Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an event of default under this Lease: (i) 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, 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 (A) fail to make any payment of Rent, Additional Rent or any other sum herein required to be paid by Tenant, or (B) fail to observe or perform any of Tenant’s other covenants, agreements or obligations hereunder or under the Service Agreement and if any failure shall continue as to (A) above for 10 days after receipt of written notice from Landlord that any such payment shall have become due, or as to (B) above for 30 days after Landlord shall have given to Tenant notice specifying such failure (or if such default cannot be cured by the payment of money and cannot with due diligence be cured within such 30 day period owing to causes beyond the control of Tenant, if Tenant shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such default with diligence and continuity), or (ii) if a receiver, trustee, or liquidator of Tenant or of all or substantially all of the property of Tenant or of the Leased Premises shall be appointed in any proceeding brought by Tenant, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant and shall not be discharged within 90 days after such appointment or if Tenant shall consent to or acquiesce in such appointment, (iii) if at any time Tenant discontinues operations at the Leased Premises or the Leased Premises shall have been abandoned or left unoccupied, and such condition shall have continued for 180 consecutive days, other than as a result of force majeure or (iv) if the interest of Tenant in the Leased Premises or part thereof shall be levied upon or attached in any proceeding and such process shall not be vacated or discharged (through bonding or otherwise) within 60 days after such levy or attachment.
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Samples: Lease Agreement (Kraton Performance Polymers, Inc.), Lease Agreement (Arizona Chemical Ltd.)
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 Event of default Default under this Lease: (i) if Tenant, at any time during the continuance of this Lease a failure by Tenant to make (and regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity, equity or before any administrative tribunal, tribunal which have had or might have the effect of preventing Tenant from complying with the terms provisions of this Lease), shall ): (Ax) fail to make any payment of RentBasic Rent which continues unremedied for a period of three (3) business days after written notice (“Nonpayment Notice”) thereof given to Tenant by Landlord or Lender or Lender’s designee, or (y) any payment of Additional Rent or any other sum herein required to be paid by Tenant, or Tenant which continues unremedied for a period of fifteen (B15) fail to observe or perform any of Tenant’s other covenants, agreements or obligations hereunder or under the Service Agreement and if any failure shall continue as to (A) above for 10 business days after receipt of written notice from Landlord that any such payment shall have become due, or as to (B) above for 30 days after Landlord shall have 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 default shall continue for a period of sixty (60) business days after written notice specifying such failure (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 be cured by the payment of money and cannot with due diligence reasonably be cured within such 30 day period owing of sixty (60) business days, such period shall be extended for such longer time as is reasonably necessary provided that Tenant has commenced to causes beyond cure such default within said period of sixty (60) business 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) or voluntarily consent to the control 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; (iv) a court shall enter an order, judgment or decree appointing, with the voluntary consent of Tenant, if Tenant shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such default with diligence and continuity), a receiver or (ii) if a receiver, trustee, or liquidator of trustee for Tenant or of all or substantially all of the property of Tenant or of the Leased Premises shall be appointed in any proceeding brought by Tenant, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant and shall not be discharged within 90 days after such appointment or if Tenant shall consent to or acquiesce in such appointment, (iii) if at any time Tenant discontinues operations at for the Leased Premises or approving a petition filed against Tenant which seeks relief under the Leased Premises shall have been abandoned bankruptcy or left unoccupiedother similar laws of the United States or any State, and such condition order, judgment or decree shall have continued for remain in force, undischarged or unstayed, 180 consecutive days, other than as a result of force majeure 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; (ivvi) if the estate or interest of Tenant in the Leased Premises or part thereof 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 (through bonding or otherwise) within 60 180 business days after such levy or attachment; or (vii) an Event of Default shall have occurred 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 have been incorrect in a material respect when made.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any 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 occurrences without demand upon or acts notice to Tenant: Landlord may give Tenant notice of Landlord's intention to terminate this Lease on a date specified in such notice (which date shall constitute an event be no sooner than ten (10) days after the date of default under the notice). Upon the date therein specified the Term and the estate hereby granted and all rights of Tenant hereunder shall expire and terminate 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. Landlord may, whether or not the Term of this Lease: Lease shall have been terminated pursuant to clause (i) if Tenantabove give Tenant notice to surrender the Leased Premises to Landlord on a date specified in such notice (which date shall be no sooner than ten (10) days after the date of the notice), at which time Tenant shall surrender and deliver possession of the Leased Premises to Landlord. Upon or at any time during after taking possession of the continuance Leased Premises, Landlord may remove any persons or property therefrom. Landlord shall be under no liability for or by reason of any such entry, repossession or removal. No such entry or repossession shall be construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such intention to Tenant pursuant to clause (i) above. After repossession of any of the Leased Premises pursuant to clause (ii) above, whether or not this Lease shall have been terminated pursuant to clause (i) above, Landlord may relet the Leased Premises or any part thereof to such tenant or tenants for such term or terms (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 reasonable discretion, may determine; and Landlord 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 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. 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 regardless in reletting any of the pendency Leased Premises, including fees and commissions of any bankruptcyattorneys, reorganizationarchitects, receivership, insolvency or other proceedings, in law, in equity, or before any administrative tribunal, which have or might have the effect of preventing agents and brokers. If Tenant from complying with the terms of this Lease), shall (A) fail to make any payment of any installment of Basic Rent or any Additional Rent after the date when each such payment is due, Tenant shall pay to Landlord, as Additional Rent, interest on the unpaid amount of Basic Rent or Additional Rent, at the Default Rate, such interest to accrue from the date such item of unpaid Basic Rent or Additional Rent was due until the date paid. Landlord may exercise any other right or remedy now or hereafter existing by law or in equity. In the event of any expiration or termination of this Lease or repossession of any of the Leased Premises by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord Basic Rent, Additional Rent or any and all other sum herein sums required to be paid by Tenant to and including the date of such expiration, termination or repossession and, thereafter, Tenant shall, until the end of what would have been the Term in the absence of such expiration, termination or repossession, and whether or not any of the Leased Premises shall have been relet, be liable to Landlord for and shall pay to Landlord as liquidated and agreed current damages: (i) Basic Rent, Additional Rent and all other sums which would be payable under this Lease by Tenant in the absence of such expiration, termination or repossession, less (ii) the net proceeds, if any, of any reletting pursuant to Paragraph 19 (a)(iii), after deducting from such proceeds all of Landlord's reasonable expenses in connection with such reletting (including all reasonable repossession costs, brokerage commissions, legal expenses, attorneys' fees, employees' expenses, costs of Alteration and expenses of preparation for reletting). Tenant hereby agrees to be and remain liable for all sums aforesaid and Landlord may recover such damages from Tenant and institute and maintain successive actions or legal proceedings against Tenant for the recovery of such damages. Nothing herein contained shall be deemed to require Landlord to wait to begin such action or other legal proceedings until the date when the Term would have expired by limitation had there been no such Event of Default. At any time after such expiration or sooner termination of this Lease pursuant to Paragraph 19 or pursuant to law or if Landlord shall have reentered the Leased Premises, as the case may be, whether or not Landlord shall have recovered any amounts under Paragraph 19(a)(iii) or 19(b), 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, the amount by which the Basic Rent and all Additional Rent reserved hereunder for the unexpired portion of the Term demised herein as if this Lease had not expired or been terminated exceeds the then fair and reasonable rental value of the Leased Premises for the same period, discounted to present worth at the annual rate of six percent (6%), minus any such monthly deficiencies previously recovered from Tenant under Paragraph 19(a)(iii). If any statute or rule of law governing a proceeding in which such liquidated final damages provided for in this Paragraph 19(c) are to be proved shall validly limit the amount 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. If an Event of Default shall have occurred and be continuing, whether or not this Lease shall have been terminated pursuant to this Paragraph 19 and whether or not Landlord shall have collected any liquidated damages pursuant to Paragraph 19(b), Landlord shall have the right to recover, by demand to Tenant and at Landlord's election, and Tenant shall pay to Landlord, as and for final liquidated damages (which, if requested, shall be paid concurrently), and in lieu of all liquidated damages beyond the date of such demand (it being agreed that it would be impossible accurately to determine actual damages) the Termination Value together with all Additional Payments. Upon payment of the Termination Value together with all Additional Payments, Tenant shall be entitled to receive from Landlord, either at Tenant's request or upon Landlord's election, in either case at Tenant's cost, an assignment of Landlord's entire right, title and interest in and to the Leased Premises, Land, Improvements, Equipment and all components thereof, in each case in recordable form and otherwise in conformity with local custom and free and clear of the lien of this Lease (including without limitation the release of any memoranda of Lease and/or any lease supplement recorded in connection therewith). The Leased Premises shall be conveyed to Tenant by special warranty deed (or local equivalent) and in their then present physical condition. The special warranty deed (or local equivalent) shall convey title, free from encumbrances other than (A) Permitted Encumbrances, (B) fail liens or encumbrances created or suffered by Tenant or arising by reason of the failure of Tenant to observe or perform any of the terms, covenants or agreements herein provided to be observed and performed by Tenant’s other covenants, agreements (C) any installments of Impositions then affecting the Leased Premises, and (D) this Lease. If any statute or rule of law shall limit the amount of such final liquidated damages to less than the amount agreed upon, Landlord shall be entitled to the maximum amount allowable under such statute or rule of law; provided, however, Tenant shall not be entitled to receive an assignment of Landlord's interest in the Leased Premises, Land, the Improvements, Equipment or the components thereof unless Tenant shall have paid in full the Termination Value together with all Additional Payments. Tenant specifically acknowledges and agrees that its obligations hereunder under this Section 19(d) shall be absolute and unconditional under any and all circumstances and shall be paid and/or performed, as the case may be, without notice or demand and without any abatement, reduction, diminution, setoff, defense, counterclaim or recoupment whatsoever. Notwithstanding anything to the contrary contained herein, if an Event of Default shall have occurred and, as a result thereof, Lender shall require Landlord, as borrower under the Service Agreement Loan, to purchase from Lender the Note or Notes evidencing the Loan and if any failure shall continue as to (A) above for 10 days after receipt of written notice from Landlord that any such payment otherwise pay off the Loan in full, Tenant shall have become duethe right to elect, at Tenant's sole cost and expense, to either (i) (x) purchase the Note or Notes directly from Lender and pay to Lender such amount required to pay off the Loan in full, together with any "make-whole" or other premiums under the Loan, and (y) thereafter pay to Landlord as Basic Rent under this Lease, the Basic Rent as set forth on Exhibit B-3 of this Lease less an amount equal to the monthly debt service that would have been payable under the Loan each month during the term hereof (B(x) above for 30 days after Landlord shall have given to Tenant notice specifying such failure and (or if such default cannot be cured by y) collectively, the payment of money and cannot with due diligence be cured within such 30 day period owing to causes beyond the control of Tenant, if Tenant shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such default with diligence and continuity"Note Purchase"), in which event, at Landlord's election, this Lease shall remain in full force and effect or (ii) if a receiverpay to Landlord the Termination Value, trustee, or liquidator of Tenant or of together with all or substantially all Additional Payments and any principal amount then outstanding under the Loan (to the extent such principal amount is not included as part of the property of Tenant or Additional Payments) (the "Property Purchase"). Upon payment of the Termination Value together with all Additional Payments, Tenant shall be entitled to receive from Landlord, either at Tenant's request or upon Landlord's election, in either case at Tenant's cost, an assignment of Landlord's entire right, title and interest in and to the Leased Premises, Land, Improvements, Equipment and all components thereof, in each case in recordable form and otherwise in conformity with local custom and free and clear of the lien of this Lease (including without limitation the release of any memoranda of Lease and/or any lease supplement recorded in connection therewith). The Leased Premises shall be appointed conveyed to Tenant by special warranty deed (or local equivalent) and in their then present physical condition. The special warranty deed (or local equivalent) shall convey title, free from encumbrances other than (A) Permitted Encumbrances, (B) liens or encumbrances created or suffered by Tenant or arising by reason of the failure of Tenant to observe or perform any proceeding brought of the terms, covenants or agreements herein provided to be observed and performed by Tenant, (C) any installments of Impositions then affecting the Leased Premises, and (D) this Lease. If any statute or if any rule of law shall limit the amount of such receiverfinal liquidated damages to less than the amount agreed upon, trustee or liquidator Landlord shall be appointed in any proceeding brought against entitled to the maximum amount allowable under such statute or rule of law; provided, however, Tenant and shall not be discharged within 90 days after such appointment or if Tenant shall consent entitled to or acquiesce in such appointment, (iii) if at any time Tenant discontinues operations at the Leased Premises or the Leased Premises shall have been abandoned or left unoccupied, and such condition shall have continued for 180 consecutive days, other than as a result receive an assignment of force majeure or (iv) if the Landlord's interest of Tenant in the Leased Premises Premises, Land, the Improvements, Equipment or part the components thereof unless Tenant shall have paid in full the Termination Value together with all Additional Payments. Tenant shall consummate the Note Purchase or the Property Purchase, as the case may be, in each instance within the time periods, if any, required for Landlord to pay off the Loan under the loan documents evidencing or otherwise securing the Loan. Tenant specifically acknowledges and agrees that its obligations under this Section 19(e) shall be levied upon absolute and unconditional under any and all circumstances and shall be paid and/or performed, as the case may be, without notice or attached in demand and without any proceeding and such process shall not be vacated abatement, reduction, diminution, setoff, defense, counterclaim or discharged (through bonding or otherwise) within 60 days after such levy or attachmentrecoupment whatsoever.
Appears in 1 contract
Samples: Lease (Performance Food Group Co)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an event of default under this Lease: ; (i) 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, 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), Lessee shall (Al) fail to make pay any payment of Basic Rent, Additional Rent additional rent or any other sum herein required to be paid by Tenant, Lessee hereunder and such failure shall continue for 10 days after notice to Lessee of such failure or (B2) fail to observe or perform any of Tenant’s other covenants, agreements or obligations hereunder or under the Service Agreement provision hereof and if any such failure shall continue as to (A) above for 10 days after receipt of written notice from Landlord that any such payment shall have become due, or as to (B) above for 30 days after Landlord shall have given notice to Tenant notice specifying Lessee of such failure (or if provided, that in the case of any such default which cannot be cured by the payment of money and cannot with due diligence be cured within such 30 30-day period owing to causes beyond the control of Tenantperiod, if Tenant Lessee shall fail to proceed commence promptly to cure the same and thereafter prosecute the curing of thereof with diligence, the time within which such default may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence and continuitydiligence), ; or (ii) if Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any federal or state bankruptcy law or any 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 Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy law or any similar federal or state law shall be filed in any court and Lessee shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within 90 days after the filing thereof; or (iii) if a receiver, trustee, trustee or liquidator of Tenant Lessee or of all or substantially all of the property assets of Tenant Lessee or of the Leased Premises or Lessee's estate therein shall be appointed in any proceeding brought by TenantLessee, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant Lessee and shall not be discharged within 90 days after such appointment appointment, or if Tenant Lessee shall consent to or acquiesce in such appointment, (iii) if at any time Tenant discontinues operations at the Leased Premises or the Leased Premises shall have been abandoned or left unoccupied, and such condition shall have continued for 180 consecutive days, other than as a result of force majeure ; or (iv) if the interest Premises shall have been left unoccupied and unattended for a period of Tenant in the Leased Premises or part thereof shall be levied upon or attached in any proceeding and such process shall not be vacated or discharged (through bonding or otherwise) within 60 days after such levy or attachment30 days.
Appears in 1 contract
Samples: Lease and Agreement (Southern States Capital Trust I)
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 Event of default Default under this Lease: (i) if Tenant, at any time during the continuance of this Lease a failure by Tenant to make (and regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity, equity or before any administrative tribunal, tribunal which have had or might have the effect of preventing Tenant from complying with the terms provisions of this Lease), shall ): (Ax) fail to make any payment of RentBasic Rent which continues unremedied for a period of ten (10) business days after written notice (“Nonpayment Notice”) thereof given to Tenant by Landlord, or (y) any payment of Additional Rent or any other sum herein required to be paid by Tenant, or Tenant which continues unremedied for a period of thirty (B30) fail to observe or perform any of Tenant’s other covenants, agreements or obligations hereunder or under the Service Agreement and if any failure shall continue as to (A) above for 10 days after receipt of written notice from Landlord that any such payment shall have become due, or as to (B) above for 30 days after Landlord shall have 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 provision in this Lease and such default shall continue for a period of thirty (30) days after written notice specifying such failure (thereof is given by Landlord to Tenant or if such default is of such a nature that it cannot be cured by the payment of money and cannot with due diligence reasonably be cured within such 30 day period owing of thirty (30) days, such period shall be extended for such longer time as is reasonably necessary not to causes beyond exceed one hundred eighty (180) days in the control 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, if Tenant shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such default with diligence and continuity), a receiver or (ii) if a receiver, trustee, or liquidator of trustee for Tenant or of all or substantially all of the property of Tenant or of the Leased Premises shall be appointed in any proceeding brought by Tenant, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant and shall not be discharged within 90 days after such appointment or if Tenant shall consent to or acquiesce in such appointment, (iii) if at any time Tenant discontinues operations at for the Leased Premises or approving a petition filed against Tenant which seeks relief under the Leased Premises shall have been abandoned bankruptcy or left unoccupiedother similar laws of the United States or any State, and such condition order, judgment or decree shall have continued for 180 consecutive daysremain in force, other than as a result of force majeure 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 (ivvi) if the estate or interest of Tenant in the Leased Premises or part thereof 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 (through bonding or otherwise90) within 60 business days after such levy or attachment. 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 the terms of this Lease. If Lender or its successor, assigns or purchasers have succeeded to the interests of Landlord under this Lease, Tenant shall 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 the payment of Additional Rent is not paid within thirty (30) days after the date which such Additional Rent is due and payable.
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 Event of default Default under this Lease: (i) if Tenant, at any time during the continuance of this Lease a failure by Tenant to make (and regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity, equity or before any administrative tribunal, tribunal which have had or might have the effect of preventing Tenant from complying with the terms provisions of this Lease), shall ): (Ax) fail to make any payment of RentBasic 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 Tenant by Landlord or Lender or Lender's designee, or (y) any payment of Additional Rent or any other sum herein required to be paid by Tenant, or Tenant which continues unremedied for a period of ten (B10) fail to observe or perform any of Tenant’s other covenants, agreements or obligations hereunder or under the Service Agreement and if any failure shall continue as to (A) above for 10 days after receipt of written notice from Landlord that any such payment shall have become due, or as to (B) above for 30 days after Landlord shall have a Nonpayment Notice is given to Tenant notice specifying 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, respectively, within the applicable time period set forth therein (unless such failure is cured within three (3) days after Landlord's second written request for such documents or compliance), or Tenant's breach of the provisions of Paragraph 17; (iii) Tenant's failure to comply with the terms of any Permitted Encumbrance, REA, Legal Requirement or 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 a nature that it cannot be cured by the payment of money and cannot with due diligence reasonably be cured within such 30 day period owing to causes beyond the control of Tenantthirty (30) days, if such period shall be extended for such longer time as is reasonably necessary provided that Tenant shall fail to proceed promptly has commenced to cure the same such default within said period of thirty (30) days and thereafter prosecute the curing 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 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 diligence and continuity)continuity to remedy such default; (v) Tenant or Guarantor shall (A) voluntarily be adjudicated a bankrupt or insolvent, (B) 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 (iiD) if voluntarily file a receivergeneral assignment for the benefit of creditors; (vi) a court shall enter an order, trusteejudgment or decree appointing, or liquidator with the voluntary consent of Tenant or of all Guarantor, a receiver or substantially all of the property of trustee for Tenant or of the Leased Premises shall be appointed in any proceeding brought by Tenant, Guarantor or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant and shall not be discharged within 90 days after such appointment or if Tenant shall consent to or acquiesce in such appointment, (iii) if at any time Tenant discontinues operations at for the Leased Premises or approving a petition filed against Tenant or Guarantor which seeks relief under the Leased Premises shall have been abandoned bankruptcy or left unoccupiedother similar laws of the United States or any State, and such condition order, judgment or decree shall have continued for 180 consecutive daysremain in force, other than as a result of force majeure undischarged or unstayed, ninety (iv90) if 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 estate or interest of Tenant in the Leased Premises or part thereof 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 (through bonding or otherwise90) within 60 days after such levy or attachment; or (ix) any breach or default of Guarantor under the Guaranty.
Appears in 1 contract
Samples: Lease Agreement (Dave & Busters Inc)
Conditional Limitations; Default Provisions. (a) 18.1. Any of the following occurrences or acts shall constitute an event Event of default Default under this LeaseSublease: (i) if TenantLessee, at any time during the continuance of this Lease 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 Tenant Lessee from complying with the terms of this LeaseSublease), shall (A1) fail to make any payment when due of Basic Rent, Additional Rent additional rent or any other sum herein required to be paid by TenantLessee and such failure shall continue for a period of 10 days after delivery by Lessor of written notice to Lessee that any such payment has 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 (B2) fail to observe or perform any of Tenant’s other covenants, agreements or obligations hereunder or under the Service Agreement and if any failure shall continue as to (A) above provision hereof for 10 15 days after receipt of written notice from Landlord that any such payment shall have become due, or as to (B) above for 30 days after Landlord Lessor shall have given to Tenant Lessee notice specifying of such failure (or if such provided that, in the case of any default cannot be cured by the payment of money and referred to in this clause (2) which cannot with due diligence be cured within such 30 15-day period owing to causes beyond the control of Tenantperiod, if Tenant Lessee shall fail to proceed promptly to cure the same and thereafter shall prosecute the curing 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 and continuityto cure such default, the time within which such failure may be cured shall be extended for such period as may be necessary to complete the curing of the same with diligence), ; or (ii) if Lessee shall file a receiverpetition in bankruptcy or for reorganization or for an arrangement pursuant to any present or future federal or state bankruptcy law or under any similar federal or state law, trustee, or liquidator of Tenant or of all or substantially all of the property of Tenant or of the Leased Premises shall be appointed in any proceeding brought by Tenant, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant and shall not be discharged within 90 days after such appointment or if Tenant shall consent to or acquiesce in such appointment, (iii) if at any time Tenant discontinues operations at the Leased Premises or the Leased Premises shall have been abandoned or left unoccupied, and such condition shall have continued for 180 consecutive days, other than as a result of force majeure or (iv) if the interest of Tenant in the Leased Premises or part thereof shall be levied upon or attached in any proceeding and such process shall not be vacated or discharged (through bonding or otherwise) within 60 days after such levy or attachment.or
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any 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 occurrences without demand upon or acts notice to Tenant: Landlord may give Tenant notice of Landlord's intention to terminate this Lease on a date specified in such notice (which date shall constitute an event be no sooner than ten (10) days after the date of default under the notice). Upon the date therein specified the Term and the estate hereby granted and all rights of Tenant hereunder shall expire and terminate 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. Landlord may, whether or not the Term of this Lease: Lease shall have been terminated pursuant to clause (i) if Tenantabove give Tenant notice to surrender the Leased Premises to Landlord on a date specified in such notice (which date shall be no sooner than ten (10) days after the date of the notice), at which time Tenant shall surrender and deliver possession of the Leased Premises to Landlord. Upon or at any time during after taking possession of the continuance Leased Premises, Landlord may remove any persons or property therefrom. Landlord shall be under no liability for or by reason of any such entry, repossession or removal. No such entry or repossession shall be construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such intention to Tenant pursuant to clause (i) above. After repossession of any of the Leased Premises pursuant to clause (ii) above, whether or not this Lease shall have been terminated pursuant to clause (i) above, Landlord may relet the Leased Premises or any part thereof to such tenant or tenants for such term or terms (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 reasonable discretion, may determine; and Landlord 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 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. 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 regardless in reletting any of the pendency Leased Premises, including fees and commissions of any bankruptcyattorneys, reorganizationarchitects, receivership, insolvency or other proceedings, in law, in equity, or before any administrative tribunal, which have or might have the effect of preventing agents and brokers. If Tenant from complying with the terms of this Lease), shall (A) fail to make any payment of any installment of Basic Rent or any Additional Rent after the date when each such payment is due, Tenant shall pay to Landlord, as Additional Rent, interest on the unpaid amount of Basic Rent or Additional Rent, at the Default Rate, such interest to accrue from the date such item of unpaid Basic Rent or Additional Rent was due until the date paid. Landlord may exercise any other right or remedy now or hereafter existing by law or in equity. In the event of any expiration or termination of this Lease or repossession of any of the Leased Premises by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord Basic Rent, Additional Rent or any and all other sum herein sums required to be paid by Tenant to and including the date of such expiration, termination or repossession and, thereafter, Tenant shall, until the end of what would have been the Term in the absence of such expiration, termination or repossession, and whether or not any of the Leased Premises shall have been relet, be liable to Landlord for and shall pay to Landlord as liquidated and agreed current damages: (i) Basic Rent, Additional Rent and all other sums which would be payable under this Lease by Tenant in the absence of such expiration, termination or repossession, less (ii) the net proceeds, if any, of any reletting pursuant to Paragraph 19 (a)(iii), after deducting from such proceeds all of Landlord's reasonable expenses in connection with such reletting (including all reasonable repossession costs, brokerage commissions, legal expenses, attorneys' fees, employees' expenses, costs of Alteration and expenses of preparation for reletting). Tenant hereby agrees to be and remain liable for all sums aforesaid and Landlord may recover such damages from Tenant and institute and maintain successive actions or legal proceedings against Tenant for the recovery of such damages. Nothing herein contained shall be deemed to require Landlord to wait to begin such action or other legal proceedings until the date when the Term would have expired by limitation had there been no such Event of Default. At any time after such expiration or sooner termination of this Lease pursuant to Paragraph 19 or pursuant to law or if Landlord shall have reentered the Leased Premises, as the case may be, whether or not Landlord shall have recovered any amounts under Paragraph 19(a)(iii) or 19(b), 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, the amount by which the Basic Rent and all Additional Rent reserved hereunder for the unexpired portion of the Term demised herein as if this Lease had not expired or been terminated exceeds the then fair and reasonable rental value of the Leased Premises for the same period, discounted to present worth at the annual rate of six percent (6%), minus any such monthly deficiencies previously recovered from Tenant under Paragraph 19(a)(iii). If any statute or rule of law governing a proceeding in which such liquidated final damages provided for in this Paragraph 19(c) are to be proved shall validly limit the amount 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. If an Event of Default shall have occurred and be continuing, whether or not this Lease shall have been terminated pursuant to this Paragraph 19 and whether or not Landlord shall have collected any liquidated damages pursuant to Paragraph 19(b), Landlord shall have the right to recover, by demand to Tenant and at Landlord's election, and Tenant shall pay to Landlord, as and for final liquidated damages (which, if requested, shall be paid concurrently), and in lieu of all liquidated damages beyond the date of such demand (it being agreed that it would be impossible accurately to determine actual damages) the Termination Value together with all Additional Payments. Upon payment of the Termination Value together with all Additional Payments, Tenant shall be entitled to receive from Landlord, either at Tenant's request or upon Landlord's election, in either case at Tenant's cost, an assignment of Landlord's entire right, title and interest in and to the Leased Premises, Land, Improvements, Equipment and all components thereof, in each case in recordable form and otherwise in conformity with local custom and free and clear of the lien of this Lease (including without limitation the release of any memoranda of Lease and/or any lease supplement recorded in connection therewith). The Leased Premises shall be conveyed to Tenant by special warranty deed (or local equivalent) and in their then present physical condition. The special warranty deed (or local equivalent) shall convey title, free from encumbrances other than (A) Permitted Encumbrances, (B) fail liens or encumbrances created or suffered by Tenant or arising by reason of the failure of Tenant to observe or perform any of the terms, covenants or agreements herein provided to be observed and performed by Tenant’s other covenants, agreements (C) any installments of Impositions then affecting the Leased Premises, and (D) this Lease. If any statute or rule of law shall limit the amount of such final liquidated damages to less than the amount agreed upon, Landlord shall be entitled to the maximum amount allowable under such statute or rule of law; provided, however, Tenant shall not be entitled to receive an assignment of Landlord's interest in the Leased Premises, Land, the Improvements, Equipment or the components thereof unless Tenant shall have paid in full the Termination Value together with all Additional Payments. Tenant specifically acknowledges and agrees that its obligations hereunder under this Section 19(d) shall be absolute and unconditional under any and all circumstances and shall be paid and/or performed, as the case may be, without notice or demand and without any abatement, reduction, diminution, setoff, defense, counterclaim or recoupment whatsoever. Notwithstanding anything to the contrary contained herein, if an Event of Default shall have occurred and, as a result thereof, Lender shall require Landlord, as borrower under the Service Agreement Loan, to purchase from Lender the Note or Notes evidencing the Loan and if any failure shall continue as to (A) above for 10 days after receipt of written notice from Landlord that any such payment otherwise pay off the Loan in full, Tenant shall have become duethe right to elect, at Tenant's sole cost and expense, to either (i) (x) purchase the Note or Notes directly from Lender and pay to Lender such amount required to pay off the Loan in full, together with any "make-whole" or other premiums under the Loan, and (y) thereafter pay to Landlord as Basic Rent under this Lease, the Basic Rent as set forth on Exhibit B-3 of this Lease less an amount equal to the monthly debt service that would have been payable under the Loan each month during the term hereof (B(x) above for 30 days after Landlord shall have given to Tenant notice specifying such failure and (or if such default cannot be cured by y) collectively, the payment of money and cannot with due diligence be cured within such 30 day period owing to causes beyond the control of Tenant, if Tenant shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such default with diligence and continuity"Note Purchase"), in which event, at Landlord's election, this Lease shall remain in full force and effect or (ii) pay to Landlord the Termination Value, together with all Additional Payments and any principal amount then outstanding under the Loan (to the extent such principal amount is not included as part of the Additional Payments) (the "Property Purchase"). Upon payment of the Termination Value together with all Additional Payments, Tenant shall be entitled to receive from Landlord, either at Tenant's request or upon Landlord's election, in either case at Tenant's cost, an assignment of Landlord's entire right, title and interest in and to the Leased Premises, Land, Improvements, Equipment and all components thereof, in each case in recordable form and otherwise in conformity with local custom and free and clear of the lien of this Lease (including without limitation the release of any memoranda of Lease and/or any lease supplement recorded in connection therewith). The Leased Premises shall be conveyed to Tenant by special warranty deed (or local equivalent) and in their then present physical condition. The special warranty deed (or local equivalent) shall convey title, free from encumbrances other than (A) Permitted Encumbrances, (B) liens or encumbrances created or suffered by Tenant or arising by reason of the failure of Tenant to observe or perform any of the terms, covenants or agreements herein provided to be observed and performed by Tenant, (C) any installments of Impositions then affecting the Leased Premises, and (D) this Lease. If any statute or rule of law shall limit the amount of such final liquidated damages to less than the amount agreed upon, Landlord shall be entitled to the maximum amount allowable under such statute or rule of law; provided, however, Tenant shall not be entitled to receive an assignment of Landlord's interest in the Leased Premises, Land, the Improvements, Equipment or the components thereof unless Tenant shall have paid in full the Termination Value together with all Additional Payments. Tenant shall consummate the Note Purchase or the Property Purchase, as the case may be, in each instance within the time periods, if any, required for Landlord to pay off the Loan under the loan documents evidencing or otherwise securing the Loan. Tenant specifically acknowledges and agrees that its obligations under this Section 19(e) shall be absolute and unconditional under any and all circumstances and shall be paid and/or performed, as the case may be, without notice or demand and without any abatement, reduction, diminution, setoff, defense, counterclaim or recoupment whatsoever. Additional Rights of Landlord and Tenant. No right or remedy conferred upon or reserved to Landlord in this Lease 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 contained in this Lease. No delay or failure by Landlord or Tenant to enforce its rights under this Lease shall be construed as a receiverwaiver, trusteemodification or relinquishment thereof. In addition to the other remedies provided in this Lease, Landlord and Tenant shall be entitled, to the extent permitted by applicable law, to injunctive relief in case of the violation or attempted or threatened violation of any of the provisions of this Lease, or liquidator to specific performance of any of the provisions of this Lease. Tenant or hereby waives and surrenders for itself and all those claiming under it, including creditors of all kinds, any right and privilege which it or substantially all any of the property of Tenant them may have under any present or future law to redeem any of the Leased Premises shall be appointed in or to have a continuance of this Lease after termination of this Lease or of Tenant's right of occupancy or possession pursuant to any proceeding brought by court order or any provision hereof. Landlord hereby waives any right to distrain or levy upon Trade Fixtures or any property of Tenant and any Landlord's lien or similar lien upon Trade Fixtures and any other property of Tenant regardless of whether such lien is created or otherwise. Landlord agrees at the request of Tenant, to execute a waiver of any Landlord's or if similar lien for the benefit of any such receiver, trustee present or liquidator shall be appointed future holder of a security interest in or landlord of any proceeding brought against Tenant of Trade Fixtures or any other personal property of Tenant. Landlord acknowledges and shall not be discharged within 90 days after such appointment or if Tenant shall consent to or acquiesce in such appointment, (iii) if at any time Tenant discontinues operations at the Leased Premises or the Leased Premises shall have been abandoned or left unoccupied, and such condition shall have continued for 180 consecutive days, other than as a result of force majeure or (iv) if the interest of Tenant agrees in the Leased Premises future to acknowledge (in a written form reasonably satisfactory to Tenant) to such persons and entities at such times and for such purposes as Tenant may reasonably request that the Trade Fixtures are Tenant's property and not part of the Improvements (regardless of whether or part thereof shall be levied upon to what extent such Trade Fixtures are affixed to the Improvements) or attached in any proceeding and such process shall not be vacated or discharged (through bonding or otherwise) within 60 days after such levy or attachmentotherwise subject to the terms of this Lease.
Appears in 1 contract
Samples: www.sec.gov
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 Event of default Default under this Lease: (i) if Tenant, at any time during the continuance of this Lease a failure by Tenant to make (and regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity, equity or before any administrative tribunal, tribunal which have had or might have the effect of preventing Tenant from complying with the terms provisions of this Lease), shall ): (Ax) fail to make any payment of RentBasic 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 (12) month period), or (y) any payment of Additional Rent or any other sum herein required to be paid by Tenant, or Tenant which continues unremedied for a period of thirty (B30) fail to observe or perform any of Tenant’s other covenants, agreements or obligations hereunder or under the Service Agreement and if any failure shall continue as to (A) above for 10 days after receipt of written notice from Landlord that any such payment shall have become due, or as to (B) above for 30 days after Landlord shall have a Nonpayment Notice 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 (12) month period); (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 specifying such failure (thereof is given by Landlord to Tenant or if such default is of such a nature that it cannot be cured by the payment of money and cannot with due diligence reasonably be cured within such 30 day period owing of thirty (30) days, such period shall be extended for such longer time as is reasonably necessary not to causes beyond exceed ninety (90) days in the control 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, if Tenant shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such default with diligence and continuity), a receiver or (ii) if a receiver, trustee, or liquidator of trustee for Tenant or of all or substantially all of the property of Tenant or of the Leased Premises shall be appointed in any proceeding brought by Tenant, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant and shall not be discharged within 90 days after such appointment or if Tenant shall consent to or acquiesce in such appointment, (iii) if at any time Tenant discontinues operations at for the Leased Premises or approving a petition filed against Tenant which seeks relief under the Leased Premises shall have been abandoned bankruptcy or left unoccupiedother similar laws of the United States or any State, and such condition order, judgment or decree shall have continued for 180 consecutive daysremain in force, other than as a result of force majeure undischarged or unstayed, ninety (iv90) if 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) the estate or interest of Tenant in the Leased Premises or part thereof 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 (through bonding or otherwise90) within 60 business days after such levy or attachment; or (vii) 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 the terms of this Lease. If Lender or its successor, assigns or purchasers have succeeded to the interests of Landlord under this Lease, Tenant shall 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 the payment of Additional Rent is not paid within thirty (30) days after the date which such Additional Rent is due and payable.
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 Event of default Default under this Lease: (i) if Tenant, at any time during the continuance of this Lease a failure by Tenant to make (and regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity, equity or before any administrative tribunal, tribunal which have had or might have the effect of preventing Tenant from complying with the terms provisions of this Lease), shall ): (Ax) fail to make any payment of RentBasic 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 Tenant by Landlord or Lender or Lender's designee, or (y) any payment of Additional Rent or any other sum herein required to be paid by Tenant, or Tenant which continues unremedied for a period of ten (B10) fail to observe or perform any of Tenant’s other covenants, agreements or obligations hereunder or under the Service Agreement and if any failure shall continue as to (A) above for 10 business days after receipt of written notice from Landlord that any such payment shall have become due, or as to (B) above for 30 days after Landlord shall have 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, the provisions of Section 14 a. or Section 14 b, c, d, or e; (iii) 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) business days after written notice specifying such failure (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 be cured by the payment of money and cannot with due diligence reasonably be cured within such 30 day period owing of thirty (30) business days, such period shall be extended for such longer time as is reasonably necessary provided that Tenant has commenced to causes beyond the control 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, if Tenant shall fail (B) or voluntarily consent to proceed promptly to cure the same and thereafter prosecute appointment of a receiver or trustee for itself or for any of the curing Leased Premises, (C) voluntarily file a petition seeking relief under the bankruptcy or other similar laws of such default with diligence and continuity)the United States, any state or any jurisdiction, or (iiD) if voluntarily file a receivergeneral assignment for the benefit of creditors; (iv) a court shall enter an order, trusteejudgment or decree appointing, or liquidator with the voluntary consent of Tenant or any guarantor of all Tenant's obligations hereunder, a receiver or substantially all of the property of trustee for Tenant or any guarantor of the Leased Premises shall be appointed in any proceeding brought by Tenant, 's obligations hereunder or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant and shall not be discharged within 90 days after such appointment or if Tenant shall consent to or acquiesce in such appointment, (iii) if at any time Tenant discontinues operations at for the Leased Premises or approving a petition filed against Tenant or any guarantor of Tenant's obligations hereunder which seeks relief under the Leased Premises shall have been abandoned bankruptcy or left unoccupiedother similar laws of the United States or any State, and such condition order, judgment or decree shall have continued for 180 consecutive daysremain in force, other than as a result undischarged or unstayed, ninety (90) business days after it is entered; (v) Tenant or any guarantor of force majeure Tenant's obligations hereunder shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; or (ivvi) if the estate or interest of Tenant in the Leased Premises or part thereof 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 (through bonding or otherwise90) within 60 business days after such levy or attachment.
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 a "failure" or acts shall "default") will constitute an event Event of default Default under this Lease: (i) if Tenant, at any time during the continuance of this Lease a failure by Tenant to make (and regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity, equity or before any administrative tribunal, tribunal which have had or might have the effect of preventing Tenant from complying with the terms provisions of this Lease), shall ): (Ax) fail to make any payment of Rent, Basic Rent which continues unremedied for a period of 3 business days after written notice ("Nonpayment Notice") thereof given to Tenant by Landlord; or (y) any payment of Additional Rent or any other sum herein required to be paid by Tenant, or Tenant which continues unremedied for a period of 15 business days after a Nonpayment Notice is given to Tenant by Landlord; (Bii) fail failure of Tenant to observe or perform any deliver to Landlord evidence of Tenant’s other covenants, agreements or obligations hereunder or under renewal and replacement Policies not less than 30 days prior to the Service Agreement expiration date(s) of such Policies as required by Section 14(b) hereof and if any failure such default shall continue as to (A) above for a period of 10 days after receipt of the written notice from thereof is given by Landlord that any such payment shall have become dueto Tenant, (iii) failure by Tenant to perform and observe, or as to (B) above a violation or breach of, any other provision in this Lease and such default continues for a period of 30 days after written notice thereof is given by Landlord shall have given to Tenant notice specifying such failure (or if such default is of such a nature that it cannot be cured by the payment of money and cannot with due diligence reasonably be cured within such period of 30 day days, such period owing will be extended for such longer time as is reasonably necessary provided that Tenant has commenced to causes beyond 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; (iv) Tenant: (A) is voluntarily adjudicated a bankrupt or insolvent; (B) or voluntarily consent to the control 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, 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, if Tenant shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such default with diligence and continuity), a receiver or (ii) if a receiver, trustee, or liquidator of trustee for Tenant or of all or substantially all of the property of Tenant or of the Leased Premises shall be appointed in any proceeding brought by Tenant, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant and shall not be discharged within 90 days after such appointment or if Tenant shall consent to or acquiesce in such appointment, (iii) if at any time Tenant discontinues operations at for the Leased Premises or approving a petition filed against Tenant which seeks relief under the Leased Premises shall have been abandoned bankruptcy or left unoccupiedother similar laws of the United States or any State, and such condition shall have continued for order, judgment or decree remains in force, undischarged or unstayed, 180 consecutive days, other than as a result of force majeure business days after it is entered; (vi) Tenant in any insolvency proceedings is liquidated or (ivdissolved or voluntarily commences proceedings towards its liquidation or dissolution;(vii) if the estate or interest of Tenant in the Leased Premises or part thereof shall be is levied upon or attached in any proceeding and such estate or interest is about to be sold or transferred or such process shall is not be vacated or discharged (through bonding or otherwise) within 60 180 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.
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, at any time during the continuance 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), Lessee shall (A1) fail to make pay any payment of Basic Rent, Additional Rent additional charges, additional rent or any other sum herein required to be paid by Tenant, Lessee hereunder and such failure shall continue for eight days after receipt of notice by Lessee of such failure or (B2) fail to observe or perform any of Tenant’s other covenants, agreements or obligations hereunder or under the Service Agreement provision hereof and if any such failure shall continue as to (A) above for 10 28 days after receipt of written notice from Landlord that any such payment shall have become due, or as to (B) above for 30 days after Landlord shall have given to Tenant notice specifying by Lessee of such failure (or if provided, that in the case of any such default which cannot be cured by the payment of money and cannot with due diligence be cured within such 30 28 day period owing to causes beyond the control of Tenantperiod, if Tenant Lessee shall fail to proceed commence promptly to cure the same and thereafter prosecute the curing of thereof with diligence, the time within which such default may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence and continuitydiligence); (ii) if Lessee or Guarantor shall become a debtor in a case filed under Chapter 7 of the Bankruptcy Code, or 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; or if Lessee or Guarantor shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any federal or state bankruptcy law or any 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 Lessee or Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy law or any similar federal or state law shall be filed in any court and Lessee or Guarantor, as the case may be, shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged within 90 days after the filing thereof or if an order for relief shall be entered with respect to Lessee or Guarantor as a debtor in any bankruptcy proceeding; (iiiii) if a receiver, trustee, trustee or liquidator of Tenant Lessee or Guarantor or of all or substantially all of the property assets of Tenant Lessee or Guarantor or of the Leased Premises or Lessee's estate therein shall be appointed in any proceeding brought by TenantLessee or 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 Guarantor and shall not be discharged within 90 days after such appointment appointment, or if Tenant Lessee or Guarantor, as the case may be, shall consent to or acquiesce in such appointment, (iii) if at any time Tenant discontinues operations at the Leased Premises or the Leased Premises shall have been abandoned or left unoccupied, and such condition shall have continued for 180 consecutive days, other than as a result of force majeure or ; (iv) if the interest Premises shall have been left unoccupied and unattended for a period of Tenant 30 days; (v) if any representation or warranty of Lessee or Guarantor set forth in the Leased Premises this Lease or part thereof shall be levied upon or attached in any proceeding certificate delivered pursuant thereto shall prove to be incorrect in any material and such process adverse respect as of the time when the same shall have been made and, in each case, (1) the facts shall not be vacated conformed to the representation or discharged warranty promptly after the earlier of (through bonding x) written notice of such incorrectness from Lessor to Lessee or otherwise(y) within 60 days after the Lessee obtaining actual knowledge of such levy incorrectness, or attachment(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 (vi) an event of default by Lessee under the Amended and Restated Lease Agreement dated as of the date hereof by and between the parties hereto with respect to the premises located at 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxxxxx, New Jersey.
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 an event of default under this Lease: terms herein contained on its part to be performed, (iother than Net Basic Rent and additional rent herein), Landlord may, (but need not) if after five (5) days upon prior written notice to Tenant, at except in the case of an emergency where notice is required, perform the same for the Tenant without waiving or releasing Tenant from any time during the continuance obligations of Tenant in this 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 (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 (A24) fail to make any payment of Rent, Additional Rent or any other sum herein required to be paid by Tenant, or (B) fail to observe or perform any of Tenant’s other covenants, agreements or obligations hereunder or under the Service Agreement and if any failure shall continue as to (A) above for 10 days hours after receipt of written notice from Landlord that or its agent of the same, then Landlord may (but need not) after such notice without waiving or releasing Tenant from any such payment obligations of Tenant in this Lease contained perform the same for Tenant, and Landlord shall have become the right to 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 expense or liability incurred, by Landlord, in the performance of same, shall be deemed to be additional rent payable by Tenant hereunder, and may, at Landlord's option, be added to 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 (5%) percent above the then current prime interest rate as published in the Wall Street Journal, which interest shall commence to 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 (B5) above for 30 days so long as Tenant has commenced to correct such 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 expiration of the thirty (30) day grace period above. This exception does not apply to 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 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 (in addition to any other right or remedy of Landlord) have given to the same rights and remedies in the event of the nonpayment of any such sums by Tenant notice specifying such failure (or if such as in the case of default cannot be cured by tenant in the payment of money and cannot with due diligence be cured within such 30 day period owing to causes beyond the control of Tenant, if Tenant shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such default with diligence and continuity), or (ii) if a receiver, trustee, or liquidator of Tenant or of all or substantially all of the property of Tenant or of the Leased Premises shall be appointed in any proceeding brought by Tenant, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant and shall not be discharged within 90 days after such appointment or if Tenant shall consent to or acquiesce in such appointment, (iii) if at any time Tenant discontinues operations at the Leased Premises or the Leased Premises shall have been abandoned or left unoccupied, and such condition shall have continued for 180 consecutive days, other than as a result of force majeure or (iv) if the interest of Tenant in the Leased Premises or part thereof shall be levied upon or attached in any proceeding and such process shall not be vacated or discharged (through bonding or otherwise) within 60 days after such levy or attachmentNet Basic Rent.
Appears in 1 contract
Samples: Agreement (Micronetics 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, at any time during the continuance 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), Lessee shall (Al) fail to make pay any payment of Basic Rent, Additional Rent additional rent or any other sum herein required to be paid by Tenant, Lessee hereunder and such failure shall continue for 10 days after notice to Lessee of such failure or (B2) fail to observe or perform any of Tenant’s other covenants, agreements or obligations hereunder or under the Service Agreement provision hereof and if any such failure shall continue as to (A) above for 10 days after receipt of written notice from Landlord that any such payment shall have become due, or as to (B) above for 30 days after Landlord shall have given notice to Tenant notice specifying Lessee of such failure (or if provided, that in the case of any such default which cannot be cured by the payment of money and cannot with due diligence be cured within such 30 30-day period owing to causes beyond the control of Tenantperiod, if Tenant Lessee shall fail to proceed commence promptly to cure the same and thereafter prosecute the curing of thereof with diligence, the time within which such default may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence and continuitydiligence), ; or (ii) if Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any federal or state bankruptcy law or any 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 Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy law or any similar federal or state law shall be filed in any court and Lessee shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within 90 days after the filing thereof; or (iii) if a receiver, trustee, trustee or liquidator of Tenant Lessee or of all or substantially all of the property assets of Tenant Lessee or of the Leased Premises or Lessee's estate therein shall be appointed in any proceeding brought by TenantLessee, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant Lessee and shall not be discharged within 90 days after such appointment appointment, or if Tenant Lessee shall consent to or acquiesce in such appointment, (iii) if at any time Tenant discontinues operations at the Leased Premises or the Leased Premises shall have been abandoned or left unoccupied, and such condition shall have continued for 180 consecutive days, other than as a result of force majeure ; or (iv) if the interest Premises shall have been left unoccupied and unattended for a period of Tenant in the Leased Premises or part thereof shall be levied upon or attached in any proceeding and such process shall not be vacated or discharged (through bonding or otherwise) within 60 days after such levy or attachment30 days.
Appears in 1 contract
Samples: Lease and Agreement (Southern States Cooperative 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 Event of default Default under this Lease: (i) if Tenant, at any time during the continuance of this Lease a failure by Tenant to make (and regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity, equity or before any administrative tribunal, tribunal which have had or might have the effect of preventing Tenant from complying with the terms provisions of this Lease), shall ): (Ax) fail to make any payment of RentBasic 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 Tenant by Landlord or Lender or Lender's designee, or (y) any payment of Additional Rent or any other sum herein required to be paid by Tenant, or Tenant which continues unremedied for a period of ten (B10) fail to observe or perform any of Tenant’s other covenants, agreements or obligations hereunder or under the Service Agreement and if any failure shall continue as to (A) above for 10 business days after receipt of written notice from Landlord that any such payment shall have become due, or as to (B) above for 30 days after Landlord shall have 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 default shall continue for a period of thirty (30) business days after written notice specifying such failure (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 be cured by the payment of money and cannot with due diligence reasonably be cured within such 30 day period owing of thirty (30) business days, such period shall be extended for such longer time as is reasonably necessary provided that Tenant has commenced to causes beyond the control 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, if Tenant shall fail (B) or voluntarily consent to proceed promptly to cure the same and thereafter prosecute appointment of a receiver or trustee for itself or for any of the curing Leased Premises, (C) voluntarily file a petition seeking relief under the bankruptcy or other similar laws of such default with diligence and continuity)the United States, any state or any jurisdiction, or (iiD) if voluntarily file a receivergeneral assignment for the benefit of creditors; (iv) a court shall enter an order, trusteejudgment or decree appointing, or liquidator with the voluntary consent of Tenant or any guarantor of all Tenant's obligations hereunder, a receiver or substantially all of the property of trustee for Tenant or any guarantor of the Leased Premises shall be appointed in any proceeding brought by Tenant, 's obligations hereunder or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant and shall not be discharged within 90 days after such appointment or if Tenant shall consent to or acquiesce in such appointment, (iii) if at any time Tenant discontinues operations at for the Leased Premises or approving a petition filed against Tenant or any guarantor of Tenant's obligations hereunder which seeks relief under the Leased Premises shall have been abandoned bankruptcy or left unoccupiedother similar laws of the United States or any State, and such condition order, judgment or decree shall have continued for 180 consecutive daysremain in force, other than as a result undischarged or unstayed, ninety (90) business days after it is entered; (v) Tenant or any guarantor of force majeure Tenant's obligations hereunder shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; or (ivvi) if the estate or interest of Tenant in the Leased Premises or part thereof 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 (through bonding or otherwise90) within 60 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 fails to maintain any of the Insurance required by Section 14 of this Lease.
Appears in 1 contract
Samples: Lease Agreement (Dave & Busters Inc)
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, at any time during the continuance 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), If Lessee shall (A1) fail to make pay any payment of Basic Rent, Additional Rent additional rent or any other sum herein within three (3) business days of when required to be paid by Tenant, Lessee hereunder or (B2) fail to observe or perform any of Tenant’s other covenants, agreements or obligations hereunder or under the Service Agreement provision hereof and if any such nonmonetary failure shall continue as to for thirty (A30) above for 10 days after receipt of written notice from Landlord that any such payment shall have become due, or as to (B) above for 30 days after Landlord shall have given to Tenant notice specifying Lessee of such failure (or if provided that, in the case of any such default failure which cannot be cured by the payment of money and cannot with due diligence be cured within such 30 thirty (30) day period owing to causes beyond the control of Tenantperiod, if Tenant Lessee shall fail to proceed 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 eighty (180) days, unless a longer period is agreed to by Lessor; If any representation or warranty of Lessee set forth in any certificate provided by Lessee pursuant to 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 default with diligence inaccuracy and continuity)Lessor restored to the position it would have enjoyed had such representation or warranty been accurate at the time it was made; If Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any federal or state law or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors, or if a petition proposing the adjudication of Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy law or any similar federal or state law shall be filed in any court and Lessee shall consent to or acquiesce in the filing thereof or such petition shall not be discharged or denied within ninety (ii90) if days after the filing thereof; If a receiver, trusteetrustee or conservator of Lessee, or liquidator of Tenant or of all or substantially all of the property assets of Tenant Lessee, or of the Leased Premises or Lessee's estate therein shall be appointed in any proceeding brought by TenantLessee, or if any such receiver, trustee or liquidator conservator shall be appointed in any proceeding brought against Tenant Lessee and shall not be discharged within 90 ninety (90) days after such appointment appointment, or if Tenant Lessee shall consent to or acquiesce in such appointment, (iii) if at any time Tenant discontinues operations at ; If the Leased Premises or the Leased Premises shall have been either (x) abandoned or left unoccupied(y) vacated for a period in excess of thirty (30) consecutive days (not including periods of repair or restoration following a casualty or condemnation or retenanting periods in connection with an existing sublease or assignment agreement); 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 (60) consecutive days (unless payment is not then required by the judgment or the order issued in connection with the judgment); Lessee shall be liquidated or 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 sell or transfer all or substantially all of its assets, except as allowed herein; Lessee shall fail to renew or replenish the Hold Back Amount in accordance with the requirements of Section 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 condition obligation is created or secured (including 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 continued happened, be continuing and any grace period hereunder shall have expired, Lessor shall have the right to give Lessee notice of Lessor's termination of the Lease Term. Upon the giving of such notice, the 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 180 consecutive daysthe expiration of the Lease Term, and all rights of Lessee hereunder shall expire and terminate, but Lessee shall remain liable as hereinafter provided. If an Event of Default shall have happened and be continuing, Lessor shall have the immediate right, whether or not the Lease Term shall have been terminated pursuant to Subsection 7.1(b), to reenter and repossess the Premises and the right to remove all persons and property (subject to Section 3.2) therefrom by summary proceedings, ejectment or any other than legal action or in any lawful manner Lessor determines to be necessary or desirable. Lessor shall be under no liability by reason of any such reentry, repossession or removal. No such reentry, repossession or removal shall be construed as an election by Lessor to terminate the Lease Term unless a result notice of force majeure such termination is given to Lessee pursuant to Subsection 7.1(b) or unless such termination is decreed by a court. At any time or from time to time after a reentry, repossession or removal pursuant to Subsection 7.1(c), whether or not the Lease Term shall have been terminated pursuant to Subsection 7.1(b), Lessor may (ivbut shall be under no obligation to) if relet the interest Premises for the account of Tenant Lessee, in the Leased Premises name of Lessee or part thereof shall be levied upon Lessor or attached otherwise, without notice to Lessee, for such term or terms and on such conditions and for such uses as Lessor, in its absolute discretion, may determine. Lessor may collect any proceeding and rents payable by reason of such process reletting. Lessor shall not be vacated liable for any failure to relet the Premises or discharged (through bonding for any failure to collect any rent due upon any such reletting. No expiration or termination of the Lease Term pursuant to Subsection 7.1(b), by operation of law or otherwise, and no reentry, repossession or removal pursuant to Subsection 7.1(c) or otherwise, and no reletting of the Premises pursuant to Subsection 7.1(d) or otherwise, shall relieve Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, reentry, repossession, removal or reletting. 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 any expiration or termination of the Lease Term or reentry 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 to be paid by Lessee, in each case to and including the date of such expiration, termination, reentry, repossession or removal, and, thereafter, Lessee shall, until the end of what would have been the Lease Term in the absence of such expiration, termination, reentry, 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, reentry, 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 Lessee pursuant to Subsection 7.1(d). 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, reentry, repossession or removal, and Lessor shall be entitled to recover the same from Lessee on each such date. At any time after any such expiration or termination of the Lease Term or reentry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, whether or not Lessor shall have collected any liquidated and agreed current damages pursuant to Subsection 7.1(f)(i), Lessor shall be entitled to recover from Lessee, and Lessee shall pay to Lessor on demand, as and for liquidated and agreed final damages for Lessee's default and in lieu of all liquidated and agreed current damages beyond the date of such demand (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, to date to which Lessee shall have satisfied in full its obligations under Subsection 7.1(f)(i) to pay liquidated and agreed current damages) for what would be the then unexpired Lease Term in the absence of such expiration, termination, reentry, repossession or removal, discounted at the rate of 5% per annum, over (b) the then fair rental value of the Premises, discounted at the rate of 5% per annum for the same period. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, 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 60 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 levy 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 attachmentits 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.
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 Event of default Default under this Lease: (i) if Tenant, at any time during the continuance of this Lease a failure by Tenant to make (and regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity, equity or before any administrative tribunal, tribunal which have had or might have the effect of preventing Tenant from complying with the terms provisions of this Lease), shall ): (Ax) fail to make any payment of RentBasic 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 (12) month period), or (y) any payment of Additional Rent or any other sum herein required to be paid by Tenant, or Tenant which continues unremedied for a period of thirty (B30) fail to observe or perform any of Tenant’s other covenants, agreements or obligations hereunder or under the Service Agreement and if any failure shall continue as to (A) above for 10 days after receipt of written notice from Landlord that any such payment shall have become due, or as to (B) above for 30 days after Landlord shall have a Nonpayment Notice 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 (12) month period); (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 specifying such failure (thereof is given by Landlord to Tenant or if such default is of such a nature that it cannot be cured by the payment of money and cannot with due diligence reasonably be cured within such 30 day period owing of thirty (30) days, such period shall be extended for such longer time as is reasonably necessary not to causes beyond exceed ninety (90) days in the control 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, if Tenant shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such default with diligence and continuity), a receiver or (ii) if a receiver, trustee, or liquidator of trustee for Tenant or of all or substantially all of the property of Tenant or of the Leased Premises shall be appointed in any proceeding brought by Tenant, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant and shall not be discharged within 90 days after such appointment or if Tenant shall consent to or acquiesce in such appointment, (iii) if at any time Tenant discontinues operations at for the Leased Premises or approving a petition filed against Tenant which seeks relief under the Leased Premises shall have been abandoned bankruptcy or left unoccupiedother similar laws of the United States or any State, and such condition order, judgment or decree shall have continued for 180 consecutive daysremain in force, other than as a result of force majeure undischarged or unstayed, ninety (iv90) if 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) the estate or interest of Tenant in the Leased Premises or part thereof 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 (through bonding or otherwise90) within 60 business days after such levy or attachment; or (vii) 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 the terms of this Lease. If Lender or its successor, assigns or purchasers have succeeded to the interests of Landlord under this Lease, Tenant shall 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 the payment of Additional Rent is not paid within thirty (30) days after the date which such Additional Rent is due and payable.
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Conditional Limitations; Default Provisions. If any Event of Default shall have occurred, Landlord shall have the right at its option, then or at any time thereafter (a) Any so long as Landlord commences one or more of the remedies set forth below at a time when an Event of Default is continuing), to do any one or more of the following occurrences without demand upon or acts notice to Tenant: Landlord may give Tenant notice of Landlord's intention to terminate this Lease on a date specified in such notice (which date shall constitute an event be no sooner than thirty (30) days after the date of default under the notice). Upon the date therein specified the Term and the estate hereby granted and all rights of Tenant hereunder shall expire and terminate 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. Landlord may, whether or not the Term of this Lease: Lease shall have been terminated pursuant to clause (i) if Tenantabove give Tenant notice 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 Landlord. Upon or at any time during after taking possession of the continuance Leased Premises, Landlord may remove any persons or property therefrom. Landlord shall be under no liability for or by reason of any such entry, repossession or removal. No such entry or repossession shall be construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such intention to Tenant pursuant to clause (i) above. After repossession of any of the Leased Premises pursuant to clause (ii) above, whether or not this Lease shall have been terminated pursuant to clause (i) above, Landlord may relet the Leased Premises or any part thereof to such tenant or tenants for such term or terms (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 discretion, may determine; and Landlord 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 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. 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 regardless in reletting any of the pendency Leased Premises, including fees and commissions of any bankruptcyattorneys, reorganizationarchitects, receivership, insolvency or other proceedings, in law, in equity, or before any administrative tribunal, which have or might have the effect of preventing agents and brokers. If Tenant from complying with the terms of this Lease), shall (A) fail to make any payment of Rent, Additional any installment of Basic Rent or any Additional Rent after the date when each such payment is due, Tenant shall pay to Landlord, as Additional Rent, interest on the unpaid amount of Basic Rent or Additional Rent, at the Default Rate, such interest to accrue from the date such item of unpaid Basic Rent or Additional Rent was due until the date paid. Landlord may exercise any other sum herein right or remedy now or hereafter existing by law or in equity. In the event of any expiration or termination of this Lease or repossession of any of the Leased Premises by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord Basic Rent and all Additional Rent required to be paid by TenantTenant to and including the date of such expiration, termination or (B) fail to observe repossession and, thereafter, Tenant shall, until the end of what would have been the Term in the absence of such expiration, termination or perform repossession, and whether or not any of Tenant’s other covenants, agreements or obligations hereunder or under the Service Agreement and if any failure shall continue as to (A) above for 10 days after receipt of written notice from Landlord that any such payment shall have become due, or as to (B) above for 30 days after Landlord shall have given to Tenant notice specifying such failure (or if such default cannot be cured by the payment of money and cannot with due diligence be cured within such 30 day period owing to causes beyond the control of Tenant, if Tenant shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such default with diligence and continuity), or (ii) if a receiver, trustee, or liquidator of Tenant or of all or substantially all of the property of Tenant or of the Leased Premises shall be appointed in any proceeding brought by Tenant, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant and shall not be discharged within 90 days after such appointment or if Tenant shall consent to or acquiesce in such appointment, (iii) if at any time Tenant discontinues operations at the Leased Premises or the Leased Premises shall have been abandoned or left unoccupiedrelet, be liable to Landlord for and such condition shall have continued for 180 consecutive days, other than pay to Landlord as a result of force majeure or liquidated and agreed current damages: (ivi) if the interest of Basic Rent and Additional Rent which would be payable under this Lease by Tenant in the Leased Premises absence of such expiration, termination or part thereof repossession, less (ii) the net proceeds, if any, of any reletting pursuant to Paragraph 19(a)(iii), after deducting from such proceeds all of Landlord's reasonable expenses in connection with such reletting (including all reasonable repossession costs, brokerage commissions, legal expenses, attorneys' fees, employees' expenses, costs of Alteration and expenses of preparation for reletting). Tenant hereby agrees to be and remain liable for all sums aforesaid and Landlord may recover such damages from Tenant and institute and maintain successive actions or legal proceedings against Tenant for the recovery of such damages. Nothing herein contained shall be levied upon deemed to require Landlord to wait to begin such action or attached in other legal proceedings until the date when the Term would have expired by limitation had there been no such Event of Default. At any proceeding and such process shall not be vacated or discharged (through bonding or otherwise) within 60 days time after such levy expiration or attachmentsooner termination of this Lease pursuant to Paragraph 19 or pursuant to law or if Landlord shall have reentered the Leased Premises, as the case may be, whether or not Landlord shall have recovered any amounts under Paragraph 19(a)(iii) or 19(b), 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, an amount equal to the Basic Rent and all Additional Rent reserved hereunder for the unexpired portion of the Term demised herein as if this Lease had not expired or been terminated, discounted to present worth at the annual rate of six percent (6%), minus any such monthly deficiencies previously recovered from Tenant under Paragraph 19(a)(iii). If any statute or rule of law governing a proceeding in which such liquidated final damages provided for in this Paragraph 19(c) are to be proved shall validly limit the amount 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
Samples: Lease (Old National Bancorp /In/)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an event of default under this Lease: ; (i) if Tenantfailure to (1) make any Rent Payment or pay any Deferred Rent, at any time during the continuance of this Lease (and regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency additional rent 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 (A) fail to make any payment of Rent, Additional Rent or any other sum herein as and when required to be paid by Tenant, Lessee hereunder and such failure shall continue for 8 days after notice to Lessee of such failure or (B2) fail to observe or perform any of Tenant’s other covenants, agreements or obligations hereunder or under the Service Agreement provision hereof and if any such failure shall continue as to (A) above for 10 28 days after receipt notice to Lessee of written notice from Landlord that any such payment shall have become due, or as to (B) above for 30 days after Landlord shall have given to Tenant notice specifying such failure (or if provided, that in the case of any such default which cannot be cured by the payment of money and cannot with due diligence be cured within such 30 28-day period owing to causes beyond the control of Tenantperiod, if Tenant Lessee shall fail to proceed commence promptly to cure the same and thereafter prosecute the curing of thereof with diligence, the time within which such default may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence and continuitydiligence), ; or (ii) if any representation or warranty of Lessee set forth in any notice, certificate, demand or request 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 (iii) if Lessee shall become a debtor in a case filed under Chapter 7 of the Bankruptcy Code, or 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; or if Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any federal or state bankruptcy law or any 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 Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy law or any similar federal or state law shall be filed in any court and Lessee shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within 120 days after the filing thereof; or (iv) if a receiver, trustee, trustee or liquidator of Tenant Lessee or of all or substantially all of the property assets of Tenant Lessee or of the Leased Premises or Lessee’s estate therein shall be appointed in any proceeding brought by TenantLessee, as the case may be, or if any such receiver, trustee or liquidator shall be appointed in any proceeding proceeding. brought against Tenant Lessee and shall not be discharged within 90 120 days after such appointment appointment, or if Tenant Lessee shall consent to or acquiesce in such appointment, ; or (iiiv) if at any time Tenant discontinues operations at the Leased Premises or the Leased Premises shall have been abandoned left unoccupied and unattended for a period of 30 days; or left unoccupied, and such condition shall have continued for 180 consecutive days, other than (vi) if as a result of force majeure a default by Lessee hereunder the lessor under the Ground Lease shall have the right to terminate or (iv) if to re-enter and take possession of the interest of Tenant in the Leased Premises or part thereof shall be levied upon or attached in any proceeding and such process shall not be vacated or discharged (through bonding or otherwise) within 60 days after such levy or attachmentpremises leased thereunder.
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