) above give Tenant notice (following the occurrence of an Event of Default) to surrender the Leased Premises to Landlord on a date specified in such notice (which date shall be no sooner than thirty (30) days after the date of the notice), at which time Tenant shall surrender and deliver possession of the Leased Premises to re-enter and repossess Landlord unless the Premises and Event of Default for which the right to termination is effected has been cured by Tenant. Upon or at any time after taking possession of the Leased Premises, Landlord may remove all any persons and or property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdictiontherefrom. Landlord shall be under no liability for or by reason of any such re-entry, repossession or removal. No such re-entry, entry or repossession or removal shall be construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such termination is given intention to Tenant pursuant to Section 5.1(b)clause (i) above.
(diii) At After repossession of any time or from time to time after a re-entry, repossession or removal of the Leased Premises pursuant to Section 5.1(c)clause (ii) above, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b)clause (i) above, Landlord may (but shall be under no obligation to) relet the Leased Premises or any part thereof to such tenant or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, tenants for such term or terms and (which may be greater or less than the period which would otherwise have constituted the balance of the Term) for such rent, on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its absolute reasonable discretion, may determine. ; and Landlord may shall collect and receive any rents payable by reason of such reletting. The rents received on such reletting shall be applied (A) first to the reasonable and actual expenses of such reletting and collection, including without limitation necessary renovation and alterations of the Leased Premises (but not including tenant improvement or construction allowances), reasonable and actual attorneys' fees and any reasonable and actual real estate commissions paid, and (B) thereafter toward payment of all sums due or to become due Landlord hereunder. If a sufficient amount to pay such expenses and sums shall not be liable realized or secured, then Tenant shall pay Landlord any such deficiency monthly, and Landlord may bring an action therefor as such monthly deficiency shall arise. Landlord shall not, in any event, be required to pay Tenant any sums received by Landlord on a reletting of the Leased Premises in excess of the rent provided in this Lease, but such excess shall reduce any accrued present or future obligations of Tenant hereunder. Landlord's re-entry and reletting of the Leased Premises without termination of this Lease shall not preclude Landlord from subsequently terminating this Lease as set forth above. Tenant agrees to pay Landlord, as Additional Rent, immediately upon demand, all reasonable expenses incurred by Landlord in obtaining possession, in performing repairs or maintenance in preparation for any failure to relet reletting any of the Projects or for any failure to collect any rent due upon any such relettingLeased Premises, including fees and commissions of attorneys, architects, agents and brokers.
iv) If Tenant shall fail to make payment of any installment of Basic Rent or any Additional Rent after the date when each such payment is due (e) No after expiration or earlier termination of the term of this Lease pursuant to Section 5.1(bany applicable notice and cure periods), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Landlord, a sum equal to two (2%) percent per annum above the then current Prime Rate, as hereinafter defined, of the amount unpaid (the "DEFAULT RATE") computed from the date such payment of Basic Rent, Rent or Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the was due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until payment. The term "PRIME RATE" shall mean the end prime rate of what would have been the term of this Lease interest published in the absence of such expirationWall Street Journal or its successor, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable from time to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such datetime.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Samples: Lease Agreement (Dave & Busters Inc)
Conditional Limitations; Default Provisions. (a) Any Section 18.1 This lease and the term here of are subject to the limitation that if, at any time during the term of this lease, any one or more of the following occurrences or acts shall constitute events (herein called an "Event of Default" under this Lease") shall occur:
(i) if 18.1.1 Tenant shall (1) fail to pay any Basic installment of the Fixed Monthly Rent or any Additional Rent, Additional Rent or other sum as and when required to be paid by Tenant hereunderany part thereof, and such failure shall continue for two within ten (210) Business Days days after delivery of written notice from Landlord in the case of Fixed Monthly Rent and within ten (or Lender10) days after notice from Landlord in the case of Additional Rent that the same are past due (subject to the provisions of Section 18.5); or
18.1.2 Tenant that such payment was not received when due, or (2) shall fail to perform or observe or perform any other provision hereof requirement of this lease on the part of Tenant to be performed or observed and such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant (provided that if such default cannot, because of the nature of such failure (provideddefault, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within the thirty (30) day period provided for herein, then such 30-day period, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured period shall be extended for such additional period of time as is may be reasonably necessary to complete the curing thereof with diligence, but in no event effect such cure provided that Tenant commences such cure within said thirty (30) day period and thereafter prosecutes such cure to exceed one hundred twenty (120) days from the date of such failurecompletion); or
(ii) if any representation 18.1.3 This lease or warranty the estate of Tenant hereunder is transferred or Guarantor set forth passes to or devolves upon any other person or party, except in a manner herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been madepermitted; or
(iii) if Tenant or ACCOR or any guarantor of 18.1.4 Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") , while in possession, shall file a voluntary petition in bankruptcy or insolvency or for reorganization or for an arrangement, administration, liquidation arrangement under the bankruptcy laws of the United States or receivership pursuant to under any federal insolvency act of any state or state shall voluntarily take advantage of any such law (or any other law governing a Guarantor), act by answer or otherwise or shall be adjudicated a bankrupt or become insolvent dissolved or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to creditors; or
18.1.5 Involuntary proceedings under any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust such bankruptcy law or any similar federal insolvency act or state law for the dissolution of a corporation shall be filed in any court and instituted against Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall which is not be discharged or denied dismissed within ninety (90) days after the of filing thereofor a custodian or receiver was appointed and took possession of Tenant's property; or
18.1.6 Tenant, or a trustee or custodian appointed for all or a substantial portion of Tenant's property pursuant to the provisions of any insolvency, bankruptcy, reorganization or other law then in effect, shall fail within the time provided by law and an order of a court having competent jurisdiction, to provide Landlord with adequate protection (ivas that term is used in 11 USC 361) if and specifically the "indubitable equivalent" of Landlord's interest in the Premises as provided in 11 USC 361(3); (If a receiverpetition shall be filed by or against Tenant in any bankruptcy, trusteereorganization, administrator composition, arrangement or liquidator insolvency proceeding pursuant to the provisions of Tenant the present Bankruptcy Code or any Guarantor subsequent Act similar thereto or amending such Act, demand shall be deemed automatically made for relief from the imposition of the 178 automatic stay presently imposed by 11 USC 362 or such later or similar section or provision as shall be in effect imposing said stay. This provision shall be deemed the request of Landlord for a hearing to be held with regard to the modification, termination or lifting of said stay and shall be deemed effective as of the date of filing of said petition by or against Tenant.) or
18.1.7 Tenant, while insolvent or unable to pay its debts as they mature, procures, permits or suffers voluntarily or involuntarily the appointment of a receiver or trustee to take charge of all or substantially all of its property; or then, upon the assets of Tenant or such Guarantor or happening and continuance of any Project one or Tenant's estate therein shall be appointed in any proceeding brought by more of the aforementioned Events of Default, Landlord may (a) give to Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety notice (90hereinafter called "Notice of Termination") terminating this lease at the expiration of five (5) days after from the date of service of such appointmentNotice of Termination, or if Tenant or a Guarantor shall consent to or acquiesce in and at the expiration of such appointment; or
five (v5) if any Project shall have been left unoccupied days, this lease and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereof.
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's termination of the term of this Lease. Upon lease, as well as all of the giving right, title and interest of such noticeTenant hereunder, shall wholly cease and expire in the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely same manner and with the same force and effect as if the date of expiration of such date five (5) day period were the date originally specified herein fixed for the expiration of the term of this Leaselease, and Tenant shall then quit and surrender the Demised Premises to Landlord, and/or (b) Landlord or Landlord's agents or servants may, either by summary process or by any proceeding at law, immediately or at any time thereafter re-enter the Demised Premises and remove therefrom Tenant, its agents, employees, servants, licensees and, subject to the terms of any non-disturbance agreements entered into by Landlord, any Subtenants and other Persons and all rights or any of Tenant hereunder shall expire its or their property therefrom, and terminaterepossess and enjoy the Demised Premises, but together with all additions, alterations and improvements thereto; but, in either case, Tenant shall remain liable as hereinafter provided.
Section 18.2 If this lease shall be terminated as provided in Section 18.1, all of the right, title, estate and interest of Tenant (ca) in and to the Demised Premises, including, without limitation, the Building and the Building Equipment, all changes, additions and alterations therein, and all renewals and replacements thereof, (b) in and to all rents, income, receipts, revenues, issues and profits issuing from the Demised Premises, or any part thereof, whether then accrued or to accrue.
Section 18.3 If this lease is terminated or if Landlord shall re-enter the Demised Premises under the provisions of Section 18.1, or in the event of the termination of this lease, or of re-entry, by or under any summary dispossess or other proceeding or action or any provision of law by reason of an Event of Default shall have happened and be continuing, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rentas damages the following:
18.3.1 In the event the Demised Premises, or any portion thereof are relet a 179 sum equal to any deficiency between the Fixed Monthly Rent and Additional Rent which would have been payable by Tenant had this lease not so terminated and the net amount, of the rents, additional rent and other charges collected on account of the lease or leases of the Demised Premises for each month of the period which would otherwise have constituted the balance of the term of this lease (subject to Landlord's obligation to use commercially reasonable efforts to mitigate damages hereunder). Any such reletting may be for a period shorter or longer than the remaining term of this lease; but in no event shall Tenant be entitled to receive any excess of such credits over the sum payable by Tenant to Landlord hereunder. Tenant shall pay Landlord the fair rental value of any space in the Demised Premises occupied by Tenant after such termination or re-entry. Suit or suits for the recovery of such damages, or any installments thereof, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to (a) require Landlord to postpone suit until the date when the term of this lease would have expired if it had not been so terminated under the provisions of Section 18.1 or under any provision of law, or had Landlord not re-entered the Demised Premises, or (b) preclude the bringing of additional or subsequent suits. Nothing herein contained shall be construed to limit or preclude (x) recovery by Landlord against Tenant of any sums required or damages to which, in addition to the damages particularly provided above, Landlord may lawfully be entitled by reason of any default hereunder on the part of Tenant, or (y) the right of Landlord to prove and obtain as liquidated damages in either (i) any court proceeding or (ii) any bankruptcy, insolvency, receivership, reorganization or dissolution proceeding, an amount equal to the maximum allowed by any statute or rule of law governing such proceeding and in effect at the time when such damages are to be proved, whether or not such amount be greater, equal to or less than the amount of the damages particularly provided above. In computing such damages there shall be added to the deficiency such reasonable expenses as Landlord may incur in connection with re-letting, such as, by way of example and not limitation, reasonable attorneys' fees, brokerage, advertising and for keeping the Demised Premises in good order or preparing the same for re-letting. Any such damages shall be paid in monthly installments by Tenant on the rent day specified in this lease. Landlord, in putting the Demised Premises in good order or preparing the same for rerental, may, at Landlord's option, make such alterations, repairs, replacements, and/or decorations in the Demised Premises as Landlord, in Landlord's reasonable judgment, considers advisable and necessary for the purpose of re- letting the Demised Premises, and the making of such alterations, repairs, replacements, and/or decorations shall not operate or be construed to release Tenant from liability hereunder as aforesaid. Landlord shall in no event be liable in any way whatsoever for failure to re-let the Demised Premises, or in the event that the Demised Premises are re-let, for failure to collect the rent thereof under such reletting, and in no event shall Tenant be entitled to receive any excess, if any, of such net rents collected over the sums payable by Tenant to Landlord hereunder. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant being evicted or dispossessed for any cause, or in the event of Landlord lawfully obtaining possession of the Demised Premises by reason of the violation by Tenant of any of the covenants and conditions of this lease, or otherwise. Notwithstanding the foregoing, if this Lease is terminated or if Landlord recovers possession of the Premises following Tenant's default, Landlord shall use commercially reasonable good faith efforts to relet the Premises.
Section 18.4 Tenant, for itself and any and all persons claiming through or under Tenant, including its creditors, upon the termination of this lease in accordance with the terms hereof, or in the event of entry 180 of judgment for the recovery of the possession of the Demised Premises in any action or proceeding, hereby waives any right of redemption provided or permitted by any statute, law or decision now or hereafter in force, and does hereby waive, surrender and give up all rights or privileges which it or they may or might have under and by reason of any present or future law or decision, to redeem the Demised Premises or for a continuation of this lease for the term of this lease hereby demised after having been dispossessed or ejected therefrom by process of law, or other lawful means.
Section 18.5 If Tenant shall default in the timely payment of Fixed Monthly Rent or Additional Rent beyond the applicable notice and cure period, and any such default shall be repeated for three (3) consecutive months or three (3) times in any consecutive twelve (12) month period, then such defaults shall be deemed to be deliberate, and thereafter Owner may serve the five (5) days' notice of termination referred to in Article 18 hereof upon Tenant without affording Tenant an opportunity to cure such further default, in which event this Lease and the term hereunder shall end and expire upon the expiration of such five (5) day period with the same force and effect as if such date were the original expiration date set forth in this lease and Tenant shall quit and surrender the Demised Premises to Owner, but shall remain liable as provided in this Lease.
Section 18.6 The words "re-enter" and "re-entry" as used herein are not restricted to their technical legal meanings.
Section 18.7 If there shall be an Event of Default which shall remain uncured, Landlord may, but shall not be obligated so to do, without notice to or demand upon Tenant, and without waiving, or releasing Tenant from, any obligations of Tenant in this lease contained, make such payment or perform such act which Tenant is obligated to perform under this lease in such manner and to such extent as may be necessary to cure such Event of Default, and, in exercising any such rights, pay any reasonably necessary and incidental costs and expenses, employ counsel and incur and pay reasonable attorneys' fees. All sums so paid by TenantLandlord and all necessary costs and expenses of Landlord incidental thereto, in each case together with interest thereon at the Interest Rate from the due date thereof to and including on the date of the making of such expenditures by Landlord, shall be deemed to be Additional Rent and, except as otherwise in this lease expressly provided, shall be payable to Landlord within Twenty (20) days after written demand, and if not promptly paid shall be added to any rent then due or thereafter becoming due under this lease, and Tenant covenants to pay any such sum or sums with interest as aforesaid and Landlord shall have (in addition to any other right or remedy of Landlord) the same rights and remedies in the event of the non-payment thereof by Tenant beyond any applicable notice and cure periods as in the case of default by Tenant in the payment of the Fixed Monthly Rent.
Section 18.8 No receipt of monies by Landlord from Tenant after the expiration, terminationcancellation or termination hereof shall reinstate, re-entry, repossession continue or removal; and thereafter, Tenant shall, until the end of what would have been extend the term of this Lease in lease, or affect any notice theretofore given to Tenant or operate as a waiver of the absence right of such expiration, termination, re-entry, repossession or removal Landlord to enforce the payment of Fixed Monthly Rent and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession reserved herein or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination possession of the term of this Lease Demised 181 Premises by proper suit, action, proceeding or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (other remedy; it being agreed that it would be impracticable that, after the service of notice to cancel or extremely difficult to fix terminate as herein provided and the actual damages)expiration of the time therein specified, an amount equal to or after the excesscommencement of any suit, if anyaction, proceeding or other remedy, or after final order or judgment for possession of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this LeaseDemised Premises, in each case from any such event, Landlord may demand, receive and collect any monies due, or thereafter falling due, without in any manner affecting such notice, suit, action, proceeding, order or judgment; and any and all such monies so collected shall be deemed payments on account of the date use and occupation of such demand (the Demised Premises, or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes election of determining value pursuant to this Section 5.1(g)Landlord, the following shall apply: (a) determinations on account of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law's liability hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Coin Merchandising Inc)
Conditional Limitations; Default Provisions. (a) Any a. The occurrence of any one or more of the following occurrences events (any such event being specified herein as a "failure" or acts "default") shall constitute an "Event of Default" Default under this Lease:
: (i) if a failure by Tenant shall to make (1regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant from complying with the provisions of this Lease): (x) fail any payment of Basic Rent which continues unremedied for a period of five (5) business days after written notice in accordance with Paragraph 21 below ("NONPAYMENT NOTICE") thereof given to pay Tenant by Landlord or Lender or Lender's designee, or (y) any Basic Rent, payment of Additional Rent or other sum as and when herein required to be paid by Tenant hereunder, and such failure shall continue which continues unremedied for two a period of ten (210) Business Days business days after delivery of written notice from a Nonpayment Notice is given to Tenant by Landlord (or Lender or Lender's designee; (ii) failure by Tenant to Tenant that such payment was not received when dueperform and observe, or a violation or breach of, the provisions of Section 14 a. or Section 14 b, c, d, or e; (2iii) fail failure by Tenant to observe perform and observe, or perform a violation or breach of, any other provision hereof in this Lease and such failure default shall continue for thirty (30) days after written notice to Tenant of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a period of thirty (30) business days after written notice thereof is given by Landlord or Lender or Lender's designee to Tenant or if such default is of such a nature that it cannot reasonably be cured within such period of thirty (30) business days, such period shall be extended for such longer time as is reasonably necessary provided that Tenant has commenced to cure such default within said period of thirty (30) business days and is actively, diligently and in good faith proceeding with continuity to remedy such default; (iii) Tenant or any guarantor of Tenant's obligations hereunder shall (A) voluntarily be adjudicated a bankrupt or insolvent, (B) or voluntarily consent to the appointment of a receiver or trustee for itself or for any of the Leased Premises, (C) voluntarily file a petition seeking relief under the bankruptcy or other than similar laws of the United States, any state or any jurisdiction, or (D) voluntarily file a general assignment for renovation the benefit of creditors; (iv) a court shall enter an order, judgment or reconstruction decree appointing, with the voluntary consent of Tenant or during periods any guarantor of seasonal closure)Tenant's obligations hereunder, a receiver or trustee for Tenant or any guarantor of Tenant's obligations hereunder or for the Leased Premises or approving a petition filed against Tenant or any guarantor of Tenant's obligations hereunder which seeks relief under the bankruptcy or other similar laws of the United States or any State, and such order, judgment or decree shall remain in force, undischarged or unstayed, ninety (90) business days after it is entered; or
(v) Tenant or any guarantor of Tenant's obligations hereunder shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; or (vi) if the estate or interest of Tenant in the Leased Premises shall be levied upon or a Guarantor shall dissolve attached in any proceeding and such estate or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required interest is about to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereofsold or transferred or such process shall not be vacated or discharged within ninety (90) business days after such levy or attachment.
(b) b. If an any Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingoccurred, Landlord shall have the right at its option, then or at any time thereafter, to do any one or more of the following without demand upon or notice to Tenant:
i) Landlord may give Tenant notice (following the occurrence of an Event of Default) of Landlord's termination intention to terminate this Lease on a date specified in such notice (which date shall be no sooner than thirty (30) days after the date of the term of this Leasenotice). Upon the giving date therein specified, unless the Event of such noticeDefault for which the termination is effected has been cured by Tenant, the term of this Lease Term or any Renewal Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminateterminate as if such date were the date hereinabove fixed for the expiration of the Term or any Renewal Term, but Tenant shall remain liable for all its obligations hereunder through the date hereinabove fixed for the expiration of the Term or any Renewal Term, including its liability for Basic Rent and Additional Rent as hereinafter provided.
(cii) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate rightmay, whether or not the term Term or any Renewal Term of this Lease shall have been terminated pursuant to Section 5.1(bclause (i) above give Tenant notice (following the occurrence of an Event of Default) to surrender the Leased Premises to Landlord on a date specified in such notice (which date shall be no sooner than thirty (30) days after the date of the notice), at which time Tenant shall surrender and deliver possession of the Leased Premises to re-enter and repossess Landlord unless the Premises and Event of Default for which the right to termination is effected has been cured by Tenant. Upon or at any time after taking possession of the Leased Premises, Landlord may remove all any persons and or property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdictiontherefrom. Landlord shall be under no liability for or by reason of any such re-entry, repossession or removal. No such re-entry, entry or repossession or removal shall be construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such termination is given intention to Tenant pursuant to Section 5.1(b)clause (i) above.
(diii) At After repossession of any time or from time to time after a re-entry, repossession or removal of the Leased Premises pursuant to Section 5.1(c)clause (ii) above, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b)clause (i) above, Landlord may (but shall be under no obligation to) relet the Leased Premises or any part thereof to such tenant or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, tenants for such term or terms and (which may be greater or less than the period which would otherwise have constituted the balance of the Term or any Renewal Term) for such rent, on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its absolute reasonable discretion, may determine. ; and Landlord may shall collect and receive any rents payable by reason of such reletting. The rents received on such reletting shall be applied (A) first to the reasonable and actual expenses of such reletting and collection, including without limitation necessary renovation and alterations of the Leased Premises (but not including tenant improvement or construction allowances), reasonable and actual attorneys' fees and any reasonable and actual real estate commissions paid, and (B) thereafter toward payment of all sums due or to become due Landlord hereunder. If a sufficient amount to pay such expenses and sums shall not be liable realized or secured, then Tenant shall pay Landlord any such deficiency monthly, and Landlord may bring an action therefor as such monthly deficiency shall arise. Landlord shall not, in any event, be required to pay Tenant any sums received by Landlord on a reletting of the Leased Premises in excess of the rent provided in this Lease, but such excess shall reduce any accrued present or future obligations of Tenant hereunder. Landlord's re-entry and reletting of the Leased Premises without termination of this Lease shall not preclude Landlord from subsequently terminating this Lease as set forth above. Tenant agrees to pay Landlord, as Additional Rent, immediately upon demand, all reasonable expenses incurred by Landlord in obtaining possession, in performing repairs or maintenance in preparation for any failure to relet reletting any of the Projects or for any failure to collect any rent due upon any such relettingLeased Premises, including fees and commissions of attorneys, architects, agents and brokers.
iv) If Tenant shall fail to make payment of any installment of Basic Rent or any Additional Rent after the date when each such payment is due (e) No after expiration or earlier termination of the term of this Lease pursuant to Section 5.1(bany applicable notice and cure periods), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Landlord, subject to the provisions of Section 28, a sum equal to two times the then current Prime Rate, as hereinafter defined, of the amount unpaid (the "DEFAULT RATE") computed from the date such payment of Basic Rent, Rent or Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the was due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until payment. The term "PRIME RATE" shall mean the end prime rate of what would have been the term of this Lease interest published in the absence of such expirationWall Street Journal or its successor, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable from time to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such datetime.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Samples: Lease Agreement (Dave & Busters Inc)
Conditional Limitations; Default Provisions. Section 19.01. If any one or more of the following events (here sometimes called “Events of Default”) shall happen:
(a) Any if default shall be made in the due and punctual payment of the following occurrences any net rent or acts shall constitute an "Event of Default" additional rent payable under this Lease:
(i) if Tenant Lease or any part thereof when and as the same shall (1) fail to pay any Basic Rent, Additional Rent or other sum as become due and when required to be paid by Tenant hereunderpayable, and such failure default shall continue for two a period of fourteen (214) Business Days days after delivery notice; or
(b) if default shall be made by Lessee in the performance of written notice from Landlord or compliance with any of the covenants, agreements, terms or conditions contained in this Lease other than those referred to in the foregoing subdivision (or Lendera) to Tenant that such payment was not received when dueof this Section, or (2) fail to observe or perform any other provision hereof and such failure default shall continue for thirty (30) a period of 30 days after written notice thereof from Lessor to Tenant of such failure (providedLessee, that or in the case of any such failure a default or a contingency which is capable of being cured but cannot be cured by the payment of money and cannot with due diligence be cured within such period of thirty (30-day period) days, if Tenant shall commence the Lessee fails to proceed promptly and with all due diligence to cure the same and thereafter to prosecute the curing thereof of such default with diligence, all due diligence (it being intended that in connection with a default not susceptible of being cured with due diligence within thirty (30) days that the time of the Lessee within which such failure may be cured to cure the same shall be extended for such period as is may be necessary to complete the curing thereof same with all due diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or
(iic) subject to the provisions of Section 19.02 of this Article, if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") Lessee shall file a voluntary petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent insolvent, or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a file any petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to seeking any federal or state bankruptcyreorganization, arrangement, composition, readjustment, liquidation, voluntary administration, administration, receivership, moratorium dissolution or trust law similar relief under the present or any similar future federal bankruptcy act or any other present or future applicable federal, state law or other statute or law, or shall be filed in any court and Tenant seek or such Guarantor shall consent to or acquiesce in the filing thereof appointment of any trustee, receiver or such petition liquidator of Lessee or answer shall not be discharged of all or denied any substantial part of its properties or of the Demised Premises; or
(d) subject to the provisions of Section 19.02 of this Article, if within ninety seventy-five (9075) days after the filing thereof; or
commencement of any proceeding against Lessee seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act or any other present or future applicable federal, state or other statute or law, such proceeding shall not have been dismissed, or if, within seventy-five (iv75) if a receiverdays after the appointment, without the consent or acquiescence of Lessee, of any trustee, administrator receiver or liquidator of Tenant or any Guarantor Lessee or of all or substantially all any substantial part of its properties or of the assets of Tenant Property, such appointment shall not have been vacated or such Guarantor stayed on appeal or of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantorotherwise, or if any such receiverif, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety seventy-five (9075) days after the expiration of any such appointmentstay, or if Tenant or a Guarantor such appointment shall consent to or acquiesce in such appointment; or
(v) if any Project shall not have been left unoccupied vacated; then and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail in any such event Lessor at any time thereafter may give written notice to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereof.
(b) If an Lessee specifying such Event of Default or Events of Default and stating that this Lease and the term hereby demised shall have occurred expire and be continuing Landlord terminate on the date specified in such notice, which shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's termination of the term of this Lease. Upon least ten (10) days after the giving of such notice, and upon the term of date specified in such notice this Lease and the estate term hereby granted demised and all rights of the Lessee under this Lease shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminate, but Tenant Lessee shall remain liable as hereinafter provided, unless before any such notice of termination of this Lease is mailed to, or served upon, Lessee, all arrears of rent and all other amounts payable by Lessee under this Lease, together in each case with interest thereon at the rate of 6% per annum from the time when the same became due and payable, and all costs and expenses incurred by or on behalf of Lessor in the premises, including reasonable attorneys’ fees, shall have been fully paid by or on behalf of Lessee, and all other defaults at the time existing under this Lease (including, without limitation, any default specified in subdivision (a) of this Section) shall have been fully cured and made good or secured to the satisfaction of Lessor, in which event the consequences of such Event of Default or Events of Default shall be deemed to be annulled.
Section 19.02. Any such proceeding or action involving bankruptcy, insolvency, reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act or any other present or future applicable federal, state or other statute or law, above set forth in subparagraphs (c) If an Event and (d) of Default Section 19.01 of this Article, shall have happened and be continuing, Landlord shall have ground for the immediate right, whether or not the term termination of this Lease shall have been terminated pursuant to the terms of this Article, only when such proceeding, action or remedy shall be taken or brought by or against Lessee or any assignee of this Lease, while such Lessee or such assignee is the owner of this Lease.
Section 5.1(b)19.03. Upon any such expiration or termination of this Lease, Lessee shall quit and peacefully surrender the Demised Premises and the Building to Lessor, without any payment therefor by Lessor, and Lessor, upon or at any time after any such expiration or termination, may without further notice, enter upon and re-enter the Property and possess and repossess itself thereof, by force, summary proceedings, ejectment or otherwise, and may dispossess Lessee and remove Lessee and all other persons and property from the Property and may have, hold and enjoy the Demised Premises and the Building and the right to remove receive all persons rental income of and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b)from the same.
(d) Section 19.04. At any time or from time to time after a re-entryany such expiration or termination, repossession Lessor may relet the Property or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenantpart thereof, in the name of Tenant or Landlord Lessor or otherwise, without notice to Tenant, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the term of this Lease) and on such conditions and for such uses (which may include concessions or free rent) as LandlordLessor, in its absolute uncontrolled discretion, may determine. Landlord determine and may collect any and receive the rents payable by reason of such relettingtherefor. Landlord Lessor shall not in no way be responsible or liable for any failure to relet the Property or any of the Projects part thereof, or for any failure to collect any rent due upon any such reletting.
(e) Section 19.05. No such expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant Lessee of its liabilities liability and obligations hereunderunder this Lease, all of which except as is expressly provided in Article 18 hereof and such liability and obligations shall survive any such expiration, expiration or termination, re-entry, repossession, removal or reletting.
(f) . In the event of the any such expiration or earlier termination of termination, whether or not the term of this Lease Property or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Defaultany part thereof shall have been relet, Tenant Lessee shall pay to Landlord the Lessor the net rent and all Basic Rent, Additional Rent and other sums charges required to be paid by Tenant, in each case together with interest thereon at Lessee up to the Rate from the due date thereof to and including the date time of such expirationexpiration or termination of this Lease, termination, re-entry, repossession or removal; and thereafter, Tenant shallthereafter Lessee, until the end of what would have been the term of this Lease in the absence of such expiration, expiration or termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord Lessor for, and shall pay to LandlordLessor, as and for liquidated and agreed current damages: (i) all Basic Rentdamages for Lessee’s default, Additional Rent the equivalent of the amount of the net rent and the other sums rent and charges which would be payable under this Lease by Tenant Lessee if this Lease were still in the absence of any such expiration, termination, re-entry, repossession or removaleffect, less (ii) the net proceeds, if any, proceeds of any reletting effected for the account of Tenant pursuant to the provisions of Section 5.1(d)19.04 hereof, after deducting from such proceeds all Lessor’s expenses of Landlord in connection with such reletting (reletting, including, without limitation, all repossession costs, brokerage and management commissions, operating expenses, legal expenses, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses’ fees, alteration costs costs, and expenses of preparation for such reletting). Tenant Lessee shall pay such liquidated and agreed current damages (herein called “deficiency to Lessor monthly on the dates days on which Basic Rent the net rent would be have been payable under this Lease if this Lease were still in the absence of such expiration, termination, re-entry, repossession or removaleffect, and Landlord Lessor shall be entitled to recover from Lessee each monthly deficiency as the same from Tenant on each such date.
(g) shall arise. At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Defaulttermination, whether or not Landlord Lessor shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f)monthly deficiencies as aforesaid, Landlord Lessor shall be entitled to recover from TenantLessee, and Tenant Lessee shall pay to Landlord Lessor, on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages)Lessee’s default, an amount equal to the excess, if any, then present worth of (a) the aggregate excess of all Basic Rent, Additional Rent and other sums which would be payable the net rent reserved under this Lease, in each case Lease from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated expiration and agreed current damages) termination for what would be the then-then unexpired term of this Lease if the same had remained in the absence of such expirationeffect, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) and the then fair rental value of the Premises Property for what would the same period.
Section 19.06. Lessee hereby expressly waives, so far as permitted by law, the service of any notice of intention to re-enter provided for in any statute, or of the institution of legal proceedings to that end, and Lessee, for and on behalf of itself and all persons claiming through or under Lessee (including any Leasehold Mortgagee or other creditor) also waives any and all right of redemption or re-entry or re-possession or to restore the operation of this Lease in case Lessee shall be such then unexpired term dispossessed by a judgment or by warrant of any court or judge or in case of re-entry or re-possession by Lessor or in case of any expiration or termination of this Lease, discounted at subject however to the Treasury Rate for right of any Leasehold Mortgagee to have a reasonable time within which to institute and complete foreclosure proceedings with diligence and continuity as provided in Section 18.12 of Article 18 hereof or to obtain a new lease in the same period (event of such excess being hereinafter referred expiration or termination in accordance with the provisions of Section 18.13 of Article 18 hereof but not otherwise. Lessee also, so far as permitted by law, waives and will waive any and all right to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), a trial by jury in the following shall apply: (a) determinations of fair rental value event that summary proceedings shall be made instituted by an MAT appraiser (engaged Lessor. The terms “enter”, “re-enter”, “entry” or “re-entry”, as used in this Lease are not restricted to their technical legal meaning.
Section 19.07. No failure by Landlord) who is Lessor to insist upon the strict performance of any covenant, agreement, term or condition of this lease or to exercise any right or remedy consequent upon a member breach thereof, and no acceptance of full or partial rent during the continuance of any such breach, shall constitute a waiver of any such breach or of such covenant, agreement, term or condition. No covenant, agreement, term or condition of this Lease to be performed or complied with by Lessee, and no breach thereof, shall be waived, altered or modified except by a written instrument executed by Lessor. No waiver of any breach shall affect or alter this Lease, but each and every covenant, agreement, term and condition of this Lease shall continue in full force and effect with respect to any other then existing or subsequent breach thereof.
Section 19.08. In the event of any breach or threatened breach by Lessee of any of the American Institute of Appraiserscovenants, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant agreements, terms or conditions contained in the absence of manifest errorthis lease. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord Lessor shall be entitled to enjoin such breach or threatened breach and shall have the maximum amount allowable under such lawright to invoke any right and remedy allowed at law or in equity or by statute or otherwise as though re-entry, summary proceedings, and other remedies were not provided for in this Lease.
Section 19.09. Each right and remedy of Lessor provided for in this Lease shall be cumulative and shall be in addition to every other right or remedy provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by Lessor of any one or more of the rights or remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by Lessor of any or all other rights or remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise.
Appears in 1 contract
Samples: Lease (Empire State Realty OP, L.P.)
Conditional Limitations; Default Provisions. SECTION 19.01. If any one or more of the following events (herein sometimes called "Events of Default") shall happen:
(a) Any if default shall be made in the due and punctual payment of the following occurrences any net rent or acts shall constitute an "Event of Default" additional rent payable under this Lease:
lease (i) if Tenant shall (1) fail to pay any Basic on account of Ground Rent, Additional Rent Impositions or other sum otherwise) or any part thereof when and as the same shall become due and when required to be paid by Tenant hereunderpayable, and such failure default shall continue for two (2) Business Days after delivery a period of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, or (2) fail to observe or perform any other provision hereof and such failure shall continue for thirty (30) 20 days after written notice thereof from Landlord to Tenant; or
(b) if default shall be made by Tenant in the performance of or compliance with any of the covenants, agreements, terms or provisions contained in this lease, other than those referred to in the foregoing paragraph (a), and such failure (provideddefault shall continue for a period of 50 days after written notice thereof from Landlord to Tenant, except that in the case of any such failure which is capable connection with a default not susceptible of being cured but cannot with due diligence within 50 days, the time of Tenant within which to cure the same shall be cured by extended for such time as may be necessary to cure the payment of money same with all due diligence, provided Tenant commences promptly and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly proceeds diligently to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for further provided that such period of time shall not be so extended as is necessary to complete subject Landlord to any criminal liability or to the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from possible termination of the date of such failure)Ground Lease; or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iiic) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a voluntary petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent insolvent, or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a file any petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to seeking any federal or state bankruptcyreorganization, arrangement, composition, readjustment, liquidation, voluntary administration, administration, receivership, moratorium dissolution or trust law similar relief under the present or any similar future federal bankruptcy act or any other present or future applicable federal, state law or other statute or law, or shall be filed in any court and Tenant seek or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, appointment of any trustee, administrator receiver or liquidator of Tenant or of all or any Guarantor substantial part of its properties or of the Demised Premises or any interest of Tenant therein; or
(d) if within 60 days after the commencement of any proceeding against Tenant seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act or any other present or future applicable federal, state or other statute or law, such proceeding shall not have been dismissed, or if, within 60 days after the appointment, without the consent or acquiescence of Tenant, of any trustee, receiver or liquidator of Tenant or of all or substantially all any substantial part of its properties or of the assets Demised Premises or any interest of Tenant therein, such appointment shall not have been vacated or such Guarantor stayed on appeal or otherwise, or if, within 60 days after the expiration of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantorsuch stay, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and appointment shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointmenthave been vacated; or
(ve) if any Project the Demised Premises shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); orbe abandoned by Tenant;
(vif) if Tenant the inclusion, without Landlord's prior written consent, of subtenants as parties to any summary or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 other proceedings for the recovery of this Lease
(viii) if any Guarantor shall default under possession of the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained Demised Premises brought by Tenant against a Total Subtenant; then and in accordance with any such event Landlord at any time thereafter during the terms and conditions continuance of Section 3.7 hereof.
(b) If an Event such Events of Default shall have occurred may give written notice to Tenant and be continuing Landlord shall be to any Leasehold Mortgagee or Total Subtenant or leasehold mortgagee of a total sublease entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's termination default, specifying such Event or Events of Default and stating that this lease and the term of this Lease. Upon the giving of such notice, the term of this Lease and the estate hereby granted demised shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for specified in such notice, which shall be at least 5 days after the expiration giving of such notice in case of an Event of Default specified in paragraph (f) of this Section, or 20 days after the giving of such notice in case of any other Event of Default; and upon the date specified in such notice, subject to the provisions of Section 19.04 hereof, this lease and the term of this Lease, hereby demised and all rights of Tenant hereunder under this lease shall expire and terminate. Nothing in the preceding paragraph shall be deemed to require Landlord to give the 20 day notice therein provided for prior to the commencement of a summary proceeding for non-payment of rent or a plenary action for the recovery of rent on account of any of the defaults specified in clause (a), but it being intended that such notice is for the purpose of creating a conditional limitation hereunder pursuant to which this lease shall terminate and Tenant shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuingbecome a hold-over tenant. If, Landlord shall have the immediate right, whether or not at any time during the term of this Lease lease, this lease is owned by more than one corporation as Tenant, the provisions of paragraphs (c) and (d) hereof shall have been terminated pursuant apply to Section 5.1(b)each such corporation.
SECTION 19.02. Upon any such expiration or termination of this lease, Tenant shall quit and peacefully surrender the Demised Premises to Landlord, and Landlord, upon or at any time after any such expiration or termination, may without further notice, enter upon and re-enter the Demised Premises and possess and repossess itself thereof, by force, summary proceedings, ejectment or otherwise, and may dispossess Tenant and remove Tenant and all other persons and property from the Demised Premises and may have, hold and enjoy the Demised Premises and the right to remove receive all persons rental income of and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b)from the same.
(d) SECTION 19.03. At any time or from time to time after a re-entry, repossession any such expiration or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b)termination, Landlord may (but shall be under no obligation to) relet the Demised Premises or any or all of the Projects for the account of Tenantpart thereof, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the term of this lease) and on such conditions and for such uses (which may include concessions or free rent) as Landlord, in its absolute uncontrolled discretion, may determine. Landlord determine and may collect any and receive the rents payable by reason of such relettingtherefor. Landlord shall not in no way be responsible or liable for any failure to relet the Demised Premises or any of the Projects part thereof, or for any failure to collect any rent due upon any such reletting.
(e) SECTION 19.04. No such expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, lease shall relieve Tenant of its liabilities liability and obligations hereunderunder this lease, all of which and such liability and obligations shall survive any such expiration, expiration or termination, re-entry, repossession, removal or reletting.
(f) . In the event of the any such expiration or earlier termination of termination, whether or not the term of this Lease or re-entry or repossession of the Demised Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Defaultany part thereof shall have been relet, Tenant shall pay to Landlord the net rent and all Basic Rent, Additional Rent and other sums charges required to be paid by Tenant, in each case together with interest thereon at Tenant up to the Rate from the due date thereof to and including the date time of such expirationexpiration or termination of this lease, termination, re-entry, repossession or removal; and thereafter, Tenant shallthereafter Tenant, until the end of what would have been the term of this Lease lease in the absence of such expiration, expiration or termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as and for liquidated and agreed current damages: damages for Tenant's default,
(ia) all Basic Rent, Additional Rent the equivalent of the amount of the net rent and the other sums rent and charges which would be payable under this Lease lease by Tenant if this lease were still in the absence of any such expirationeffect, termination, re-entry, repossession or removal, less less
(iib) the net proceeds, if any, proceeds of any reletting effected for the account of Tenant pursuant to the provisions of Section 5.1(d)19.03 hereof, after deducting from such proceeds all Landlord's expenses of Landlord in connection with such reletting (reletting, including, without limitation, all repossession costs, brokerage commissions, legal expenses, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expensesfees, alteration costs costs, and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages (herein called "deficiency") to Landlord monthly on the dates days on which Basic Rent the net rent would be have been payable under this Lease lease if this lease were still in the absence of such expiration, termination, re-entry, repossession or removaleffect, and Landlord shall be entitled to recover from Tenant each monthly deficiency as the same from Tenant on each such date.
(g) shall arise. At any time after any such expiration or earlier termination termination, in lieu of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected collecting any liquidated and agreed current damages pursuant to Section 5.1(f)further monthly deficiencies as aforesaid, Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord Landlord, on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages)default, an amount equal to the excess, if any, difference between the net rent and all additional rent reserved hereunder for the unexpired portion of (a) the aggregate of all Basic Rent, Additional Rent term demised and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair and reasonable rental value of the Demised Premises for what would the same period. In the computation of such damages the difference between any installment of rent becoming due hereunder after the date of termination and the fair and reasonable rental value of the Demised Premises for the period for which such installment way payable shall be such then discounted to the date of termination at the rate of four percent (4%) per annum. If the Demised Premises or any part thereof be re-let by Landlord for the unexpired term of this Leasesaid lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes or any part thereof, before presentation of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies proof of such determinations and supporting analysis liquidated damages to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit court, commission or tribunal, the amount of rent reserved upon such re-letting shall prima facie be the fair and reasonable rental value for the part or the whole of the premises so re-let during the term of the re-letting. Nothing herein contained shall limit or prejudice the right of Landlord to prove for and obtain as liquidated final damages by reason of such termination, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such damages are to be proved, whether or not such amount be greater, equal to, or less than the amount above agreed uponof the difference referred to above.
SECTION 19.05. Tenant hereby expressly waives, so far as permitted by law, the service of any notice of intention to re-enter provided for in any statute, and Tenant, for and on behalf of itself and all persons claiming through or under Tenant (including but not limited to a leasehold mortgagee or other creditor of a Total Subtenant), also waives any and all right of redemption or re-entry or re-possession or to restore the operation of this lease in case Tenant shall be dispossessed by a judgment or by warrant of any court or judge or in case of re-entry or re-possession by Landlord or in case of any expiration or termination of this lease, subject to the right of a Leasehold Mortgagee or a Total Subtenant or a leasehold mortgagee of a total sublease to obtain a new lease in strict accordance with the provisions of Sections 18.05 and 18.13 hereof. Landlord and Tenant, so far as permitted by law, waive and will waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way connected with this lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of said premises, or any claim of injury or damage. The terms "enter", "re-enter", "entry" or "re-entry", as used in this lease are not restricted to their technical legal meaning.
SECTION 19.06. No failure by Landlord to insist upon the strict performance of any covenant, agreement, term or condition of this lease or to exercise any right or remedy consequent upon a breach thereof, and no acceptance of full or partial rent during the continuance of any such breach, shall constitute a waiver of any such breach or of such covenant, agreement, term or condition. No covenant, agreement, term or condition of this lease to be performed or complied with by Tenant, and no breach thereof, shall be waived, altered or modified except by a written instrument executed by Landlord. No waiver of any breach shall affect or alter this lease, but each and every covenant, agreement, term and condition of this lease shall continue in full force and effect with respect to any other then existing or subsequent breach thereof.
SECTION 19.07. In the event of any breach or threatened breach by Tenant of any of the covenants, agreements, terms or conditions contained in this lease, Landlord shall be entitled to enjoin such breach or threatened breach and shall have the maximum amount allowable right to invoke any right and remedy allowed at law or in equity or by statute or otherwise as through re-entry, summary proceedings, and other remedies were not provided for in this lease.
SECTION 19.08. Each right and remedy of Landlord provided for in this lease shall be cumulative and shall be in addition to every other right or remedy provided for in this lease or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by Landlord of any one or more of the rights or remedies provided for in this lease or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by Landlord of any or all other rights or remedies provided for in this lease or now or hereafter existing at law or in equity or by statute or otherwise.
SECTION 19.09. Interest at the rate of 6% per annum shall accrue upon any net rent or additional rent payable under such lawthis lease during any period while the payment thereof by Tenant may be delayed.
Appears in 1 contract
Samples: Sublease (Sl Green Realty Corp)
Conditional Limitations; Default Provisions. 25.1 This Lease and the term and estate hereby granted are subject to the limitation that, if at any time during the term hereof, any one or more of the following events shall occur, each such event shall be deemed an Event of Default and a breach of this Lease.
(a) Any of the following occurrences or acts shall constitute an "Event of Default" under this Lease:
(i) if If Tenant shall (1) fail to pay any Basic installment of Rent (including any item of Additional Rent, Additional Rent ) or any part thereof or any other sum as and when monetary obligation required to be paid by Tenant hereunder, to Landlord hereunder and such failure shall continue for two ten (210) Business Days days after delivery the giving of written notice thereof from Landlord to Tenant; or
(or Lenderb) to If Tenant that such payment was not received when due, or (2) shall fail to perform or observe or perform any other provision hereof requirement of this Lease (not hereinbefore in this Section 25.1 specifically referred to) on the part of Tenant to be performed or observed, and such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant of such failure (providedTenant, that or in the case of connection with any such failure which is capable default not susceptible of being cured but cannot be cured by the payment of money and cannot with due diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a said period of thirty (30) days days, such longer time as may be needed by Tenant to cure the default, not to exceed ninety (other than for renovation 90) days, provided Tenant commences to cure within the initial thirty (30) day period and proceeds thereafter with all due diligence and the continuance of which will not subject Landlord to the risk of criminal liability or reconstruction or during periods to foreclosure of seasonal closure)any superior mortgage, if any; or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereof.
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's termination of the term of this Lease. Upon the giving of such notice, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If Tenant fails to pay any installment of Rent for two (2) consecutive months or for a total of four (4) months in any period of twelve (12) months, or more than three (3) times in any six (6) month period, then notwithstanding that such defaults shall have each been cured within the applicable grace period, any similar default shall be deemed to be deliberate and Landlord may thereafter be entitled to its remedies for breach of this Lease as hereinafter set forth without affording to Tenant an opportunity to cure such default.
25.2 In case of any Event of Default shall have happened and be continuingunder Article 25.1, at any time following the expiration of the respective grace periods above mentioned, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant in addition to Section 5.1(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or remedy that it may have at law and/or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord equity may elect to terminate this Lease unless by serving notice upon the Tenant of its election to terminate this Lease which notice shall specify a termination date not less than ten (10) days after the date of serving such notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of and this Lease shall have then expire on the date so specified as if that date had been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all originally fixed as the Expiration Date of the Projects for term herein granted, however, Tenant's obligation to pay rent shall survive the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant and shall continue to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with accrue interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such dateInterest Rate.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Samples: Lease Agreement (Paytrust Inc)
Conditional Limitations; Default Provisions. (a) Any The occurrence of any one or more of the following occurrences events (any such event being specified herein as a “failure” or acts “default”) shall constitute an "Event of Default" Default under this Lease:
: (i) if a failure by Tenant to make (regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant from complying with the provisions of this Lease): (x) any payment of Basic Rent which continues unremedied for a period of ten (10) business days after written notice (“Nonpayment Notice”) thereof is given to Tenant by Landlord (provided, however, that after Landlord has given Tenant a Nonpayment Notice on two (2) prior occasions during any twelve (12) month period, Landlord shall not be required to give Tenant a Nonpayment Notice for any subsequent failure during such twelve (112) fail to pay month period), or (y) any Basic Rent, payment of Additional Rent or other sum as and when herein required to be paid by Tenant hereunder, and such failure shall continue for two (2) Business Days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, or (2) fail to observe or perform any other provision hereof and such failure shall continue for thirty (30) days after written notice to Tenant of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended continues unremedied for a period of thirty (30) days after a Nonpayment Notice is given to Tenant by Landlord (other than provided, however, that after Landlord has given Tenant a Nonpayment Notice on two (2) prior occasions during any twelve (12) month period, Landlord shall not be required to give Tenant a Nonpayment Notice for renovation or reconstruction or any subsequent failure during periods of seasonal closuresuch twelve (12) month period); or
(ii) subject to Paragraph 18(b) above, failure by Tenant to perform and observe, or a violation or breach of, any other provision in this Lease and such default shall continue for a period of thirty (30) days after written notice thereof is given by Landlord to Tenant or if such default is of such a nature that it cannot reasonably be cured within such period of thirty (30) days, such period shall be extended for such longer time as is reasonably necessary not to exceed ninety (90) days in the aggregate, provided that Tenant has commenced to cure such default within said period of thirty (30) days and is actively, diligently and in good faith proceeding with continuity to remedy such default; (iii) Tenant shall (A) voluntarily be adjudicated as bankrupt or insolvent, (B) voluntarily consent to the appointment of a receiver or trustee for itself or for the Leased Premises, (C) voluntarily file a petition seeking relief under the bankruptcy or other similar laws of the United States, any state or any jurisdiction, or (D) voluntarily file a general assignment for the benefit of creditors; (iv) a court shall enter an order, judgment or decree appointing, with the voluntary consent of Tenant, a receiver or trustee for Tenant or for the Leased Premises or approving a petition filed against Tenant which seeks relief under the bankruptcy or other similar laws of the United States or any State, and such order, judgment or decree shall remain in force, undischarged or unstayed, ninety (90) business days after it is entered; (v) Tenant shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; (vi) if the estate or interest of Tenant in the Leased Premises shall be levied upon or a Guarantor attached in any proceeding and such estate or interest is about to be sold or transferred or such process shall dissolve not be vacated or otherwise fail to maintain its legal existencedischarged within ninety (90) business days after such levy or attachment; or
or (vii) if the representations and warranties of Tenant contained in Paragraph 34 of this Lease shall be or become untrue or inaccurate in any respect. The foregoing notwithstanding, Lender and its successors, assigns and purchasers shall have no obligation to give Tenant any Nonpayment Notice with respect to any payment default under Sections 4.1(a), 4.1(b) or 10.3 the terms of this Lease
(viii) if any Guarantor shall default . If Lender or its successor, assigns or purchasers have succeeded to the interests of Landlord under the provisions of its guaranty; or
(ix) if this Lease, Tenant shall fail be in default (i) in the payment of Basic Rent if such payment of Basic Rent remains unpaid for a period of ten (10) days after the applicable Basic Rent Payment Date and (ii) with respect to maintain any insurance required to be maintained by Tenant in accordance with the terms payment of Additional Rent is not paid within thirty (30) days after the date which such Additional Rent is due and conditions of Section 3.7 hereofpayable.
(b) If an any Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingoccurred, Landlord shall have the right at its option, then or at any time thereafter, during the continuance of such Event of Default, to give Tenant notice of Landlord's termination do any one or more of the term of following without demand upon or (except as provided in this LeaseParagraph 20(b)) notice to Tenant:
(i) Landlord may terminate this Lease effective on a date specified in a notice to Tenant. Upon the giving of such noticedate therein specified, the term of this Lease Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminateterminate as if such date were the date herein above fixed for the expiration of the Term, but Tenant shall remain liable for all its obligations hereunder through the date herein above fixed for the expiration of the Term, including its liability for Basic Rent and Additional Rent as hereinafter provided.
(cii) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate rightmay, whether or not the term Term of this Lease shall have been terminated pursuant to Section 5.1(b)clause (i) above, give Tenant notice (following the occurrence of an Event of Default) to re-enter surrender the Leased Premises to Landlord on a date specified in such notice, at which time Tenant shall surrender and repossess deliver possession of the Leased Premises and to Landlord. Upon or at any time after taking possession of the right to Leased Premises, Landlord may remove all any persons and or property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdictiontherefrom. Landlord shall be under no liability for or by reason of any such re-entry, repossession or removal. No such re-entry, entry or repossession or removal shall be construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such termination is given intention to Tenant pursuant to Section 5.1(b)clause (i) above.
(diii) At any time or from time to time after a re-entry, After repossession or removal of the Leased Premises pursuant to Section 5.1(c)clause (ii) above, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b)clause (i) above, Landlord may (but shall be under no obligation to) use commercially reasonable efforts to relet the Leased Premises or any part thereof to such tenant or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, tenants for such term or terms and (which may be greater or less than the period which would otherwise have constituted the balance of the Term) for such rent, on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its absolute reasonable discretion, may determine. ; and Landlord may shall collect and receive any rents payable by reason of such reletting. The rents received on such reletting shall be applied (A) first to the reasonable and actual expenses of such reletting and collection, including without limitation necessary renovation and alterations of the Leased Premises, reasonable and actual attorneys’ fees and any reasonable and actual real estate commissions paid, and (B) thereafter toward payment of all sums due or to become due Landlord hereunder. If a sufficient amount to pay such expenses and sums shall not be liable for realized or secured, then Tenant shall pay Landlord any failure such deficiency monthly, and Landlord may bring an action therefor as such monthly deficiency shall arise. Landlord shall not, in any event, be required to relet pay Tenant any sums received by Landlord on a reletting of the Projects Leased Premises in excess of the rent provided in this Lease, but such excess shall reduce any accrued present or for any failure future obligations of Tenant hereunder. Landlord’s re-entry and reletting of the Leased Premises without termination of this Lease shall not preclude Landlord from subsequently terminating this Lease as set forth above. Landlord may make such Alterations as Landlord in its reasonable discretion may deem advisable. Tenant agrees to collect any rent due pay Landlord, as Additional Rent, immediately upon any such relettingdemand, all reasonable expenses incurred by Landlord in obtaining possession, in performing Alterations and in reletting the Leased Premises, including reasonable fees and commissions of attorneys, architects, agents and brokers.
(eiv) No expiration If Tenant shall fail to make payment of any installment of Basic Rent or earlier termination any Additional Rent on or before the date when each such payment is due and such failure continues unremedied for a period of ten (10) days (in the term case of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(cBasic Rent) or otherwise, and no reletting twenty (20) days (in the case of the Premises pursuant Additional Rent) after a Nonpayment Notice is given to Section 5.1(d) Tenant by Landlord or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal Lender or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of DefaultLender’s designee, Tenant shall pay to Landlord all Landlord, a sum equal to two (2%) percent per annum above the then current Prime Rate, as hereinafter defined, of the amount unpaid (the “Default Rate”) computed from the date such payment of Basic Rent, Rent or Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the was due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until payment. The term “Prime Rate” shall mean the end prime rate of what would have been the term of this Lease interest published in the absence of such expirationWall Street Journal or its successor, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable from time to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such datetime.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "“Event of Default" ” under this Lease:
(i) if Tenant shall (1) fail to pay any Basic Rent, Additional Rent or other sum as and when required to be paid by Tenant hereunderunder this Lease, and such failure shall continue for two (2) Business Days (with respect to Basic Rent or 5 Business Days (with respect to Additional Rent or any other sum) after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, or (2) fail to observe or perform any other provision hereof of this Lease (other than those referred to in clauses (vii) and (ix) of this Section 5.1(a)) and such failure shall continue for thirty (30) days after written notice to Tenant of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty eighty (120180) days from the date of such failure); or;
(ii) if any representation or warranty of Tenant Tenant, Seller or Guarantor set forth herein herein, in the Contract of Sale or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's ’s obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "“Guarantor"”) shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project or Tenant's ’s estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closureas permitted by Section 1.2(b)); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections Section 4.1(a), 4.1(b) or 10.3 4.1(d) or Schedule K of this Lease; or
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereofof this Lease or the letter of even date herewith from Tenant to Landlord relating to insurance; or
(x) if Tenant shall default under Sections 7.2 and/or 7.3 of this Lease.
(xi) Any event that but for the giving of notice or the passage of time would be an Event of Default shall be a “Default.”
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's ’s termination of the term Term of this Lease. Upon the giving of such notice, the term Term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term Term of this Lease, and all rights of Tenant hereunder under this Lease shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate right, whether or not the term Term of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term Term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term Term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunderunder this Lease, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term Term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term Term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' ’ fees and expenses (including fees and expenses of appellate proceedings), employees' ’ expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term Term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's ’s default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f5.1(f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages, and the liquidated and agreed final damages reasonably approximate to the actual damages Landlord would sustain on account of a Tenant Default or Event of Default, and the same are not intended to be a penalty), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term Term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "“Treasury Rate"”) over (b) the then fair rental value of the Premises for what would be such then unexpired term Term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "“Liquidated Damages"”). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT MAI appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of Default" under this Lease:
(i) if Tenant shall (1) fail to pay any Basic Rent, Additional Rent or other sum as and when required to be paid by Tenant hereunder, and such failure shall continue for two (2) three Business Days after delivery of written notice from Landlord (or Lender) to Tenant that of such payment was not received when duedefault, or (2) fail to observe or perform any other provision hereof (other than those specified in clauses (ii)-(x) of this subsection 5.1(a)) and such failure shall continue for thirty (30) days after written notice to Tenant of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) 180 days from the date of such original failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease Sierra Health Services, Inc., a Nevada corporation (ACCOR and/or any such guarantor are each referred to herein as a "" Guarantor"" ) shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project the Premises or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(viivi) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 Section 4.1 of this Lease; or
(viiivii) if any Guarantor shall default under the provisions of its guaranty;
(viii) if an Event of Default shall occur and continue under any of the leases set forth in Schedule G and the landlord thereunder is the same as, or is an affiliate of, the Landlord under this Lease; or
(ix) if Tenant shall fail to maintain or replace any insurance required to be maintained or replaced by Tenant in accordance with the terms and conditions of Section 3.7 3.6 hereof; or
(x) if Tenant shall dissolve or otherwise fail to maintain its legal existence unless such dissolution or termination of Tenant's legal existence occurs in connection with a merger completed in accordance with Section 4.1(b). (As used in Section 5.1 (a) (viii), an entity is an "affiliate" of Landlord if such entity controls, is controlled by, or is under common control with, Landlord or any entity controlling Landlord.)
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord (with Lender's consent) shall have the right to give Tenant notice of Landlord's termination of the term of this Lease. Upon the giving of such notice, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened occurred and be continuing, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects Premises for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects Premises or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entryreentry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, and subject to applicable law, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Default Rate from the due date thereof to and including the date of such Such expiration, termination, re-re- entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects the Premises shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final additional damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages)above, an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations to pay damages under Section 5.1(f) to pay liquidated and agreed current damages)) for what would be the then-unexpired term of this Lease Term in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Future Rental Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser Appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers), with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Future Rental Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages Future Rental Damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Samples: Lease Agreement (Windrose Medical Properties Trust)
Conditional Limitations; Default Provisions. (a) Any The occurrence of any one or more of the following occurrences events (any such event being a "failure" or acts shall "default") will constitute an "Event of Default" Default under this Lease:
: (i) if a failure by Tenant shall to make (1regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant from complying with the provisions of this Lease): (x) fail any payment of Basic Rent which continues unremedied for a period of 3 business days after written notice ("Nonpayment Notice") thereof given to pay Tenant by Landlord; or (y) any Basic Rent, payment of Additional Rent or other sum as and when herein required to be paid by Tenant hereunder, which continues unremedied for a period of 15 business days after a Nonpayment Notice is given to Tenant by Landlord; (ii) failure of Tenant to deliver to Landlord evidence of renewal and replacement Policies not less than 30 days prior to the expiration date(s) of such Policies as required by Section 14(b) hereof and such failure default shall continue for two (2) Business Days a period of 10 days after delivery of the written notice from thereof is given by Landlord to Tenant, (or Lenderiii) failure by Tenant to Tenant that such payment was not received when dueperform and observe, or (2) fail to observe a violation or perform breach of, any other provision hereof in this Lease and such failure shall continue default continues for thirty (30) a period of 30 days after written notice thereof is given by Landlord to Tenant or if such default is of such failure a nature that it cannot reasonably be cured within such period of 30 days, such period will be extended for such longer time as is reasonably necessary provided that Tenant has commenced to cure such default within said period of 30 business days and is actively, diligently and in good faith proceeding with continuity to remedy such default not to exceed an additional 120 days; (providediv) Tenant: (A) is voluntarily adjudicated a bankrupt or insolvent; (B) or voluntarily consent to the appointment of a receiver or trustee for itself or for the Leased Premises; (C) voluntarily files a petition seeking relief under the bankruptcy or other similar laws of the United States, that any state or any jurisdiction; or (D) voluntarily files a general assignment for the benefit of creditors; (v) a court enters an order, judgment or decree appointing, with the voluntary consent of Tenant, a receiver or trustee for Tenant or for the Leased Premises or approving a petition filed against Tenant which seeks relief under the bankruptcy or other similar laws of the United States or any State, and such order, judgment or decree remains in force, undischarged or unstayed, 180 business days after it is entered; (vi) Tenant in any insolvency proceedings is liquidated or dissolved or voluntarily commences proceedings towards its liquidation or dissolution;(vii) the estate or interest of Tenant in the case Leased Premises is levied upon or attached in any proceeding and such estate or interest is about to be sold or transferred or such process is not vacated or discharged within 180 business days after such levy or attachment; (viii) should any representation of Tenant in Section 33 hereof be untrue in any material respect as of the date made. Notwithstanding anything in the foregoing portions of this Section 19(a), if Landlord or any Lender receives notice that Tenant has not timely paid any insurance premiums required under this Lease, then either Landlord or such Lender may pay the premiums and xxxx Tenant for the amount of the premiums (which xxxx must include reasonable proof of payment of the premiums), and Tenant must pay the premiums to Landlord or such Lender, as applicable, within 15 days after receiving the xxxx. If Landlord or any Lender pays the insurance premiums as provided in the previous sentence, and Tenant reimburses Landlord or Lender as applicable within the 15 day period provided above, Tenant's failure to pay the premiums will not be considered to be a default under this Lease.
(b) If any Event of Default occurs, Landlord shall have the right, at its option, to do any one or more of the following without demand upon or notice to Tenant:
(i) Landlord may give Tenant notice (following the occurrence of an Event of Default) of Landlord's intention to terminate this Lease on a date specified in such notice (which date will be no sooner than 3 business days after the date the notice is capable received by Tenant (the "Termination Date"). Upon the Termination Date, unless the Event of being cured but cannot Default for which the termination is effected is a default which can be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereof.
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's termination of the term of this Lease. Upon the giving of such noticehas been cured by Tenant, the term of this Lease Term and the estate hereby granted shall and all rights of Tenant hereunder will expire and terminate on such date as fully and completely and with the same effect as if such date Termination Date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminateTerm, but Tenant shall will remain liable for all its obligations under this Lease through the date otherwise fixed for the expiration of the Term in Section 5, including its liability for Basic Rent and Additional Rent as hereinafter providedprovided below.
(cii) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate rightmay, whether or not the term Term of this Lease shall have has been terminated pursuant to Section 5.1(bclause (i) above give Tenant notice (following the occurrence of an Event of Default) to surrender the Leased Premises to Landlord on a date specified in such notice (which date shall be no sooner than 30 days after the date the notice is received by Tenant), at which time Tenant will surrender and deliver possession of the Leased Premises to re-enter Landlord unless the Event of Default for which the termination is effected is a default which can be cured by the payment of money and repossess such Event of Default has been cured by Tenant within 3 business days of Landlord's notice given under this paragraph. Upon or at any time after taking possession of the Premises and the right to Leased Premises, Landlord may remove all any persons and or property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdictiontherefrom. Landlord shall be under will have no liability for or by reason of any such re-entry, repossession or removal. No such re-entry, entry or repossession or removal shall may be construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such termination is given intention to Tenant pursuant to Section 5.1(b)clause (i) above.
(diii) At After repossession of any time or from time to time after a re-entry, repossession or removal of the Leased Premises pursuant to Section 5.1(c)clause (ii) above, whether or not the term of this Lease shall have has been terminated pursuant to Section 5.1(b)clause (i) above, Landlord may (but shall be under no obligation to) relet the Leased Premises or any part thereof to such tenant or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, tenants for such term or terms and (which may be greater or less than the period which would otherwise have constituted the balance of the Term) for such rent, on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its absolute reasonable discretion, may determine. ; and Landlord may will collect and receive any rents payable by reason of such reletting. Landlord shall not The rents received on such reletting will be liable for any failure applied: (A) first to relet any the reasonable and actual expenses of such reletting and collection, including without limitation necessary renovation and alterations of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissionsLeased Premises, reasonable and actual attorneys' fees and any reasonable and actual real estate commissions paid; and (B) thereafter toward payment of all sums due or to become due Landlord hereunder. If a sufficient amount to pay such expenses (and sums is not realized or secured, then Tenant will pay Landlord any such deficiency monthly, and Landlord may bring an action therefor as such monthly deficiency shall arise. Landlord will not, in any event, be required to pay Tenant any sums received by Landlord on a reletting of the Leased Premises in excess of the rent provided in this Lease, but such excess will reduce the accrued present or future obligations of Tenant under this Lease. Landlord's re-entry and reletting of the Leased Premises without termination of this Lease will not preclude Landlord from subsequently terminating this Lease as set forth in this Section. Landlord may make such Alterations as Landlord in its reasonable discretion may deem advisable. Tenant agrees to pay Landlord, as Additional Rent, immediately upon demand, all reasonable out-of-pocket costs and expenses incurred by Landlord in obtaining possession, in performing Alterations and in reletting any of the Leased Premises, including fees and expenses commissions of appellate proceedings)attorneys, employees' expensesarchitects, alteration costs agents and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such datebrokers.
(giv) At If Tenant fails to make payment of any time after installment of Basic Rent or any Additional Rent on or before the date when each such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Defaultpayment is due, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall will pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages)Landlord, an amount equal to the excess, if any, amount unpaid times the rate (the "Default Rate") that is the greater of (aA) 4% per annum above the then current Prime Rate (defined below) or (B) the aggregate of all Basic Rentdefault rate owed by Landlord under its loan documents with any Lender, Additional Rent and other sums which would be payable under this Lease, in each case computed from the date such payment of such demand (or, if it be earlier, Basic Rent or Additional Rent was due through and including the date of payment. The term "Prime Rate" means the prime rate of interest published in The Wall Street Journal or its successor, from time to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such lawtime.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of Default" Default under this Lease:
(i) if Tenant If Lessee shall (1) fail to pay any Basic Rent, Additional Rent additional rent or other sum as and when required to be paid by Tenant hereunder, and such failure shall continue for two (2) Business Days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, due or (2) fail to observe or perform any other provision hereof and such nonmonetary failure shall continue for thirty (30) 30 days after written notice to Tenant Lessee of such failure (providedprovided that, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period not to exceed 180 days as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or;
(ii) if If any representation or warranty of Tenant or Guarantor Lessee set forth herein or in any noticecertificate provided by Lessee pursuant to this Lease, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material adverse respect as of the time when the same shall have been made in a way adverse to Lessor and Lessor shall suffer a loss or detriment as a result thereof, including, without limitation, the taking of any action (including, without limitation, the demise of the Premises to Lessee herein) in reliance upon such representation or warranty and, in each case, the facts shall not be conformed to the representation and warranty as soon as practicable in the circumstances (but in no event to exceed 30 days) after written notice to Lessee from Lessor of such inaccuracy and Lessor restored to the position it would have enjoyed had such representation or warranty been accurate at the time it was made; or;
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") If Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become duecreditors, or if a petition or answer proposing the adjudication of Tenant or a Guarantor Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust bankruptcy law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor Lessee shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) 90 days after the filing thereof; or;
(iv) if If a receiver, trustee, administrator trustee or liquidator conservator of Tenant or any Guarantor Lessee or of all or substantially all of the assets of Tenant or such Guarantor Lessee or of any Project the Premises or Tenant's Lessee’s or estate therein shall be appointed in any proceeding brought by Tenant or a GuarantorLessee, or if any such receiver, trustee or liquidator conservator shall be appointed in any proceeding brought against Tenant or a Guarantor Lessee and shall not be discharged within ninety (90) 90 days after such appointment, or if Tenant or a Guarantor Lessee shall consent to or acquiesce in such appointment; or;
(v) if any Project If the Premises shall have been left unoccupied abandoned and unattended not maintained in the manner required hereunder for a period of thirty (30) 10 consecutive days (other than for renovation or reconstruction or during periods after written notice of seasonal closure); orsuch from Lessor to Lessee;
(vi) if Tenant If a Letter of Credit has been posted as the Security Deposit or other security hereunder, and the issuer of the Letter of Credit cancels, terminates or refuses to honor it, and Lessee shall fail to renew the Letter of Credit within forty-five (45) days or shall fail to post a cash equivalent amount of the Letter of Credit or a Guarantor shall dissolve replacement letter of credit within forty-five (45) days after notice of such cancellation, termination or otherwise fail to maintain its legal existencerefusal; orand
(vii) if Tenant shall default If there is an Event of Default by Lessee under Sections 4.1(athat certain Lease Agreement dated of even date hereof between Lessee and NL Ventures V Resource, L.P., as Lessor (the “Fernley Lease”), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant for Lessee’s facility located in accordance with the terms and conditions of Section 3.7 hereofFernley, Nevada.
(b) If an Event of Default shall have occurred happened and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingcontinuing, Landlord Lessor shall have the right to give Tenant Lessee notice of Landlord's Lessor’s termination of the term of this LeaseLease Term. Upon the giving of such notice, the term of this Lease Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this LeaseLease Term, and all rights of Tenant Lessee hereunder shall expire and terminate, but Tenant Lessee shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord Lessor shall have the immediate rightright upon seventy-two (72) hour notice, whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(bsubsection 7.01(b), to re-enter reenter and repossess the Premises and the right to remove all persons and property (subject to Section 3.02) therefrom by summary proceedings, ejectment, ejectment or any other legal action or in any lawful manner Landlord Lessor determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord Lessor shall be under no liability by reason of any such re-entryreentry, repossession or removal. No such re-entryreentry, repossession or removal shall be construed as an election by Landlord Lessor to terminate this the Lease Term unless a notice of such termination is given to Tenant Lessee pursuant to Section 5.1(b)subsection 7.01(b) or unless such termination is decreed by a court.
(d) At any time or from time to time after a re-entryreentry, repossession or removal pursuant to Section 5.1(csubsection 7.01(c), whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(bsubsection 7.01(b), Landlord Lessor may (but shall be under no obligation to) relet any or all of the Projects Premises for the account of TenantLessee, in the name of Tenant Lessee or Landlord Lessor or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord Lessor may collect any rents payable by reason of such reletting. Landlord Lessor shall not be liable for any failure to relet any of the Projects Premises or for any failure to collect any rent due upon any such reletting. Notwithstanding the foregoing, Lessor agrees to make reasonable efforts to mitigate its damages under this Lease in the event Lessee actually vacates or advises Lessor that it is, as of a specified date, to vacate the Premises. The phrase “reasonable efforts,” as it relates to Lessor’s duty to attempt to relet the Premises, shall require Lessor to do only the following: (i) notify Lessor’s management company or broker, if any, in writing of the availability of the Premises for reletting, (ii) post Lessor’s leasing contact telephone number in an appropriate area of the Premises, and (iii) show the Premises to any prospective Lessee interested in the Premises and to any prospective Lessee specifically referred to Lessor by Lessee. Under any requirement of Lessor to use “reasonable efforts” as described herein, (i) Lessor shall not be required to relet the Premises ahead of any other properties in the same market not producing any income to Lessor; (ii) Lessor shall be entitled to consider Lessee quality, Lessee-mix, the financial condition of any prospective Lessee, the nature of the Premises, the proposed use of the Premises by any prospective Lessee, and any rights of existing sublessees located in the Premises, in making any leasing decision without being deemed to have violated its mitigation requirement hereunder; and (iii) under any new lease entered into by Lessor, Lessor may relet all or any portion of the Premises to create an appropriate block of space for a new Lessee, may relet for a greater or lesser term than that remaining at that time under this Lease, and may include free rent, concessions, inducements, alterations and upgrades in the new lease. If a reletting occurs, Lessor shall recoup all of its expenses of reletting (including, without limitation, all expenses relating to remodeling, alterations, repairs, capital improvements, brokerage fees, decorating fees, and fees for architects, designers, space planners and attorneys) before Lessee is entitled to a credit on the damages owed by Lessee hereunder. If Lessor shall do all the foregoing then, anything in this Lease, or any statute, or common law rule to the contrary notwithstanding, Lessor shall be deemed to have met its duty (if any) to mitigate its damages hereunder.
(e) No expiration or earlier termination of the term of this Lease Term pursuant to Section 5.1(bsubsection 7.01(b), by operation of law or otherwise, and no re-entryreentry, repossession or removal pursuant to Section 5.1(csubsection 7.01(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(dsubsection 7.01(d) or otherwise, shall relieve Tenant Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entryreentry, repossession, removal or reletting.
(f) In the event of the any expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant Lessee shall pay to Landlord Lessor all Basic Rent, Additional Rent additional rent and other sums required to be paid by TenantLessee, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entryreentry, repossession or removal; and , and, thereafter, Tenant Lessee shall, until the end of what would have been the term of this Lease Term in the absence of such expiration, termination, re-entryreentry, repossession or removal and whether or not any Projects the Premises shall have been relet, be liable to Landlord Lessor for, and shall pay to LandlordLessor, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent all additional rent and other sums which would be payable under this Lease by Tenant Lessee in the absence of any such expiration, termination, re-entryreentry, repossession or removal, together with all expenses of Lessor in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys’ fees and expenses (including, without limitation, fees and expenses of appellate proceedings), employee’s expenses, alteration costs and expenses of necessary preparation for such reletting), less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant Lessee pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such relettingsubsection 7.01(d). Tenant Lessee shall pay such liquidated and agreed current damages on the dates on which Basic Rent rent would be payable under this Lease in the absence of such expiration, termination, re-entryreentry, repossession or removal, and Landlord Lessor shall be entitled to recover the same from Tenant Lessee on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property thereon therefrom by reason of the occurrence of an Event of Default, whether or not Landlord Lessor shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(fsubsection 7.01(f), Landlord Lessor shall be entitled to recover from TenantLessee, and Tenant Lessee shall pay to Landlord Lessor on demand, as and for liquidated and agreed final damages for Tenant's Lessee’s default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent additional rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the to date to which Tenant Lessee shall have satisfied in full its obligations under Section 5.1(fsubsection 7.01(f) to pay liquidated and agreed current damages) for what would be the then-then unexpired term of this Lease Term in the absence of such expiration, termination, re-entryreentry, repossession or removal, discounted at a rate the Reference Rate (equal to the then current yield on U.S. United States Treasury obligations Notes having a maturity as of comparable maturity to the stated date for expiration of the then existing Term (the "Treasury Rate"of this Lease, plus 2% per annum) over (b) the then fair rental value of the Premises for what would be such then unexpired term of this LeasePremises, discounted at the Treasury Reference Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest errorperiod. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord Lessor shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Samples: Lease Agreement (Truck Hero, Inc.)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "“Event of Default" ” under this Lease:
(i) if Tenant shall (1) fail to pay any Basic Rent, Additional Base Monthly Rent or other sum as and when required to be paid by Tenant hereunder, and such failure shall continue for two (2) Business Days within 5 days after delivery receipt of written notice from Landlord (or Lender) to Tenant that such payment Base Monthly Rent was not received when duepaid on the due date, or Tenant fails to pay any Rent (2other than Base Monthly Rent) fail or any other sum due hereunder within ten (10) days after receipt of written notice from Landlord that such rent or other charges are delinquent; or
(ii) Tenant fails to observe or perform any other provision hereof not expressly described in Section 5.1(a) above and such failure shall continue for thirty (30) days after written notice to Tenant of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR (or any guarantor of Tenant's ’s obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor"hereunder) shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any federal or state law (or any other law governing a Guarantor)law, or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant (or a Guarantor any such guarantor) as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust bankruptcy law or any similar federal or state law shall be filed in any court and Tenant (or such Guarantor guarantor) shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator trustee or liquidator of Tenant (or any Guarantor guarantor of Tenant’s obligations hereunder) or of all or substantially all of the assets of Tenant (or any such Guarantor or of any Project guarantor) or Tenant's ’s estate therein in the Premises shall be appointed in any proceeding brought by Tenant (or a Guarantorguarantor), or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant (or a Guarantor any such guarantor) and shall not be discharged within ninety (90) days after such appointment, or if Tenant (or a Guarantor any such guarantor) shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor any guarantor of Tenant’s obligations hereunder shall dissolve or otherwise fail to maintain its legal existence; or
(viivi) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 an assignment of this Lease
(viii) if Lease or any Guarantor shall default under interest herein, or subletting of the provisions Premises or any portion thereof, in violation of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of this Lease; or
(vii) if Tenant fails to purchase and maintain the required insurance under Section 3.7 hereof3.3.
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingcontinuing, Landlord shall have the right may, in addition to other rights granted to Landlord hereunder, give Tenant notice of Landlord's termination of the term of ’s intention to terminate this Lease. Upon Lease on a date specified in such notice, which such date shall not be less than thirty (30) days after the giving of such notice. Upon such date this Lease, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminate. Upon such termination, but Tenant shall remain liable as hereinafter providedimmediately surrender and deliver possession of the Premises to Landlord in accordance with Section 8.3. If Tenant does not so surrender and deliver possession of the Premises, Landlord may re-enter and repossess the Premises by any available legal process.
(c) If this Lease is terminated pursuant to Section 5.1(b), Landlord shall have the right to peaceably re-enter and repossess the Premises, but only after instituting legal proceedings as a condition to such re-entry and repossession.
(d) If an Event of Default shall have happened occurred and be continuing, Landlord may terminate Tenant’s right of possession (but not this Lease) and may repossess the Premises by summary proceeding, ejectment or other legal proceeding without thereby releasing Tenant from any liability hereunder and without demand or notice of any kind to Tenant and without terminating this Lease. After repossession of the Premises pursuant hereto or any termination of this Lease, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), right to re-enter and repossess let any of the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action such tenant or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenanttenants, for such term or terms and terms, for such rent, on such conditions and for such uses as Landlord, Landlord in its absolute discretion, reasonable discretion (and subject to the requirements of Section 5.1(f) herein) may determine. Landlord may , and collect and receive any rents payable by reason of such relettingre-letting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any may make such relettingAlterations in connection with such re-letting as it may deem advisable in its reasonable discretion.
(e) No If and to the extent required by applicable Legal Requirements, Landlord shall mitigate damages by making reasonable efforts to re-let the Premises in the event that Tenant’s possession is terminated prior to the expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b)Term. In addition, by operation of law or otherwise, and no if the Premises is re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, let and no reletting Landlord is compensated for any portion of the Premises pursuant to Section 5.1(d) or otherwiseBase Rent, shall relieve Tenant of its liabilities and obligations hereunderAdditional Rent, all of which shall survive such expiration, termination, its actual damages and the reasonable and customary costs of re-entryletting the Premises, repossessionthen Landlord’s damages shall be adjusted accordingly. If any law shall validly limit the amount of any damages provided for herein to an amount which is less than the amount agreed to herein, removal or relettingLandlord shall be entitled to the maximum amount available under such law.
(f) In the event of the any expiration or earlier termination of the term of this Lease Term or re-entry or repossession of the Premises in accordance with the requirements hereof (whether or removal of persons or property therefrom not the Lease is terminated) by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including Tenant through the date of such expiration, termination, re-entry, repossession entry or removalrepossession; and thereafter, Tenant shall, until the end of what would have been the term of this Lease Term in the absence of such expiration, termination, re-entryentry or repossession, repossession or removal and whether or not any Projects shall have been relet, continue to be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damagesLandlord when due: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession entry or removalrepossession, less (ii) the net proceeds, if any, of any reletting re-letting effected for the account of Tenant pursuant to Section 5.1(d)Tenant, after deducting from such proceeds the following (the “Re-Letting Costs”): all necessary and customary expenses of Landlord (applicable to the remaining balance of what would have been Lease Term) actually incurred in connection with such reletting re-letting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' ’ fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). , Tenant shall pay such liquidated and agreed current damages Rent on the dates on which Basic such Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession entry or removalrepossession, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property thereon in accordance with the requirements hereof by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover damages from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the sum of (A) the excess, if any, of (ai) the aggregate of all Basic Base Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlierapplicable, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damagesRent as it becomes due) for what would be the then-unexpired term of this Lease Term in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") Present Value, over (b) the then fair rental value of the Premises (taking into account any proceeds received or to be received from any re-letting of all or a portion of the Premises for any portion of what would be such the then unexpired term of this LeaseTerm), discounted at the Treasury Rate to Present Value for the same period period, plus (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (bB) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest errorRe-Letting Costs. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law. For the purpose of this Section 5.1(g), the “Present Value” of any amount shall mean such amount discounted monthly to present value by using the discount rate equal to the then Treasury Rate. “Treasury Rate” means the yield to maturity of a debt obligation of the United States Treasury having a maturity date closest to but not earlier than the then-existing remaining Lease Term and, if more than one have been issued with such maturity date, then using the debt obligation first issued on or closest to the date of any termination by Landlord under this Lease.
Appears in 1 contract
Conditional Limitations; Default Provisions. SECTION19.1 If any one or more of the following events ("EVENTS OF ----------- --------- DEFAULT") shall occur: --
(a) Any if default shall be made in the due and punctual payment of the following occurrences any Net Rent or acts shall constitute an "Event of Default" additional rent payable under this Lease:
(i) if Tenant Lease or any part thereof, when and as the same shall (1) fail to pay any Basic Rent, Additional Rent or other sum as become due and when required to be paid by Tenant hereunderpayable, and such failure default shall continue for two a period of ten (2) Business Days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, or (2) fail to observe or perform any other provision hereof and such failure shall continue for thirty (3010) days after written notice from Landlord to Tenant specifying the items in default, provided that upon the second (2nd) default in any twelve (12) month period, no notice shall be required; or (b) if default shall be made by Tenant in the performance or compliance with any of such failure the agreements, terms, covenants or conditions in this Lease (providedother than those referred to in Section 19.01(a)) for a period of twenty (20) business days ---------------- after notice from Landlord to Tenant specifying the items in default, that or in the case of any such failure a default or a contingency which is capable of being cured but cannot be cured by the payment of money and cannot with due diligence be cured within such 30-said twenty (20) business day period, if Tenant shall fails to proceed within said twenty (20) business day period to commence promptly to cure the same and thereafter to prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure)default with due diligence; or
or (iic) if any representation or warranty subject to the provisions of Tenant or Guarantor set forth herein or in any noticeSection 19.02 hereof, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file ------------- a voluntary petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent insolvent, or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a file any petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to seeking any federal or state bankruptcyreorganization, arrangement, composition, readjustment, liquidation, voluntary administration, administration, receivership, moratorium dissolution or trust law similar relief under the present or any similar future federal bankruptcy act or any other present or future federal, state law or other bankruptcy or insolvency statute or law, or shall be filed in any court and Tenant seek or such Guarantor shall consent to or acquiesce in the filing thereof appointment of any bankruptcy or insolvency trustee, receiver or liquidator of Tenant or of all or any substantial part of its properties or of the Demised Premises; or (d) subject to the provisions of Section 19.02 hereof, if a proceeding is ------------- commenced against Tenant seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act or any other present or future federal, state or other bankruptcy or insolvency statute or law and such petition or answer proceeding shall not be discharged have been dismissed within ninety (90) days after notice from Landlord to Tenant of an intention to terminate this Lease for failure to remove the condition in question or denied if, within ninety (90) days after the filing thereof; or
(iv) if a receiver, appointment of any trustee, administrator receiver or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor its properties or of any Project the Demised Premises, such appointment shall not have been vacated or Tenant's estate therein shall be appointed in any proceeding brought by Tenant stayed on appeal or a Guarantorotherwise, or if any such receiverif, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after the expiration of any such appointmentstay, or if Tenant or a Guarantor such appointment shall consent to or acquiesce in such appointment; or
(v) if any Project shall not have been left unoccupied and unattended for a period of thirty vacated, within ninety (3090) days after notice (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by given not before the expiration of said ninety (90) days period) from Landlord to Tenant of an intention to terminate this Lease for failure to remove the condition in accordance with the terms question; Then and conditions of Section 3.7 hereof.
(b) If an in any such event Landlord at any time thereafter may give written notice to Tenant specifying such Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's termination of the term of this Lease. Upon the giving of such notice, the term of stating that this Lease and the estate Term hereby granted demised shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for specified in such notice, which shall be at least ten (10) days after the giving of such notice (provided that with respect to an Event of Default described in Section ------- 19.1(c) or (d), no such notice need be given), and upon the date specified in ------ --- such notice (or, if no notice is required, upon the expiration of the term of time - period set forth in Section 19.1(c) or (d)) this Lease, Lease and the Term hereby - demised and all rights of Tenant hereunder under this Lease, including any renewal - privileges whether or not exercised, shall expire and terminate, but and Tenant - shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), to re. -enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Samples: Net Lease (Orbit International Corp)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of Default" Default under this Lease:
(i) if Tenant If Lessee shall (1) fail to pay any Basic Rent, Additional Rent additional rent or other sum as and when required to be paid by Tenant hereunder, Lessee hereunder and such failure shall continue continues for two (2) Business Days a period of 5 days after delivery of written notice from Landlord Lessor to Lessee specifying such failure to pay (or Lenderprovided, however, no such notice shall be required more than once in any 12 month period) to Tenant that such payment was not received when due, or (2) fail to observe or perform any other provision hereof and such nonmonetary failure shall continue for thirty (30) 30 days after written notice to Tenant Lessee of such failure (providedprovided that, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period not to exceed 180 days as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or;
(ii) if If any representation or warranty of Tenant or Guarantor Lessee set forth herein or in any noticecertificate provided by Lessee pursuant to this Lease, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material adverse respect as of the time when the same shall have been made in a way adverse to Lessor and Lessor shall suffer a loss or detriment as a result thereof, including, without limitation, the taking of any action (including, without limitation, the demise of the Premises to Lessee herein) in reliance upon such representation or warranty and, in each case, the facts shall not be conformed to the representation and warranty as soon as practicable in the circumstances (but in no event to exceed 30 days) after written notice to Lessee from Lessor of such inaccuracy and Lessor restored to the position it would have enjoyed had such representation or warranty been accurate at the time it was made; or;
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease If Lessee (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor"defined herein) shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become duecreditors, or if a petition or answer proposing the adjudication of Tenant or a Guarantor Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust bankruptcy law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor Lessee shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) 90 days after the filing thereof; or;
(iv) if If a receiver, trusteetrustee or conservator of Lessee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor Lessee, or of any Project the Premises or TenantLessee's or estate therein shall be appointed in any proceeding brought by Tenant or a GuarantorLessee, or if any such receiver, trustee or liquidator conservator shall be appointed in any proceeding brought against Tenant or a Guarantor Lessee and shall not be discharged within ninety (90) 90 days after such appointment, or if Tenant or a Guarantor Lessee shall consent to or acquiesce in such appointment; or;
(v) if any Project If the Premises shall have been left unoccupied abandoned and unattended not maintained or secured in the manner required hereunder for a period of thirty (30) 60 consecutive days (other than for renovation or reconstruction or during periods after written notice of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail such from Lessor to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereofLessee.
(b) If an Event of Default shall have occurred happened and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingcontinuing, Landlord Lessor shall have the right to give Tenant Lessee notice of LandlordLessor's termination of the term of this LeaseLease Term. Upon the giving of such notice, the term of this Lease Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this LeaseLease Term, and all rights of Tenant Lessee hereunder shall expire and terminate, but Tenant Lessee shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord Lessor shall have the immediate right, whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(bSubsection 7.01(b), to re-enter reenter and repossess the Premises and the right to remove all persons and property (subject to Section 3.02) therefrom by summary proceedings, ejectment, ejectment or any other legal action or in any lawful manner Landlord Lessor determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord Lessor shall be under no liability by reason of any such re-entryreentry, repossession or removal. No such re-entryreentry, repossession or removal shall be construed as an election by Landlord Lessor to terminate this the Lease Term unless a notice of such termination is given to Tenant Lessee pursuant to Section 5.1(b)Subsection 7.01(b) or unless such termination is decreed by a court.
(d) At any time or from time to time after a re-entryreentry, repossession or removal pursuant to Section 5.1(cSubsection 7.01(c), whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(bSubsection 7.01(b), Landlord Lessor may (but shall be under no obligation to) relet any or all of the Projects Premises for the account of TenantLessee, in the name of Tenant Lessee or Landlord Lessor or otherwise, without notice to TenantLessee, for such term or terms and on such conditions and for such uses as LandlordLessor, in its absolute discretion, may determine. Landlord Lessor may collect any rents payable by reason of such reletting. Landlord Lessor shall not be liable for any failure to relet any of the Projects Premises or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease Term pursuant to Section 5.1(bSubsection 7.01(b), by operation of law or otherwise, and no re-entryreentry, repossession or removal pursuant to Section 5.1(cSubsection 7.01(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(dSubsection 7.01(d) or otherwise, shall relieve Tenant Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entryreentry, repossession, removal or reletting.
(f) In the event of the any expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant Lessee shall pay to Landlord Lessor all Basic Rent, Additional Rent additional rent and other sums required to be paid by TenantLessee, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entryreentry, repossession or removal; and , and, thereafter, Tenant Lessee shall, until the end of what would have been the term of this Lease Term in the absence of such expiration, termination, re-entryreentry, repossession or removal and whether or not any Projects the Premises shall have been relet, be liable to Landlord Lessor for, and shall pay to LandlordLessor, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent all additional rent and other sums which would be payable under this Lease by Tenant Lessee in the absence of any such expiration, termination, re-entryreentry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds together with all expenses of Landlord Lessor in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including including, without limitation, fees and expenses of appellate proceedings), employees' employee's expenses, alteration costs and expenses of necessary preparation for such reletting), less (ii) the net proceeds, if any, of any reletting effected for the account of Lessee pursuant to Subsection 7.01(d). Tenant Lessee shall pay such liquidated and agreed current damages on the dates on which Basic Rent rent would be payable under this Lease in the absence of such expiration, termination, re-entryreentry, repossession or removal, and Landlord Lessor shall be entitled to recover the same from Tenant Lessee on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property thereon therefrom by reason of the occurrence of an Event of Default, whether or not Landlord Lessor shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(fSubsection 7.01(f), Landlord Lessor shall be entitled to recover from TenantLessee, and Tenant Lessee shall pay to Landlord Lessor on demand, as and for liquidated and agreed final damages for TenantLessee's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent additional rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the to date to which Tenant Lessee shall have satisfied in full its obligations under Section 5.1(fSubsection 7.01(f) to pay liquidated and agreed current damages) for what would be the then-then unexpired term of this Lease Term in the absence of such expiration, termination, re-entryreentry, repossession or removal, discounted at a the rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") 5% per annum, over (b) the then fair rental value of the Premises for what would be such then unexpired term of this LeasePremises, discounted at the Treasury Rate rate of 5% per annum for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest errorperiod. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord Lessor shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Samples: Lease Agreement (Ceres Group Inc)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of Default" Default under this Lease:
(i) if Tenant If Lessee shall (1) fail to pay any Basic Rent, Additional Rent Rent, additional rent or other monetary sum as and when required to be paid by Tenant hereunder, due and such failure shall continue continues for two at least ten (210) Business Days days after delivery Lessee’s receipt of written notice from Landlord Lessor of such failure; provided, however, Lessor shall not be required to provide written notice of any failure to pay Basic Rent in a timely manner more than once in any twelve (or Lender12) to Tenant that such payment was not received when due, month period before same becomes an immediate Event of Default; or (2) fail to observe or perform any other provision hereof and such non-monetary failure shall continue for thirty (30) days after Lessee’s receipt of written notice to Tenant from Lessor of such failure (providedprovided that, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with prompt diligence and reasonable efforts be cured within such thirty (30-) day period, if Tenant Lessee shall commence promptly to cure the same failure and thereafter prosecute the curing thereof with diligenceprompt diligence and reasonable efforts, the time within which such failure may be cured before same shall be an Event of Default shall be extended for such period as is reasonably necessary to complete the curing thereof with diligenceprompt diligence and reasonable efforts, but in no event not to exceed one hundred twenty eighty (120180) days from the date of such failuredays); or;
(ii) if If any representation or warranty of Tenant or Guarantor Lessee set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease (or of Seller under the Sale Agreement) shall prove to be incorrect in any material adverse respect as of the time when made, in a way materially adverse to Lessor and Lessor shall suffer a material loss or detriment as a result thereof, including, without limitation, the same taking of any action (including, without limitation, the demise of the Properties to Lessee herein) in reliance upon such representation or warranty and, in each case, the facts shall not be conformed to the representation and warranty as soon as practicable in the circumstances (but in no event to exceed thirty (30) days subject to reasonable extension provided that Lessee is prosecuting the cure with prompt diligence and reasonable efforts) and Lessor restored to the position it would have enjoyed had such representation or warranty been accurate at the time it was made; or;
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") If Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any federal or state law (or any other law governing a Guarantor), Applicable Law or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become duecreditors, or if a petition or answer proposing the adjudication of Tenant or a Guarantor Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law Applicable Law shall be filed in any court and Tenant or such Guarantor Lessee shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) 90 days after the filing thereof; or;
(iv) if If a receiver, trustee, administrator trustee or liquidator conservator of Tenant or any Guarantor Lessee or of all or substantially all of the assets of Tenant Lessee or such Guarantor any of the Properties or of any Project Lessee’s or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a GuarantorLessee, or if any such receiver, trustee or liquidator conservator shall be appointed in any proceeding brought against Tenant or a Guarantor Lessee and shall not be discharged within ninety (90) 90 days after such appointment, or if Tenant or a Guarantor Lessee shall consent to or acquiesce in such appointment; or;
(v) if If Lessee transfers the operational control or management of any Project shall have been left unoccupied and unattended for a period Property without the prior written consent of thirty (30) days (other than for renovation Lessor, or reconstruction or during periods there is an Assignment without the prior written consent of seasonal closure); orLessor, except as expressly permitted in this Lease;
(vi) if Tenant or If the Average Daily Occupancy for the Properties, on a Guarantor collective basis, for any three (3) consecutive calendar months during the Term is less than ninety percent (90%) of the actual occupancy at the Properties on October 18, 2006 (as set forth on Exhibit F). “Average Daily Occupancy” shall dissolve or otherwise fail mean the average daily occupancy as determined on a monthly basis, with daily occupancy meaning a percentage equal to maintain its legal existencethe number of residents residing at the Properties divided by the number of units at the Properties; or
provided, however, Lessee shall be permitted to increase the then amount of the Lease Deposit by fifty percent (vii50%) if Tenant shall in order to cure any default under Sections 4.1(athis Section 7.01(a)(vi), 4.1(bunless the Average Daily Occupancy requirement set forth herein remains unsatisfied for six (6) or 10.3 of this Lease
(viii) if any Guarantor consecutive calendar months during the Term, in which event same shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereof.
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's termination of the term of this Lease. Upon the giving of Lessor’s election notwithstanding such notice, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenant, increase in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determineLease Deposit. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of that Lessee increases the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease Deposit as set forth in the absence of preceding sentence and subsequently satisfies the Average Daily Occupancy requirement set forth herein for three (3) consecutive calendar months, such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord increased amount shall be entitled returned to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal Lessee except to the excess, if any, extent same has been applied to cure any unsatisfied obligation of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.Lessee hereunder;
Appears in 1 contract
Samples: Master Lease Agreement (NorthStar Healthcare Investors, Inc.)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an Event of Default ("Event of Default" ") under this Lease:
(i) if Tenant shall (1) fail to pay any Basic Rent, Additional Rent additional rent or other sum as and when required to be paid by Tenant hereunder, and such failure ; or
(ii) if Tenant shall continue for two (2) Business Days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, or (2) fail to observe or perform any other provision hereof and such failure shall continue unremedied for thirty (30) 30 days after the earlier of (1) written notice thereof from Landlord or, the Note Purchaser or any holder of the Notes to Tenant Tenant, (2) the first date on which an officer of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same have actual knowledge that a default has occurred and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failurecontinuing under this Section 15(a)(ii); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR any of its subsidiaries has entered against it or any guarantor of Tenant's obligations on its behalf an order for relief under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in the Federal bankruptcy or for reorganization or for an arrangementlaws, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor)applicable Federal or state bankruptcy, insolvency or other similar law, or shall be adjudicated a bankrupt becomes insolvent, or become insolvent or shall make makes an assignment for the benefit of creditors creditors, or shall admit in writing its inability fails to generally pay its debts generally as they such debts become due, or if a petition or answer proposing the adjudication of Tenant or any such subsidiary applies for or consents to the appointment of a Guarantor as a bankrupt trustee or receiver or for the major part of its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereofproperty; or
(iv) if a custodian (including without limitation a trustee or receiver, trustee, administrator or liquidator of ) is appointed for Tenant or any Guarantor of its subsidiaries or of all or substantially all for the major part of the assets property of Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor either and shall is not be discharged within ninety (90) 90 days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) bankruptcy or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of its subsidiaries and, if instituted against Tenant or any Project shall have been left unoccupied and unattended for a period of thirty (30) such subsidiary are consented to or are not dismissed within 90 days (other than for renovation or reconstruction or during periods of seasonal closure)after such institution; or
(vi) if Tenant or the Premises have been left abandoned for a Guarantor shall dissolve or otherwise fail to maintain its legal existenceperiod of 30 days; or
(vii) if Tenant shall default under Sections 4.1(a)fail to observe or perform any provision of the Assignment of Lease dated as of May 12, 4.1(b1994 (the "Assignment") or 10.3 of this Leaseamong Landlord, Tenant and the Note Purchaser relating to the Premises; or
(viii) if any Guarantor shall default under representation or warranty made by Tenant herein or in the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained Assignment or made by Tenant in accordance with any statement or certificate furnished by Tenant pursuant to the terms and conditions Note Agreement proves untrue in any material respect as of Section 3.7 hereofthe date of the issuance or making thereof.
(b) If This Lease and the term and estate hereby granted are subject to the limitation that whenever an Event of Default shall have occurred happened and be continuing Landlord shall have the right at its election at any time thereafter to exercise any one or more or all, and in any order, of the remedies hereinafter set forth, it being expressly understood that no remedy herein conferred is intended to be entitled exclusive of any other remedies but each and every remedy shall be in addition to all remedies available every other remedy given herein or now or hereafter existing at law or in equity. Without limiting equity or by statute:
(i) Landlord may take all steps to protect and enforce the foregoingrights of Landlord or obligations of Tenant hereunder, whether by action, suit or proceeding at law or in equity (for the specific performance of any covenant, condition or agreement contained in this Lease, or in aid of the execution of any power herein granted or for any foreclosure, or for the enforcement of any other appropriate legal or equitable remedy) or otherwise as Landlord shall have deem most advisable to protect and enforce any of its rights or the right obligations of Tenant hereunder;
(ii) Landlord may terminate this Lease by giving a written termination notice to give Tenant specifying a date not less than 15 days after the date of such notice of Landlord's termination of on which the term of this Lease. Upon the giving of Lease shall terminate and on such notice, date the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, by limitation and all rights of Tenant hereunder under this Lease shall expire and terminate, but Tenant shall remain liable as hereinafter provided.cease on the Termination Date so specified;
(ciii) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate rightLandlord, whether or not the term of this Lease shall have been terminated pursuant to clause (ii) of this Section 5.1(b15(b), shall have the right to terminate Tenant's right to possession under this Lease and to re-enter and take possession of the Premises or any part thereof by giving a written notice to Tenant to quit and surrender possession on a date not less than 15 days after the date of such notice whereupon the right of Tenant to the possession of the Premises shall cease and terminate on such date, and Landlord shall have the immediate and continuing right then and at any time and from time to time thereafter without further notice, to re-enter upon and repossess take possession of the Premises or any part thereof with or without legal proceedings (summary or otherwise) and the right to remove all persons Persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdictionmay elect to do. Should Landlord shall be under no liability by reason of any such elect to re-entry, repossession enter as herein provided or removal. No such re-entry, repossession or removal shall be construed as an election by should Landlord to terminate this Lease unless a notice of such termination is given to Tenant take possession pursuant to Section 5.1(b).
(d) At any time legal proceedings or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether any notice provided for by law or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to clause (ii) of this Section 5.1(b)15(b) or termination of Tenant's right to possession pursuant to clause (iii) of this Section 15(b) or otherwise as permitted by law, Tenant shall peaceably quit and surrender the Premises to Landlord. In any such event, neither Tenant nor any Person claiming through or under Tenant, by operation virtue of law any statute or otherwiseof an order of any court, and no re-entry, repossession shall be entitled to possession or removal pursuant to Section 5.1(c) or otherwise, and no reletting remain in possession of the Premises, or any part thereof, but shall forthwith quit and surrender the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.Landlord;
(fiv) In the event of the expiration or earlier any termination of the term of this Lease or re-entry pursuant to clause (ii) of this Section 15(b) or repossession pursuant to clause (iii) of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Defaultthis Section 15(b), Tenant shall will pay to Landlord Basic Rent and all Basic Rent, Additional Rent additional rent and other sums required to be paid by Tenant, in each case together with interest thereon at Tenant up to the Rate from the due date thereof to and including the date time of such expirationtermination or repossession, termination, re-entry, and from and after such termination or repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expirationtermination or repossession, termination, re-entry, repossession or removal and whether or not any Projects Tenant shall have been relet, be liable to Landlord for, and shall pay to LandlordLandlord the sums of money (herein called "Current Damages") which would have been payable by Tenant, as liquidated Basic Rent and agreed current damages: (i) all Basic Rent, Additional Rent additional rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession termination or removalrepossession, less (ii) the net proceeds, if any, actually received by Landlord as a result of any such repossession and subsequent reletting effected for or other disposition of the account of Tenant pursuant to Section 5.1(d)Premises, after deducting from such proceeds all expenses proceeds, the expenses, costs and payments of every kind of Landlord which in accordance with the terms of this Lease would have been borne by Tenant and all of Landlord's expenses in connection with such realization of proceeds, including without limiting the generality of the foregoing all unpaid expenses incurred in obtaining possession, and in altering, repairing and putting the Premises in good order and condition and in reletting (includingthe Premises or any part thereof including reasonable fees of attorneys, without limitationarchitects, all repossession costs, brokerage commissions, and other experts and any other reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' legitimate expenses, alteration costs and expenses of preparation for such reletting). Tenant shall will pay such liquidated other experts and agreed current damages any other reasonable and legitimate expenses. Tenant will pay such Current Damages monthly on the dates days on which Basic Rent would be have been payable under this Lease in the absence of such expiration, termination, re-entry, repossession termination or removalrepossession, and Landlord shall be entitled to recover the same from Tenant on each such date.day. Tenant hereby agrees to be and remain liable for all sums otherwise payable by Tenant under this Lease including, but not limited to, the expenses of Landlord aforesaid, as well as for any deficiency aforesaid, and Landlord shall have the right from time to time to begin and maintain successive actions or other legal proceedings against Tenant for the recovery of such deficiency or damages or for a sum equal to any installments of Basic Rent or additional rent and any other sums payable hereunder and to recover the same upon the liability of Tenant herein provided, which liability it is expressly covenanted shall survive the issuance of any action to secure possession of the Premises. Nothing herein contained shall be deemed to require Landlord to wait to begin any such action or other legal proceedings until the date when this Lease would have expired by limitation had there been no such Event of Default;
(gv) At any time after any such expiration or earlier termination of the term of this Lease pursuant to clause (ii) of this Section 15(b), or re-entry or repossession termination of the Premises or removal possession pursuant to clause (iii) of persons or property thereon by reason of the occurrence of an Event of Defaultthis Section 15(b), whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f)Current Damages as aforesaid, Landlord shall be entitled to recover from Tenant, and Tenant shall will pay to Landlord on Landlord, at Landlord's option and upon demand, as and for liquidated and agreed final damages (herein called "Final Damages") for Tenant's default and in lieu of all liquidated and agreed current damages Current Damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages)demand, an amount equal to the sum of (A) the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other the sums which would be payable under this Lease, in each case Lease from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under clause (iv) of this Section 5.1(f15(b) to pay liquidated and agreed current damagesCurrent Damages) for what would be the then-then unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession expiration or removalrepossession, discounted at the rate of 7.8% per annum on the basis of a rate equal to 360-day year of twelve consecutive 30-day months, over the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises at the time of such termination for what would be the balance of such then unexpired term of this Leaseterm, discounted at the Treasury Rate for same rate and in the same period manner as above stated, plus (such excess being hereinafter referred B) to as "Liquidated Damages"). For purposes of determining value the extent legally enforceable and in addition to all other amounts payable by tenant pursuant to this Section 5.1(g15(b), as damages suffered by the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member Landlord as the result of the American Institute occurrence of Appraisersan Event of Default hereunder for the loss of a bargain and not as a penalty, with copies an amount (the "Additional Final Damages") equal to the amount which the Landlord would be obligated to pay the premium, if any, specified in the Note Agreement as defined therein. Nothing herein contained shall, however, limit or prejudice the right of Landlord, in any bankruptcy, reorganization or insolvency proceedings, to prove for and obtain as liquidated damages by reason of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the termination, an amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such damages are to be proved, whether or not such amount allowable under shall be greater than, equal to, or less than such lawFinal Damages and/or Additional Final Damages.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event event of Default" default under this Lease:
; (i) if Tenant shall failure to (1) fail to make any Rent Payment or pay any Basic Deferred Rent, Additional Rent additional rent or other sum as and when required to be paid by Tenant hereunder, Lessee hereunder and such failure shall continue for two (2) Business Days 8 days after delivery notice to Lessee of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, failure or (2) fail to observe or perform any other provision hereof and such failure shall continue for thirty (30) 28 days after written notice to Tenant Lessee of such failure (provided, that in the case of any such failure default which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 3028-day period, if Tenant Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure default may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or
or (ii) if any representation or warranty of Tenant or Guarantor Lessee set forth herein or in any notice, certificate, demand, demand or request or other document or instrument delivered to Landlord in connection with this Lease pursuant hereto shall prove to be incorrect in any material and adverse respect as of the time when the same shall have been made, and the facts shall not be conformed to such representation or warranty promptly after written notice to Lessee of such inaccuracy and Lessor or Master Lessor shall not be restored promptly after such notice to the position it would have enjoyed had any loss or detriment suffered by it as a result of such inaccuracy not occurred; or
or (iii) if Tenant Lessee shall become a debtor in a case filed under Chapter 7 of the Bankruptcy Code, or ACCOR in a case filed under Chapter 11 of the Bankruptcy Code, or any guarantor in a case filed under Chapter 7 of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred the Bankruptcy Code which is transferred to herein as a "Guarantor") Chapter 11; or if Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any federal or state bankruptcy law (or any other law governing a Guarantor)similar federal or Mate law, or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust bankruptcy law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor Lessee shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) 120 days after the filing thereof; or
or (iv) if a receiver, trustee, administrator trustee or liquidator of Tenant or any Guarantor Lessee or of all or substantially all of the assets of Tenant or such Guarantor Lessee or of any Project the Premises or Tenant's Lessee’s estate therein shall be appointed in any proceeding brought by Tenant or a GuarantorLessee, as the case may be, or if any such receiver, trustee or liquidator shall be appointed in any proceeding proceeding. brought against Tenant or a Guarantor Lessee and shall not be discharged within ninety (90) 120 days after such appointment, or if Tenant or a Guarantor Lessee shall consent to or acquiesce in such appointment; or
or (v) if any Project the Premises shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation 30 days; or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or as a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall result of a default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default by Lessee hereunder the lessor under the provisions Ground Lease shall have the right to terminate or to re-enter and take possession of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereofpremises leased thereunder.
(b) If an Event event of Default default shall have occurred happened and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingcontinuing, Landlord Lessor shall have the right to give Tenant Lessee notice of Landlord's Lessor’s termination of the term of this Lease. Upon the giving of such notice, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant Lessee hereunder shall expire and terminate, but Tenant Lessee shall remain liable as hereinafter provided.
(c) If an Event event of Default default shall have happened and be continuing, Landlord Lessor shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(bparagraph 18(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord Lessor determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdictiondesirable and the right to remove all persons and property therefrom. Landlord Lessor shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, entry or repossession or removal of the Premises shall be construed as an election by Landlord Lessor to terminate the term of this Lease unless a notice of such termination is given to Tenant Lessee pursuant to Section 5.1(bparagraph 18(b), or unless such termination is decreed by a court or other governmental tribunal of competent jurisdiction.
(d) At any time or from time to time after a the re-entry, entry or repossession or removal of the Premises pursuant to Section 5.1(cparagraph 18(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(bparagraph 18(b), Landlord . Lessor may (but shall be under no obligation to) relet any or all of the Projects Premises for the account of TenantLessee, in the name of Tenant Lessee or Landlord Lessor or otherwise, without notice to TenantLessee, for such term or terms and on such conditions and for such uses as LandlordLessor, in its absolute discretion, may determine. Landlord Lessor may collect and receive any rents payable by reason of such reletting. Landlord Lessor shall not be liable for any failure to relet any of the Projects Premises or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(bparagraph 18(b), by operation of law or otherwise, and no re-entry, entry or repossession or removal of the Premises pursuant to Section 5.1(cparagraph 18(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(dparagraph 18(d) or otherwise, shall relieve Tenant Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal repossession or reletting.
(f) In the event of the any expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event any event of Defaultdefault, Tenant shall Lessee will pay to Landlord Lessor all Basic Rent, Additional Deferred Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof all Rent Payments to and including the date of such expiration, termination, re-entryentry or repossession, repossession and all additional rent and other sums required to be paid by Lessee to and including the date of such expiration, termination, re-entry or removalrepossession; and and, thereafter, Tenant Lessee shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entryentry or repossession, repossession or removal and whether or not any Projects the Premises shall have been reletre-let, be liable to Landlord Lessor for, and shall pay to LandlordLessor, as liquidated and agreed current damages: (i) all Basic RentRent Payments (increased by the amount of Deferred Rent allocable to each payment period through the 15th year of the Primary Term of this Lease and reduced after the 15th year of the Primary Term of this Lease by that portion of such Rent Payment which constitutes Deferred Rent actually paid pursuant to the first sentence of this paragraph 18 (f)), Additional Rent additional rent and other sums which would be payable under this Lease by Tenant Lessee in the absence of any such expiration, termination, re-entry, repossession entry or removalrepossession, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant Lessee pursuant to Section 5.1(dparagraph 18(d), after deducting from such proceeds all expenses of Landlord Lessor and Master Lessor in connection with such reletting (including, without limitation, but not limited to all repossession re-possession costs, brokerage commissions, reasonable attorneys' attorneys’ fees and expenses (including fees and expenses of appellate proceedings)expenses, employees' ’ expenses, alteration costs and expenses of preparation for such reletting). Tenant shall Les-see will pay such liquidated and agreed current damages on the dates days on which Basic Rent Payments would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession entry or removalrepossession, and Landlord Lessor shall be entitled to recover the same from Tenant Lessee on each such dateday.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event event of Defaultdefault, whether or not Landlord Lessor shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(fparagraph 18(f), Landlord Lessor shall be entitled to recover from TenantLessee, and Tenant shall Lessee will pay to Landlord Lessor on demand, as and for liquidated and agreed final damages for Tenant's Lessee’s default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic RentRent Payments under this Lease (less any Deferred Rent actually paid pursuant to paragraph 18(f)), Additional Rent plus additional rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant Lessee shall have satisfied in full its obligations under Section 5.1(fparagraph 18(f) to pay liquidated and agreed current damages) for what would be the then-then unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession entry or removalrepossession, discounted at a the rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") 5% per annum over (b) the then fair rental value of the Premises for what would be such then unexpired term of this LeasePremises, discounted at the Treasury Rate rate of 5% per annum for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest errorperiod. If any law shall limit the amount of such liquidated final damages to less than the amount above agreed upon, Landlord Lessor shall be entitled to the maximum amount allowable under such law.
(1) In the event that Lessee shall become a debtor under Chapter 7 of the Bankruptcy Code and Lessee’s trustee or Lessee shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may be made only if the provisions of sub-paragraphs (2) (i) through (iv) and subparagraph (3) (i) of this paragraph 18(h) are satisfied as if the election to assume were made in a case filed under Chapter 11 of the Bankruptcy Code. If Lessee or Lessee’s trustee shall fail to elect to assume this Lease within 120 days after the filing of such petition or such additional time as provided by the court within such 120-day period, this Lease shall be deemed to have been rejected. Immediately upon such failure or upon a rejection of this Lease by Lessee or Lessee’s trustee, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee’s trustee and this Lease, upon the election of Lessor, shall terminate, but Lessor’s right to receive damages or liquidated damages pursuant to this paragraph 18 in any such proceeding shall survive.
(2) In the event that the Lessee shall become a debtor in a case filed under Chapter 11 of the Bankruptcy Code, or in a case filed under Chapter 7 of the Bankruptcy Code which is transferred to Chapter 11, Lessee’s trustee or Lessee, as debtor-in-possession, must elect to assume this Lease within 120 days from the date of filing of the petition under Chapter 11 or the transfer thereto, or Lessee’s trustee or Lessee, as debtor-in-possession, shall be deemed to have rejected this Lease. In the event that Lessee, Lessee’s trustee or Lessee, as debtor-in-possession, has failed to perform all of Lessee’s obligations under this Lease within the time periods (excluding grace periods) required for such performance, no election by Lessee’s trustee or Lessee, as debtor-in-possession, to assume this Lease, whether under Chapter 7 or Chapter 11, shall be permitted or effective unless each of the following conditions has been satisfied:
(i) Lessee’s trustee or Lessee, as debtor-in-possession, has cured all defaults, under the Lease, or has provided Lessor with Assurance (as defined below) that it will cure, all defaults susceptible of being cured by the payment of money within 10 days from the date of such assumption and that it will cure all other defaults under this Lease which are susceptible of being cured by the performance of any act promptly and with diligence and continuity after the date of such assumption.
(ii) Lessee’s trustee or Lessee, as debtor-in-possession, has compensated, or has provided Lessor with Assurance that within 10 days from the date of such assumption Lessor will be compensated for any actual pecuniary loss incurred by Lessor arising from the default of Lessee, Lessee’s trustee or Lessee, as debtor-in-possession.
(iii) Lessee’s trustee or Lessee, as debtor-in-possession, has provided Lessor with Assurance of the future performance of each of the obligations under this Lease of Lessee.
(iv) Such assumption will not breach or cause a default under any provision of any other lease, Mortgage, financing agreement or other agreement by which Lessor is bound relating to the Premises or any Legal Requirements.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of Default" Default under this Lease:
(i) if Tenant If Lessee shall (1) fail to pay any Basic Rent, Additional Rent additional rent or other sum as and when required to be paid by Tenant hereunder, and such failure shall continue for two (2) Business Days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, Lessee hereunder or (2) fail to observe or perform any other provision hereof and such nonmonetary failure shall continue for thirty (30) 30 days after written notice to Tenant Lessee of such failure (providedprovided that, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period not to exceed 180 days as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or;
(ii) if If any representation or warranty of Tenant or Guarantor Lessee set forth herein or in any noticecertificate provided by Lessee pursuant to this Lease, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material adverse respect as of the time when the same shall have been made in a way adverse to Lessor and Lessor shall suffer a loss or detriment as a result thereof, including, without limitation, the taking of any action (including, without limitation, the demise of the Premises to Lessee herein) in reliance upon such representation or warranty and, in each case, the facts shall not be conformed to the representation and warranty as soon as practicable in the circumstances (but in no event to exceed 30 days) after written notice to Lessee from Lessor of such inaccuracy and Lessor restored to the position it would have enjoyed had such representation or warranty been accurate at the time it was made; or;
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") If Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become duecreditors, or if a petition or answer proposing the adjudication of Tenant or a Guarantor Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust bankruptcy law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor Lessee shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) 90 days after the filing thereof; or;
(iv) if If a receiver, trusteetrustee or conservator of Lessee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor Lessee, or of any Project the Premises or TenantLessee's estate therein shall be appointed in any proceeding brought by Tenant or a GuarantorLessee, or if any such receiver, trustee or liquidator conservator shall be appointed in any proceeding brought against Tenant or a Guarantor Lessee and shall not be discharged within ninety (90) 90 days after such appointment, or if Tenant or a Guarantor Lessee shall consent to or acquiesce in such appointment; or;
(v) if any Project If the Premises shall have been left unoccupied abandoned and unattended not maintained or secured in the manner required hereunder for a period of thirty (30) 30 consecutive days (other than for renovation or reconstruction or during periods after written notice of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail such from Lessor to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereofLessee.
(b) If an Event of Default shall have occurred happened and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingcontinuing, Landlord Lessor shall have the right to give Tenant Lessee notice of LandlordLessor's termination of the term of this LeaseLease Term. Upon the giving of such notice, the term of this Lease Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this LeaseLease Term, and all rights of Tenant Lessee hereunder shall expire and terminate, but Tenant Lessee shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord Lessor shall have the immediate right, whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(bsubsection 7.01(b), to re-enter reenter and repossess the Premises and the right to remove all persons and property (subject to Section 3.02) therefrom by summary proceedings, ejectment, ejectment or any other legal action or in any lawful manner Landlord Lessor determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord Lessor shall be under no liability by reason of any such re-entryreentry, repossession or removal. No such re-entryreentry, repossession or removal shall be construed as an election by Landlord Lessor to terminate this the Lease Term unless a notice of such termination is given to Tenant Lessee pursuant to Section 5.1(b)subsection 7.01(b) or unless such termination is decreed by a court.
(d) At any time or from time to time after a re-entryreentry, repossession or removal pursuant to Section 5.1(csubsection 7.01(c), whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(b), Landlord subsection 7.01(b) Lessor may (but shall be under no obligation to) ), relet any or all of the Projects Premises for the account of TenantLessee, in the name of Tenant Lessee or Landlord Lessor or otherwise, without notice to TenantLessee, for such term or terms and on such conditions and for such uses as LandlordLessor, in its absolute discretion, may determine. Landlord Lessor may collect any rents payable by reason of such reletting. Landlord Lessor shall not be liable for any failure to relet any of the Projects Premises or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease Term pursuant to Section 5.1(bsubsection 7.01(b), by operation of law or otherwise, and no re-entryreentry, repossession or removal pursuant to Section 5.1(csubsection 7.01(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(dsubsection 7.01(d) or otherwise, shall relieve Tenant Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entryreentry, repossession, removal or reletting.
(f) In the event of the any expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant Lessee shall pay to Landlord Lessor all Basic Rent, Additional Rent additional rent and other sums required to be paid by TenantLessee, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entryreentry, repossession or removal; and , and, thereafter, Tenant Lessee shall, until the end of what would have been the term of this Lease Term in the absence of such expiration, termination, re-entryreentry, repossession or removal and whether or not any Projects the Premises shall have been relet, be liable to Landlord Lessor for, and shall pay to LandlordLessor, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent all additional rent and other sums which would be payable under this Lease by Tenant Lessee in the absence of any such expiration, termination, re-entryreentry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds together with all expenses of Landlord Lessor in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including including, without limitation, fees and expenses of appellate proceedings), employees' employee's expenses, alteration costs and expenses of necessary preparation for such reletting), less (ii) the net proceeds, if any, of any reletting effected for the account of Lessee pursuant to subsection 7.01(d). Tenant Lessee shall pay such liquidated and agreed current damages on the dates on which Basic Rent rent would be payable under this Lease in the absence of such expiration, termination, re-entryreentry, repossession or removal, and Landlord Lessor shall be entitled to recover the same from Tenant Lessee on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property thereon therefrom by reason of the occurrence of an Event of Default, whether or not Landlord Lessor shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(fsubsection 7.01(f), Landlord Lessor shall be entitled to recover from TenantLessee, and Tenant Lessee shall pay to Landlord Lessor on demand, as and for liquidated and agreed final damages for TenantLessee's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent additional rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the to date to which Tenant Lessee shall have satisfied in full its obligations under Section 5.1(fsubsection 7.01(f) to pay liquidated and agreed current damages) for what would be the then-then unexpired term of this Lease Term in the absence of such expiration, termination, re-entryreentry, repossession or removal, discounted at a the rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") 6% per annum, over (b) the then fair rental value of the Premises for what would be such then unexpired term of this LeasePremises, discounted at the Treasury Rate rate of 6% per annum for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest errorperiod. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord Lessor shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Samples: Lease Agreement (Point 360)
Conditional Limitations; Default Provisions. The following shall constitute events of default ("Events of Default") hereunder:
(a) Any If default shall be made in the due and punctual payment to Landlord of any installment of Basic Rent payable under the following occurrences Lease or acts any part thereof when and as the same shall constitute an "Event of Default" under this Lease:
(i) if Tenant shall (1) fail to pay any Basic Rent, Additional Rent or other sum as have become due and when required to be paid by Tenant hereunderpayable, and such failure default shall continue for two a period of three (23) Business Days days after delivery of written notice Notice from Landlord (or Lender; or
(b) to If default shall be made in the due and punctual payment of any Additional Rent payable by Tenant that such payment was not received under this Lease or any part thereof when dueand as the same shall become due and payable, or (2) fail to observe or perform any other provision hereof and such failure default shall continue for a period of fifteen (15) days after Notice from Landlord or Lender; or
(c) If any of the representations and warranties made by Tenant in this Lease shall prove untrue in any material respect, and Tenant shall fail to make such representations and warranties true (if such default is capable of being remedied) within fifteen (15) days after Notice thereof from Landlord or Lender to Tenant or, if such default cannot with all due diligence be cured within such period of fifteen (15) days but is susceptible of being cured within a longer period of time, Tenant fails to proceed with all due diligence within such period of fifteen (15) days to cure the same and thereafter to prosecute the curing of such default with all due diligence (it being intended that if such default is susceptible of being cured but cannot with all due reasonable diligence be cured within such period of fifteen (15) days that the time of Tenant within which to cure the same shall be extended for such period of time as may be necessary to complete the curing thereof with all due diligence); or
(d) If default shall be made by Tenant in the performance of or compliance with any of the provisions contained in this Lease (other than those referred to in the foregoing subsections (a), (b) and (c) and such default shall continue for a period of thirty (30) days after written notice thereof from Landlord to Tenant of such failure (providedTenant, that or, in the case of any such failure a default or a contingency which is capable susceptible of being cured but cannot be cured by the payment of money and which cannot with all due diligence be cured within such period of thirty (30-day period) days, if Tenant shall commence promptly fails to proceed with all due diligence within such period of thirty (30) days to cure the same and thereafter to prosecute the curing thereof of such default with diligence, all due diligence (it being intended that in connection with a default susceptible of being cured but which cannot with all due diligence be cured within such period of thirty (30) days that the time of Tenant within which such failure may be cured to cure the same shall be extended for such period as is may be necessary to complete the curing thereof with all due diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or
(iie) if any representation or warranty of If Tenant or Guarantor set forth herein or or, in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this the event the Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
assigned, the Tenant named herein (iii) if Tenant or ACCOR the "Original Tenant"), or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein Guarantor as a "Guarantor") the case may be, shall file a voluntary petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall file any petition or answer seeking any reorganization, arrangement, recapitalization, readjustment, liquidation, dissolution or similar relief under any present or future Federal Bankruptcy Code or any other present or future applicable law relating to relief for debtors ("Bankruptcy Law"), or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant, Original Tenant, or any Guarantor as the case may be, or of all or any substantial part of its or their properties or of the Leased Premises, or shall make an assignment for the benefit of creditors creditors, or shall admit in writing its or their inability to pay its debts generally as they the same become due; or
(f) If within one hundred twenty (120) days after the commencement of any proceedings against Tenant, Original Tenant, or if a petition or answer proposing the adjudication of Tenant or a any Guarantor as a bankrupt or its reorganization pursuant to the case may be, seeking any federal or state bankruptcyreorganization, arrangement, recapitalization, readjustment, liquidation, voluntary administrationdissolution or similar relief under any Bankruptcy Law, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer proceedings shall not be discharged have been dismissed, or denied if, within ninety (90) days after the filing thereof; or
(iv) if a receiverappointment, without the consent or acquiescence of Tenant, Original Tenant, or any Guarantor as the case may be, of any trustee, administrator receiver or liquidator of Tenant Tenant, Original Tenant, or any Guarantor as the case may be, or of all or substantially all any substantial part of its or their properties or the assets of Tenant Leased Premises, such appointment shall not have been vacated or such Guarantor stayed on appeal or otherwise, or within one hundred twenty (120) days after the expiration of any Project or Tenant's estate therein such stay such appointment shall be appointed in any proceeding brought by Tenant or a Guarantornot have been vacated, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointmentdays, an execution, warrant, attachment, garnishment levied or fixed against the Leased Premises, or if Tenant any part thereof, or a against Tenant, Original Tenant, or any Guarantor as the case may be, shall consent to not be vacated or acquiesce in such appointmentdischarged; or
(vg) if any Project If Original Tenant shall have been left unoccupied not be the then Tenant and unattended for the then Tenant shall cease to be the parent, an affiliate or a period wholly owned subsidiary of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure)Original Tenant; or
(vih) if Tenant If the provisions of Section 18 restricting assignments of this Lease or a Guarantor any interest therein, or interests in Tenant, or the admission of new or additional partners or shareholders to Tenant, shall dissolve or otherwise fail to maintain its legal existencebe violated; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereof.
(bi) If the Lender shall declare an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's termination of the term of this Lease. Upon the giving of such notice, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an "Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at " under the Rate from Mortgage or accelerate the due date thereof to and including maturity of the date of indebtedness secured thereby or if such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord Mortgage shall be entitled to recover the same from Tenant on each such dateforeclosed.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any The occurrence of any one or more of the following occurrences events (any such event being specified herein as a failure or acts default) shall constitute an "Event of Default" Default under this Lease:
: (i) if a failure by Tenant shall to make (1regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant from complying with the provisions of this Lease): (x) fail any payment of Basic Rent which continues unremedied for a period of three (3) business days after written notice (“Nonpayment Notice”) thereof given to pay Tenant by Landlord or Lender or Lender’s designee, or (y) any Basic Rent, payment of Additional Rent or other sum as and when herein required to be paid by Tenant hereunderwhich continues unremedied for a period of fifteen (15) business days after a Nonpayment Notice is given to Tenant by Landlord or Lender or Lender’s designee; (ii) failure by Tenant to perform and observe, or a violation or breach of, any other provision in this Lease and such failure default shall continue for two a period of sixty (260) Business Days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, or (2) fail to observe or perform any other provision hereof and such failure shall continue for thirty (30) business days after written notice thereof is given by Landlord or Lender or Lender’s designee to Tenant or if such default is of such failure (provided, a nature that in the case of any such failure which is capable of being cured but it cannot be cured by the payment of money and cannot with diligence reasonably be cured within such 30-day periodperiod of sixty (60) business days, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured period shall be extended for such period longer time as is reasonably necessary provided that Tenant has commenced to complete the curing thereof cure such default within said period of sixty (60) business days and is actively, diligently and in good faith proceeding with diligence, but in no event continuity to exceed one hundred twenty (120) days from the date of remedy such failure)default; or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease shall (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor"A) shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall voluntarily be adjudicated a bankrupt or become insolvent insolvent, (B) or shall make an voluntarily consent to the appointment of a receiver or trustee for itself or for any of the Leased Premises, (C) voluntarily file a petition seeking relief under the bankruptcy or other similar laws of the United States, any state or any jurisdiction, or (D) voluntarily file a general assignment for the benefit of creditors creditors; (iv) a court shall enter an order, judgment or decree appointing, with the voluntary consent of Tenant, a receiver or trustee for Tenant or for the Leased Premises or approving a petition filed against Tenant which seeks relief under the bankruptcy or other similar laws of the United States or any State, and such order, judgment or decree shall remain in force, undischarged or unstayed, 180 business days after it is entered; (v) Tenant shall in any insolvency proceedings be liquidated or dissolved or shall admit in writing voluntarily commence proceedings towards its inability to pay its debts generally as they become due, liquidation or if a petition dissolution; (vi) the estate or answer proposing the adjudication interest of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law in the Leased Premises shall be filed levied upon or attached in any court proceeding and Tenant such estate or interest is about to be sold or transferred or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer process shall not be discharged vacated or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) 180 business days after such appointment, levy or if Tenant attachment; or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereof.
(b) If an Event of Default shall have occurred and be continuing under any of the other Tenant Leases with Landlord during the Initial Term but excluding any Extension Term or (viii) any representation or warranty by Tenant in any lease, guaranty, estoppel or other written certificate, financial statement or agreement delivered in connection with this Lease shall be entitled to all remedies available at law or have been incorrect in equity. Without limiting the foregoinga material respect when made.
(b) If any Event of Default shall have occurred, Landlord shall have the right at its option, then or at any time thereafter, to do any one or more of the following without demand upon or notice to Tenant:
(i) Landlord may give Tenant notice (following the occurrence of an Event of Default) of Landlord's termination ’s intention to terminate this Lease on a date specified in such notice (which date shall be no sooner than thirty (30) days after the date of the term of this Leasenotice). Upon the giving date therein specified, unless the Event of such noticeDefault for which the termination is effected has been cured by Tenant, the term of this Lease Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminateterminate as if such date were the date herein above fixed for the expiration of the Term, but Tenant shall remain liable for all its obligations hereunder through the date herein above fixed for the expiration of the Term, including its liability for Basic Rent and Additional Rent as hereinafter provided.
(cii) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate rightmay, whether or not the term Term of this Lease shall have been terminated pursuant to Section 5.1(bclause (i) above give Tenant notice (following the occurrence of an Event of Default) to surrender the Leased Premises to Landlord on a date specified in such notice (which date shall be no sooner than thirty (30) days after the date of the notice), at which time Tenant shall surrender and deliver possession of the Leased Premises to re-enter and repossess Landlord unless the Premises and Event of Default for which the right to termination is effected has been cured by Tenant. Upon or at any time after taking possession of the Leased Premises, Landlord may remove all any persons and or property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdictiontherefrom. Landlord shall be under no liability for or by reason of any such re-entry, repossession or removal. No such re-entry, entry or repossession or removal shall be construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such termination is given intention to Tenant pursuant to Section 5.1(b)clause (i) above.
(diii) At After repossession of any time or from time to time after a re-entry, repossession or removal of the Leased Premises pursuant to Section 5.1(c)clause (ii) above, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b)clause (i) above, Landlord may (but shall be under no obligation to) relet the Leased Premises or any part thereof to such tenant or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, tenants for such term or terms and (which may be greater or less than the period which would otherwise have constituted the balance of the Term) for such rent, on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its absolute reasonable discretion, may determine. ; and Landlord may shall collect and receive any rents payable by reason of such reletting. The rents received on such reletting shall be applied (A) first to the reasonable and actual expenses of such reletting and collection, including without limitation necessary renovation and alterations of the Leased Premises, reasonable and actual attorneys’ fees and any reasonable and actual real estate commissions paid, and (B) thereafter toward payment of all sums due or to become due Landlord hereunder. If a sufficient amount to pay such expenses and sums shall not be liable for realized or secured, then Tenant shall pay Landlord any failure such deficiency monthly, and Landlord may bring an action therefor as such monthly deficiency shall arise. Landlord shall not, in any event, be required to relet pay Tenant any sums received by Landlord on a reletting of the Leased Premises in excess of the rent provided in this Lease, but such excess shall reduce any accrued present or future obligations of Tenant hereunder. Landlord’s re-entry and reletting of the Leased Premises without termination of this Lease shall not preclude Landlord from subsequently terminating this Lease as set forth above. Landlord may make such Alterations as Landlord in its reasonable discretion may deem advisable. Tenant agrees to pay Landlord, as Additional Rent, immediately upon demand, all reasonable expenses incurred by Landlord in obtaining possession, in performing Alterations and in reletting any of the Projects or for any failure to collect any rent due upon any such relettingLeased Premises, including fees and commissions of attorneys, architects, agents and brokers.
(eiv) No expiration If Tenant shall fail to make payment of any installment of Basic Rent or earlier termination any Additional Rent on or before the date when each such payment is due, Tenant shall pay to Landlord, a sum equal to two (2%) percent per annum above the then current Prime Rate, as hereinafter defined, of the amount unpaid, or the default rate specified under the Loan, whichever is greater (the “Default Rate”) computed from the date such payment of Basic Rent or Additional Rent was due to and including the date of payment. The term Prime Rate shall mean the prime rate of interest published in the Wall Street Journal or its successor, from time to time.
(v) Landlord may exercise any other right or remedy now or hereafter existing by law or in equity, including, without limitation, the remedies provided for in: (i) California Civil Code Section 1951.2, including, without limitation, paragraph (3) of subdivision (a) thereof which provides that Landlord shall also be entitled to recover from Tenant the worth at the time of award of the amount by which the unpaid Rent for the balance of the term after the time of this Lease pursuant award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; and (ii) California Civil Code Section 1951.4, which provides, in effect, that a lessor may continue a lease in effect after the lessee’s breach and abandonment and may recover rent as it becomes due, if the lessee has the right to sublet or assign, subject only to reasonable limitations. Notwithstanding anything set forth herein to the contrary, Landlord shall give such notice as may be required under California Code of Civil Procedure Section 5.1(b), by operation of 1161 or as may otherwise be required under California law or otherwise, and no re-entry, repossession or removal pursuant prior to Section 5.1(c) or otherwise, and no reletting instituting any action to recover possession of the Leased Premises pursuant or for the appointment of a receiver to Section 5.1(d) take possession of the Leased Premises after the occurrence of any Event of Default or otherwise, shall relieve Tenant prior to instituting any action for damages as a consequence of its liabilities and obligations hereunder, all any Event of which shall survive such expiration, termination, re-entry, repossession, removal or relettingDefault.
(fc) In the event of the any expiration or earlier termination of the term of this Lease or re-entry or repossession of any of the Leased Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and all other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof Tenant to and including the date of such expiration, terminationtermination or repossession and, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease Term in the absence of such expiration, terminationtermination or repossession, re-entry, repossession or removal and whether or not any Projects of the Leased Premises shall have been relet, be liable to Landlord for, for and shall pay to Landlord, Landlord as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and all other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession termination or removalrepossession, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(dparagraph 19 (b) (iii), after deducting from such proceeds all of Landlord’s reasonable expenses of Landlord in connection with such reletting (including, without limitation, including all reasonable repossession costs, brokerage commissions, reasonable legal expenses, attorneys' fees and expenses (including fees and expenses of appellate proceedings)’ fees, employees' ’ expenses, alteration costs of Alteration and expenses of preparation for such reletting). Tenant shall pay hereby agrees to be and remain liable for all sums aforesaid and Landlord may recover such liquidated damages from Tenant and agreed current damages on institute and maintain successive actions or legal proceedings against Tenant for the dates on which Basic Rent would be payable under this Lease in the absence recovery of such expiration, termination, re-entry, repossession or removal, and Landlord damages. Nothing herein contained shall be entitled deemed to recover require Landlord to wait to begin such action or other legal proceedings until the same from Tenant on each date when the Term would have expired by limitation had there been no such dateEvent of Default.
(gd) At any time after any such expiration or earlier sooner termination of the term of this Lease pursuant to Paragraph 19 or re-entry pursuant to Law or repossession of if Landlord shall have reentered the Premises or removal of persons or property thereon by reason of Leased Premises, as the occurrence of an Event of Defaultcase may be, whether or not Landlord shall have previously collected recovered any liquidated and agreed current damages pursuant to Section 5.1(famounts under Paragraph 19(b)(iii) or 19(c), Landlord shall be entitled to recover from Tenant, Tenant and Tenant shall pay to Landlord Landlord, on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond ’s default, the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix amount by which the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, and all Additional Rent and other sums which would be payable under this Lease, in each case from reserved hereunder for the date unexpired portion of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (demised herein as if the "Treasury Rate") over (b) Lease had not expired or been terminated exceeds the then fair and reasonable rental value of the Leased Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period period, discounted to present worth at the annual rate of seven percent (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g7%), the following shall apply: minus any such monthly deficiencies previously recovered from Tenant under Paragraph 19(b)(iii) if applicable to such period.
(ae) determinations If any statute or rule of fair rental value shall be made by an MAT appraiser (engaged by Landlordlaw governing a proceeding in which such liquidated final damages provided for in Paragraph 19(d) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis are to be provided to Tenant; and (b) all determinations of Liquidated Damages proved shall be binding on Tenant in the absence of manifest error. If any law shall validly limit the amount of liquidated final damages thereof to an amount less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such statute or rule of law.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of Default" Default under this Lease:
(i) if Tenant If Lessee shall (1) fail to pay any Basic Rent, Additional Rent as and when required to be paid by Lessee hereunder and such failure shall continue for three (3) business days after written notice thereof is given by Lessor to Lessee, (2) fail to pay additional rent or other sum as and when required to be paid by Tenant hereunder, and such failure shall continue for two Lessee hereunder within seven (27) Business Days business days after delivery of written notice from Landlord (or Lender) thereof is given by Lessor to Tenant that such payment was not received when dueLessee, or (23) fail to observe or perform any other provision hereof and such nonmonetary failure shall continue for thirty (30) days after written notice to Tenant Lessee of such failure (providedprovided that, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-30 day period, if Tenant Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period not to exceed 180 days as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or;
(ii) if any representation If Lessee or warranty of Tenant or Guarantor set forth herein or in any noticeThe Bon-Ton Stores, certificateInc., demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of a Pennsylvania corporation (the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "“Guarantor"”) shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become duecreditors, or if a petition or answer proposing the adjudication of Tenant Lessee or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust bankruptcy law or any similar federal or state law shall be filed in any court and Tenant Lessee or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or;
(iviii) if If a receiver, trusteetrustee or conservator of Lessee or Guarantor, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant Lessee or such Guarantor Guarantor, or of any Project the Premises or Tenant's Lessee’s or Guarantor’s estate therein shall be appointed in any proceeding brought by Tenant Lessee or a Guarantor, or if any such receiver, trustee or liquidator conservator shall be appointed in any proceeding brought against Tenant Lessee or a Guarantor and shall not be discharged within ninety (90ninety(90) days after such appointment, or if Tenant Lessee or a Guarantor shall consent to or acquiesce in such appointment;
(iv) If Guarantor shall have defaulted in its obligations under the Guaranty dated as of the same date hereof (the “Guaranty”); orand
(v) if any Project If the Premises shall have been left unoccupied (A) abandoned by Lessee and unattended (B) not maintained or secured in the manner required hereunder for a period of thirty (30) consecutive days (other than for renovation after written notice of such from Lessor to Lessee. Notwithstanding the foregoing, the Premises shall not be deemed to have been abandoned if the Premises are occupied by an assignee or reconstruction or during periods sublessee of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereofLessee.
(b) If an Event of Default shall have occurred happened and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingcontinuing, Landlord Lessor shall have the right to give Tenant Lessee notice of Landlord's Lessor’s termination of the term of this LeaseLease Term. Upon the giving of such notice, the term of this Lease Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this LeaseLease Term, and all rights of Tenant Lessee hereunder shall expire and terminate, but Tenant Lessee shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord Lessor shall have the immediate right, whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(b7.01(b), to re-enter reenter and repossess the Premises and the right to remove all persons and property (subject to Section 3.02) therefrom by summary proceedings, ejectment, ejectment or any other legal action or in any lawful manner Landlord Lessor determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord Lessor shall be under no liability by reason of any such re-entryreentry, repossession or removal. No such re-entryreentry, repossession or removal shall be construed as an election by Landlord Lessor to terminate this the Lease Term unless a notice of such termination is given to Tenant Lessee pursuant to Section 5.1(b)7.01(b) or unless such termination is decreed by a court.
(d) At any time or from time to time after a re-entryreentry, repossession or removal pursuant to Section 5.1(c7.01(c), whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(b), Landlord 7.01(b) Lessor may (but shall be under no obligation to) ), relet any or all of the Projects Premises for the account of TenantLessee, in the name of Tenant Lessee or Landlord Lessor or otherwise, without notice to TenantLessee, for such term or terms and on such conditions and for such uses as LandlordLessor, in its absolute discretion, may determine. Landlord Lessor may collect any rents payable by reason of such reletting. Landlord Lessor shall not be liable for any failure to relet any of the Projects Premises or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease Term pursuant to Section 5.1(b7.01(b), by operation of law or otherwise, and no re-entryreentry, repossession or removal pursuant to Section 5.1(c7.01(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d7.01(d) or otherwise, shall relieve Tenant Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entryreentry, repossession, removal or reletting.
(f) In the event of the any expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant Lessee shall pay to Landlord Lessor all Basic Rent, Additional Rent additional rent and other sums required to be paid by TenantLessee, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entryreentry, repossession or removal; and , and, thereafter, Tenant Lessee shall, until the end of what would have been the term of this Lease Term in the absence of such expiration, termination, re-entryreentry, repossession or removal and whether or not any Projects the Premises shall have been relet, be liable to Landlord Lessor for, and shall pay to LandlordLessor, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent all additional rent and other sums which would be payable under this Lease by Tenant Lessee in the absence of any such expiration, termination, re-entryreentry, repossession or removal, together with all expenses of Lessor in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys’ fees and expenses (including, without limitation, fees and expenses of appellate proceedings), employee’s expenses, alteration costs and expenses of necessary preparation for such reletting), less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant Lessee pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting7.01(d). Tenant Lessee shall pay such liquidated and agreed current damages on the dates on which Basic Rent rent would be payable under this Lease in the absence of such expiration, termination, re-entryreentry, repossession or removal, and Landlord Lessor shall be entitled to recover the same from Tenant Lessee on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property thereon therefrom by reason of the occurrence of an Event of Default, whether or not Landlord Lessor shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f7.01(f), Landlord Lessor shall be entitled to recover from TenantLessee, and Tenant Lessee shall pay to Landlord Lessor on demand, as and for liquidated and agreed final damages for Tenant's Lessee’s default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent additional rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the to date to which Tenant Lessee shall have satisfied in full its obligations under Section 5.1(f7.01(f) to pay liquidated and agreed current damages) for what would be the then-then unexpired term of this Lease Term in the absence of such expiration, termination, re-entryreentry, repossession or removal, discounted at a the rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") 4% per annum, over (b) the then fair rental value of the Premises for what would be such then unexpired term of this LeasePremises, discounted at the Treasury Rate rate of 4% per annum for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest errorperiod. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord Lessor shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of Default" under this Lease:
(ia) if Tenant shall fails to make any payment of Rent and such failure continues for 10 days after Landlord has given Tenant notice specifying such default, or
(1b) fail if Tenant fails to pay maintain any Basic Rent, Additional Rent or other sum as and when insurance required to be paid maintained by Tenant hereunder, under Section 21 and such failure shall continue continues for two (2) Business Days 10 days after delivery of written Landlord has given Tenant notice from Landlord (or Lender) to Tenant that specifying such payment was not received when duedefault, or ---------
(2c) fail if the insurance maintained fails to comply with Section 21, or any Lien that is not a Permitted Lien continues to exist for 20 days from the earlier of (A) the date on which Landlord gives Tenant notice of the existence of such Lien and (B) the date on which Tenant otherwise acquires knowledge of the existence of such Lien, or Tenant shall sublet the Premises or make an assignment of Tenant's interest under this Lease except in accordance with the applicable provisions of this Lease, or
(d) if Tenant fails to perform or observe or perform any other provision hereof covenant or condition to be performed or observed by Tenant under this Lease and such failure shall continue continues for thirty (30) 30 days after written Landlord has given Tenant notice to Tenant of specifying such failure, or if such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with due diligence be cured within such 30-day periodperiod because of the nature of the default or Unavoidable Delay(s) and cure after such period shall not subject Landlord to the risk of criminal liability, if Tenant shall commence fails to proceed promptly to cure the same such failure and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period as is necessary to complete the curing of such failure with diligence and continuity and in any event within 180 days after the giving of such notice,
(e) if an Event of Insolvency shall occur, or
(f) any act or omission of Tenant which causes a default beyond applicable notice grace and cure periods, if any, any, under the Basic Term Loan Documents or the Extended Term Loan Documents, as applicable (provided that Landlord shall give Tenant notice thereof with diligencepromptly upon Landlord's receipt of such notice, if any, from the Qualified Fee Mortgagee and permit Tenant the opportunity to cure same to the extent of Landlord's rights of cure under the Basic Term Loan Documents or Extended Term Loan Documents, as applicable), then, in any such case, Landlord shall, in addition to any other remedies available to it at law or in equity, but subject to the rights of certain mortgagees and subtenants as set out in no event other provisions of this Lease be entitled to exceed one hundred twenty (120) give Tenant a notice of intention to end the Term at the expiration of five days from the date of such failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereof.
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's termination of the term of this Lease. Upon the giving of such notice, the term of and, if such notice is given, this Lease and the Term and estate hereby granted shall expire and terminate on the expiration of such date as fully and completely and five-day period with the same effect as if the last day of such date were period was the date herein fixed provided in Section 4 for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminateTerm, but Tenant shall remain liable for damages as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate right, whether provided herein or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Samples: Lease (Alexanders Inc)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of Default" Default under this Lease:
(i) if Tenant If Lessee shall (1) fail to pay any Basic Rent, Additional Rent additional rent or other sum sum, as and when required to be paid by Tenant hereunder, Lessee hereunder and such failure shall continue for two five (25) Business Days after delivery of written days following notice from Landlord Lessor of such failure;
(ii) If Lessee shall make or Lenderpermit any assignment or transfer of this Lease in breach of this Lease or sublet the Premises or any portion thereof in breach of this Lease;
(iii) to Tenant that such payment was not received when due, or (2) If Lessee shall fail to observe or perform any other provision hereof not specified in clauses (i) or (ii) and such failure shall continue for thirty (30) days after written notice to Tenant Lessee of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such thirty (30-) day period, if Tenant Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period not to exceed ninety (90) additional days as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or;
(iiiv) If any representation or warranty of Lessee set forth herein or in any document, notice, certificate, demand or request executed by Lessee and delivered to Lessor, or if any representation or warranty of Tenant or any Guarantor set forth herein in a guaranty or in any document, notice, certificate, demand, demand or request or other document or instrument delivered to Landlord in connection with this Lease Lessor, shall prove to be incorrect in any material adverse respect as of the time when the same shall have been made; ormade in a way adverse to Lessor;
(iiiv) if Tenant or ACCOR If Lessee or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") Guarantor shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any federal or state law (or any other law governing a Guarantor)law, or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant Lessee or a any Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust bankruptcy law or any similar federal or state law shall be filed in any court and Tenant Lessee or such Guarantor Guarantor, as applicable, shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or;
(ivvi) if If a receiver, trustee, administrator trustee or liquidator of Tenant Lessee or any Guarantor Guarantor, or of all or substantially all of the assets of Tenant Lessee or such Guarantor any Guarantor, or of any Project the Premises or TenantLessee's estate therein shall be appointed in any proceeding brought by Tenant Lessee or a any Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant Lessee or a any Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant Lessee or a any Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or;
(vii) if Tenant If the Premises shall default under Sections 4.1(a), 4.1(b) be abondoned and Lessee fails to pay the Rent or 10.3 of otherwise maintain and protect the Premises required by this Lease;
(viii) if If any guaranty of this lease (a "Guaranty") shall cease to be in full force and effect for any reason whatsoever other than a termination of such Guaranty as expressly provided for in such Guaranty, but otherwise including, without limitation, a final determination by a governmental body or court that the Guaranty is invalid, void or unenforceable or the Guarantor thereunder shall default under contest or deny in writing the provisions validity or enforceability of any of its guarantyobligations under its Guaranty; or
(ix) If a default occurs under any Guaranty which default continues beyond applicable grace periods, if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with any, for the terms and conditions cure of Section 3.7 hereofsuch default.
(b) If an Event of Default shall have occurred and be continuing Landlord continuing, Lessor shall be entitled have the right to all remedies available proceed by appropriate court action or actions, either at law or in equity. Without limiting , to enforce performance by Lessee of the foregoingapplicable covenants and terms of this Lease or to recover damages for the breach thereof or both.
(c) If an Event of Default shall have occurred and be continuing, Landlord Lessor shall have the right to give Tenant Lessee notice of LandlordLessor's termination of the term of this LeaseTerm. Upon the giving of such notice, the term of this Lease Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this LeaseTerm, and all rights of Tenant Lessee hereunder shall expire and terminate, but Tenant Lessee shall remain liable as hereinafter provided.
(cd) If an Event of Default shall have happened occurred and be continuing, Landlord Lessor shall have the immediate right, whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(bSubsection 7.1(c), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord Lessor determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord Lessor shall be under incur no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord Lessor to terminate this Lease the Term unless a notice of such termination is given to Tenant Lessee pursuant to Section 5.1(bSubsection 7.1(c).
(de) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(cSubsection 7.1(d), whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(bSubsection 7.1(c), Landlord Lessor may (but shall be under no obligation to) relet any or all of the Projects Premises for the account of TenantLessee, in the name of Tenant Lessee or Landlord Lessor or otherwise, without notice to TenantLessee, for such term or terms and on such conditions and for such uses as LandlordLessor, in its absolute reasonable discretion, may determine. Landlord Lessor may collect any rents payable by reason of such reletting. Landlord Lessor shall not be liable for any failure to relet any of the Projects Premises or for any failure to collect any rent due upon any such reletting. Lessor shall use reasonable efforts to relet the Premises in an effort to mitigate its damages.
(ef) No expiration or earlier termination of the term of this Lease Term pursuant to Section 5.1(bSubsection 7.1(c), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(cSubsection 7.1(d) or otherwise, and no reletting of the Premises pursuant to Section 5.1(dSubsection 7.2(e) or otherwise, shall relieve Tenant Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(fg) In the event of the any expiration or earlier termination of the term Term or re- entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Lessee shall pay to Lessor all Basic Rent, additional rent and other sums required under this Lease to be paid by Lessee, in each case to and including the date of such expiration, termination, re-entry, repossession or removal; and, thereafter, Lessee shall, until the end of what would have been the Term in the absence of such expiration, termination, re-entry, repossession or removal and whether or not the Premises shall have been relet, be liable to Lessor for, and shall pay to Lessor, as liquidated and agreed current damages: (i) all Basic Rent, all additional rent and other sums which would be payable under this Lease by Lessee in the absence of any such expiration, termination, re-entry, repossession or removal, together with all expenses of Lessor in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including, without limitation, fees and expenses of appellate proceedings), employee's expenses, alteration costs and expenses of preparation for such reletting) less (ii) the net proceeds, if any, of any reletting effected for the account of Lessee pursuant to Subsection 7.1(e). Lessee shall pay such liquidated and agreed current damages on the dates on which Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Lessor shall be entitled to recover the same from Lessee on each such date.
(h) At any time after any such expiration or termination of the Term or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord Lessor shall be entitled to recover from TenantLessee, and Tenant Lessee shall pay to Landlord Lessor on demand, as and for liquidated and agreed final damages for TenantLessee's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (ai) the aggregate of all unpaid Basic Rent, Additional Rent additional rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant Lessee shall have satisfied in full its obligations under Section 5.1(fsubsection 7.1(g) to pay liquidated and agreed current damages) for what is or would be the then-unexpired term of this Lease have been in the absence of such expiration, expiration or termination, re-entry, repossession or removalthe then unexpired Term, discounted at a the rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "Treasury Rate") 6% per annum over (bii) the then fair rental value of the Premises for what would be such then unexpired term of this Leasethe same period, discounted at the Treasury Rate for the same period (rate of 6% per annum. Nothing in subsection 7.1(g) or this 7.1(h) shall permit Lessor to double count any unpaid rent and collect such excess being hereinafter referred to as "Liquidated Damages"unpaid rent under both subsection 7.1(g) and this 7.1(h). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any applicable law shall limit the amount of liquidated final damages to less than the amount above agreed uponforegoing amount, Landlord Lessor shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any default shall be made in the due and punctual payment of any Rent, Impositions or additional rent payable under this Lease or any part thereof when and as the same shall become due and payable in accordance with the terms of this Lease; or
(b) default shall be made by Tenant in the performance of or compliance with any of the following occurrences covenants, agreements, terms or acts shall constitute an "Event of Default" under provisions contained in this Lease:
, other than those referred to in the foregoing subdivision (i) if Tenant shall (1) fail to pay any Basic Rent, Additional Rent or other sum as and when required to be paid by Tenant hereundera), and such failure default shall continue for two a period of ten (2) Business Days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, or (2) fail to observe or perform any other provision hereof and such failure shall continue for thirty (3010) days after written notice thereof from Landlord to Tenant of such failure (providedTenant, except that in the case of any such failure which is capable connection with a default not susceptible of being cured but cannot be cured by with due diligence within ten (10) days, the payment time of money and cannot with diligence be cured Tenant within such 30-day period, if Tenant shall commence promptly which to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period time as is may be necessary to complete cure the same with all due diligence, provided Tenant commences promptly and proceeds diligently to cure the same, and further provided that such period of time shall not be so extended as to subject Landlord to any civil or criminal liability or create a default under any fee mortgage; provided that for purposes of this subdivision (b) no default under any such mortgage shall be deemed to exist until five (5) days prior to the expiration of the period allowed by the holder of such mortgage for the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure)thereof; or
(iic) if any representation or warranty of the making by Tenant or Guarantor set forth herein or in any notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the time when the same shall have been made; or
(iii) if Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") of an assignment for the benefit of creditors, or its admitting in --------- writing its inability to pay its debts as they mature, or if Tenant or any Guarantor shall file a voluntary petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor)insolvency, or shall be adjudicated a bankrupt or become insolvent insolvent, or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a file any petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to seeking any federal or state bankruptcyreorganization, arrangement, composition, readjustment, liquidation, voluntary administration, administration, receivership, moratorium dissolution or trust law similar relief under the present or any similar future federal bankruptcy act or any other present or future applicable federal, state law or other statute or law, or shall be filed in any court and Tenant seek or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, appointment of any trustee, administrator receiver or liquidator of Tenant or any Guarantor or of all or substantially all any part of the assets of Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in or any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment's property; or
(vd) if any Project shall have been left unoccupied and unattended for a period of if, within thirty (30) days after the commencement of any proceeding against Tenant or any Guarantor, whether by the filing of a petition or otherwise, seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act or any other present or future applicable federal, state or other statute or law, such proceeding shall not have been dismissed, or if, within thirty (other than for renovation 30) days after the appointment of any trustee, receiver or reconstruction liquidator of Tenant or during periods any Guarantor, or of seasonal closure)all or any part of Tenant's or any Guarantor's property, without the consent or acquiescence of Tenant or said Guarantor, such appointment shall not have been vacated or otherwise discharged, or if any execution or attachment shall be issued against Tenant or any of Tenant's property pursuant to which the Demised Premises or any part thereof shall be taken or occupied or attempted to be taken or occupied; or
(vie) if Tenant shall vacate or a Guarantor shall dissolve or otherwise fail to maintain its legal existenceabandon the Demised Premises; or
(viif) if this Lease or the estate of Tenant hereunder shall default be sublet, assigned or otherwise transferred to or shall devolve upon any other person, whether by operation of law or otherwise, except in a manner permitted under Sections 4.1(a), 4.1(b) or 10.3 of this LeaseArticle 18 hereof;
(viiig) if a default or breach shall occur in the payment or performance of any Guarantor shall obligation of Norton XxXxxxxxxx, Inc. or JJ Acquisition Corp. contained in or contemplated by any of the documents described in Exhibit B annexed hereto --------- and made a part hereof or any of the transactions described therein, and such default under or breach is not cured within the provisions grace period, if any, provided for therein; then and in any such event Landlord at any time thereafter during the continuance of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereof.
(b) If an such Event of Default may give a five (5) day's notice of termination of this Lease in the manner required by Article 22 hereof (regardless of whether Landlord prior to the giving of such notice shall have occurred accepted rent or any other payment, however designated, for the use and be continuing Landlord occupancy of the Demised Premises from or on behalf of Tenant or from any other person) to Tenant specifying such Event or Events of Default and stating that this Lease and the term hereby demised shall expire and terminate on the date specified in such notice, which date shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord shall have the right to give Tenant notice of Landlord's termination of the term of this Lease. Upon least five (5) days after the giving of such notice. In the event such notice is given, the term of this Lease and the estate term hereby granted demised and all rights of Tenant under this Lease shall expire and terminate on upon the date specified in such date as fully and completely and notice with the same effect as if the date specified in such date notice were the date herein fixed set forth in this Lease for the expiration of the term of this Lease, and all rights of Tenant hereunder shall expire and terminatehereby demised, but Tenant shall remain liable as hereinafter providedprovided in Section 19.03 hereof.
(c) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate right, whether Section 19.02 Upon any such expiration or not the term termination of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default------------- Lease, Tenant shall pay to Landlord all Basic Rent, Additional Rent quit and other sums required to be paid by Tenant, in each case together with interest thereon at peacefully surrender the Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay Demised Premises to Landlord, as liquidated and agreed current damages: (i) all Basic RentLandlord, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession upon or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At at any time after any such expiration or earlier termination, may, without further notice, enter upon and re-enter the Demised Premises and possess and repossess itself thereof, by force, summary proceedings, ejectment or otherwise, and may dispossess Tenant and remove Tenant and all other persons and property from the Demised Premises and may have, hold and enjoy the Demised Premises and the right to receive all rental income of and from the same.
Section 19.03 No such expiration or termination of this Lease, ------------- including the term of this Lease or re-entry of Landlord, shall relieve Tenant of its liability and obligations to pay the Rent, Impositions, insurance premiums and additional rent theretofore accrued or thereafter accruing, to the extent set forth in Section 19.11, and such liability and obligations shall survive any such expiration or termination.
Section 19.04 Tenant hereby expressly waives, so far as ------------- permitted by law, the service of any notice of intention to reenter provided for in any statute, and Tenant, for and on behalf of itself and all persons claiming through or under Tenant, also waives any and all right of redemption or reentry or repossession of or to restore the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term operation of this Lease in the absence case Tenant shall be dispossessed by a judgment or by warrant of such expiration, termination, re-entry, any court or judge or in case of reentry or repossession by Landlord or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations in case of comparable maturity to the Term (the "Treasury Rate") over (b) the then fair rental value of the Premises for what would be such then unexpired term any expiration or termination of this Lease. The terms "enter," "reenter," "entry," or "reentry," as used in this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred are not restricted to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest error. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such lawtheir technical legal meaning.
Appears in 1 contract
Samples: Lease (Norton McNaughton Inc)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an "Event of Default" Default under this Lease:
(i) if If Tenant shall (1) fail to pay any Basic Rent, Additional Rent recurring additional rent or other recurring sum as and when required to be paid by Tenant hereunder, and due (except for such failure shall continue to constitute an Event of Default Landlord must provide Tenant with ten (10) days written notice of Tenant's failure to timely pay such sums one time for two any twelve month period); or (2) Business Days fail to pay any other sum payable by it pursuant to this Lease within thirty (30) days after delivery of written notice from Landlord (or Lender) to Tenant that such payment was not received when due, thereof; or (23) fail to observe or perform any other provision hereof and such nonmonetary failure shall continue for thirty (30) 30 days after written notice to Tenant of such failure (providedprovided that, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such failure may be cured shall be extended for such period not to exceed 180 days as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred twenty (120) days from the date of such failure); or;
(ii) if If any representation or warranty of Tenant or Guarantor set forth herein or in any noticecertificate provided by Tenant pursuant to this Lease, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material adverse respect as of the time when the same shall have been made in a way adverse to Landlord and Landlord shall suffer a material loss or material detriment as a result thereof, and, in each case, the facts shall not be conformed to the representation and warranty as soon as practicable in the circumstances (but in no event to exceed 30 days) after written notice to Tenant from Landlord of such inaccuracy and Landlord restored to the position it would have enjoyed had such representation or warranty been accurate at the time it was made; or;
(iii) if If Tenant or ACCOR or any guarantor of Tenant's obligations under this Lease (ACCOR and/or any such guarantor are each referred to herein as a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership arrangement pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become duecreditors, or if a petition or answer proposing the adjudication of Tenant or a Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust bankruptcy law or any similar federal or state law shall be filed in any court and Tenant or such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) 90 days after the filing thereof; or;
(iv) if If a receiver, trustee, administrator trustee or liquidator conservator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of any Project the Premises or Tenant's or estate therein shall be appointed in any proceeding brought by Tenant or a GuarantorTenant, or if any such receiver, trustee or liquidator conservator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) 90 days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or;
(v) if any Project If the Premises shall have been left unoccupied abandoned and unattended not maintained in the manner required hereunder for a period of 10 consecutive days after written notice of such from Landlord to Tenant; and
(vi) If a Letter of Credit has been posted as the Security Deposit or other security hereunder, and the issuer of the Letter of Credit cancels, terminates or refuses to honor it, and Tenant shall fail to renew the Letter of Credit within thirty (30) days (other than for renovation or reconstruction or during periods of seasonal closure); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 4.1(a), 4.1(b) or 10.3 of this Lease
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with post a cash equivalent amount of the terms and conditions Letter of Section 3.7 hereofCredit or a replacement letter of credit within thirty (30) days after notice of such cancellation, termination or refusal.
(b) If an Event of Default shall have occurred happened and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoingcontinuing, Landlord shall have the right to give Tenant notice of Landlord's termination of the term of this LeaseLease Term. Upon the giving of such notice, the term of this Lease Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the term of this LeaseLease Term, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord shall have the immediate right, whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(bsubsection 7.01(b), to re-enter reenter and repossess the Premises and the right to remove all persons and property (subject to Section 3.02) therefrom by summary proceedings, ejectment, ejectment or any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entryreentry, repossession or removal. No such re-entryreentry, repossession or removal shall be construed as an election by Landlord to terminate this the Lease Term unless a notice of such termination is given to Tenant pursuant to Section 5.1(b)subsection 7.01(b) or unless such termination is decreed by a court.
(d) At any time or from time to time after a re-entryreentry, repossession or removal pursuant to Section 5.1(csubsection 7.01(c), whether or not the term of this Lease Term shall have been terminated pursuant to Section 5.1(bsubsection 7.01(b), Landlord may (but shall be under no obligation to) relet any or all of the Projects Premises for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet any of the Projects Premises or for any failure to collect any rent due upon any such reletting. Notwithstanding the foregoing, Landlord agrees to make reasonable efforts to mitigate its damages under this Lease in the event Tenant actually vacates or advises Landlord that it is, as of a specified date, to vacate the Premises. The phrase "reasonable efforts," as it relates to Landlord's duty to attempt to relet the Premises, shall require Landlord to do only the following: (i) notify Landlord's management company or broker, if any, in writing of the availability of the Premises for reletting, (ii) post Landlord's leasing contact telephone number in an appropriate area of the Premises, and (iii) show the Premises to any prospective tenant interested in the Premises and to any prospective tenant specifically referred to Landlord by Tenant. Under any requirement of Landlord to use "reasonable efforts" as described herein, (i) Landlord shall not be required to relet the Premises ahead of any other properties in the same market not producing any income to Landlord; (ii) Landlord shall be entitled to consider tenant quality, tenant-mix, the financial condition of any prospective tenant, the nature of the Premises, the proposed use of the Premises by any prospective tenant, and any rights of existing subtenants located in the Premises, in making any leasing decision without being deemed to have violated its mitigation requirement hereunder; and (iii) under any new lease entered into by Landlord, Landlord may relet all or any portion of the Premises to create an appropriate block of space for a new tenant, may relet for a greater or lesser term than that remaining at that time under this Lease, and may include free rent, concessions, inducements, alterations and upgrades in the new lease. If a reletting occurs, Landlord shall recoup all of its expenses of reletting (including, without limitation, all expenses relating to remodeling, alterations, repairs, capital improvements, brokerage fees, decorating fees, and fees for architects, designers, space planners and attorneys) before Tenant is entitled to a credit on the damages owed by Tenant hereunder. If Landlord shall do all the foregoing then, anything in this Lease, or any statute, or common law rule to the contrary notwithstanding, Landlord shall be deemed to have met its duty (if any) to mitigate its damages hereunder.
(e) No expiration or earlier termination of the term of this Lease Term pursuant to Section 5.1(bsubsection 7.01(b), by operation of law or otherwise, and no re-entryreentry, repossession or removal pursuant to Section 5.1(csubsection 7.01(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(dsubsection 7.01(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entryreentry, repossession, removal or reletting.
(f) In the event of the any expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, Additional Rent additional rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Rate from the due date thereof to and including the date of such expiration, termination, re-entryreentry, repossession or removal; and , and, thereafter, Tenant shall, until the end of what would have been the term of this Lease Term in the absence of such expiration, termination, re-entryreentry, repossession or removal and whether or not any Projects the Premises shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, Additional Rent all additional rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entryreentry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds together with all reasonable and customary expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including including, without limitation, fees and expenses of appellate proceedings), employees' employee's expenses, alteration costs and expenses of necessary preparation for such reletting), less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to subsection 7.01(d). Tenant shall pay such liquidated and agreed current damages on the dates on which Basic Rent rent would be payable under this Lease in the absence of such expiration, termination, re-entryreentry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease Term or re-entry reentry or repossession of the Premises or removal of persons or property thereon therefrom by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any liquidated and agreed current damages pursuant to Section 5.1(fsubsection 7.01(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1 (f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent additional rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the to date to which Tenant shall have satisfied in full its obligations under Section 5.1(fsubsection 7.01(f) to pay liquidated and agreed current damages) for what would be the then-then unexpired term of this Lease Term in the absence of such expiration, termination, re-entryreentry, repossession or removal, discounted at a the rate equal to the then current yield on U.S. United States Treasury obligations Notes having a maturity as of comparable maturity to the stated date for expiration of the then existing Term of this Lease, plus 2% per annum (the "Treasury Reference Rate") ), over (b) the then fair rental value of the Premises for what would be such then unexpired term of this LeasePremises, discounted at the Treasury Reference Rate for the same period (such excess being hereinafter referred to as "Liquidated Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an MAT appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be binding on Tenant in the absence of manifest errorperiod. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
(h) To the extent the same may lawfully be waived, Tenant expressly, knowingly and voluntarily waives all constitutional, statutory and common law bonding requirements, including the requirement under Section 83.12, Florida Statutes (2003) that Landlord file a bond payable to Tenant in at least double the sum demanded by Landlord (or double the value of the property sought to be distrained), it being the intention of the parties that no bond shall be required to be filed by Landlord in any such distress action. Tenant further waives the right under Section 83.14, Florida Statutes (2003), to replevy distrained property.
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Samples: Lease Agreement (A21 Inc)
