Default and Remedies. 25.1 The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant: (a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue; (b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion; (c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center; (d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and (e) Any other event herein specified to be an Event of Default under this Lease. 25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant: (a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus (b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus (c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus (d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and (e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time. 25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent. 25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements. 25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises. 25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows: (a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant; (b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting; (c) to the payment of the cost of any alterations of and repairs to the Premises; and (d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting. 25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default. 25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease. 25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced. 25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 6 contracts
Samples: Lease Agreement (Formfactor Inc), Lease Agreement (Formfactor Inc), Lease Agreement (Formfactor Inc)
Default and Remedies. 25.1 The occurrence of any A. If Purchaser fails to close this transaction in the time established for reasons other than Seller’s default or delay, and Seller agrees to delay/extend the date of the following shall constitute an "EVENT OF DEFAULT" under Closing in accordance with this Lease by Tenant:
(a) Any failure by Tenant Section 7.A., Purchaser shall, if Seller is willing to close, be required to pay when due any interest on the original Total Purchase Price at a rate equal to 18% per annum from the date on which the Closing was originally scheduled to occur to and including the date on which the Closing actually occurs. Further, all prorations shall be made as of the Rent required date the Closing was originally scheduled. Nothing in this Agreement, however, shall require Seller to delay/extend the date of the Closing beyond the time set forth in this Agreement or prevent Seller from treating Purchaser as being in default if Purchaser fails to close within that time.
B. If Purchaser fails to perform this Agreement within the time specified (including payment of all deposits) or otherwise becomes in default under the terms and provisions hereof, the deposit(s) paid and agreed to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default Purchaser shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default retained by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of TenantSeller as liquidated damages and not as a penalty, consideration for the execution of this Agreement and in full settlement of any claims, whereupon Purchaser and Seller shall be relieved of all obligations under this Agreement. Seller and Purchaser have agreed that Seller’s actual damages in accordance the event of default by Purchaser would be extremely difficult or impossible to determine. Therefore, by signing this Agreement, the parties acknowledge that the deposit(s) paid and agreed to be paid by Purchaser, with all Legal Requirementsaccrued interest thereon, is (are) agreed upon, after negotiation, as the parties’ reasonable estimate of Seller’s liquidated damages in the event of a breach of this Agreement by Purchaser.
25.5 C. If Landlord (Seller defaults in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession the performance of the Premises pursuant to legal proceedings or pursuant to any this Agreement, Purchaser will give Seller 20 days’ notice provided by lawof default, and if Landlord Seller has not elected cured within such period, then as Purchaser’s sole remedies, Purchaser may elect either (1) to cancel and terminate this Lease, Landlord may continue this Lease Agreement and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations receive a return of the Premisesdeposit(s) paid under this Agreement to date, whereupon both parties shall be released from any further obligations hereunder (except as may be specifically provided herein to the contrary), or (2) Purchaser can elect to seek specific performance of Seller’s obligations hereunder.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment D. Each of the cost parties acknowledges and agrees that the remedies of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder liquidated damages or specific performance for Seller and the residueremedies of specific performance or termination for Purchaser are proper and mutually negotiated remedies for the respective parties and provide mutual, if any, shall be held by Landlord satisfactory and applied in payment of future rent as the same may become due adequate compensation and payable hereunder. In no event shall Tenant be entitled consideration to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession each of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice parties and that such remedies take into account the peculiar expenses and risks of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless each of the fact that no legal proceeding or action may have been filed or commencedparties.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 6 contracts
Samples: Condominium Purchase Agreement, Condominium Purchase Agreement, Condominium Purchase Agreement
Default and Remedies. 25.1 (a) While a Default exists, the Collateral Agent shall at the written request and direction of the Credit Agent on behalf of the Required Lenders, without notice to or demand upon the Company: (i) foreclose or otherwise enforce the Collateral Agent's security interest for the benefit of the Secured Parties in the Collateral in any manner permitted by law or provided for hereunder; (ii) sell or otherwise dispose of the Collateral or any part thereof at one or more public or private sales or at any broker's board or on any securities exchange, whether or not such Collateral is present at the place of sale, for cash or credit or future delivery (provided that the Required Lenders have approved the terms of any sale on credit or for future delivery) and without assumption of any credit risk, on such terms and in such manner as the Collateral Agent may determine; (iii) require the Company to assemble the Collateral and/or books and records relating thereto and make such available to the Collateral Agent at a place to be designated by the Collateral Agent; (iv) enter into property where any Collateral or books and records relating thereto are located and take possession thereof with or without judicial process; and (v) prior to the disposition of the Collateral, prepare it for disposition in any manner and to the extent the Collateral Agent deems appropriate. Whether or not the Collateral Agent exercises any right given pursuant to this Paragraph 16, upon the occurrence of any Default, the Collateral Agent on behalf of the Secured Parties shall have as to any Collateral all other rights and remedies provided for herein and all rights and remedies of a secured party under the Illinois Uniform Commercial Code and, in addition thereto and not in lieu thereof, all other rights or remedies at law or in equity existing or conferred upon the Collateral Agent on behalf of the Secured Parties by other jurisdictions or other applicable law or given to the Collateral Agent on behalf of the Secured Parties pursuant to any security agreement, other instrument or agreement heretofore, now, or hereafter given as security for the Company's obligations hereunder.
(b) The occurrence Collateral Agent is authorized, at any such sale, if it deems it advisable so to do, to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing for their own account, for investment, and not with a view to the distribution or sale of any of the following shall constitute an "EVENT OF DEFAULT" under Collateral. Upon any sale or other disposition pursuant to this Lease by Tenant:
(a) Any failure by Tenant to pay when due any of Security Agreement, the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord Collateral Agent shall have the right to immediately terminate this Lease deliver, assign and transfer to the purchaser thereof the Collateral or portion thereof so sold or disposed of and all proceeds thereof shall, as set forth in Xxxxxxxxx 00 xxxxx, xx promptly transmitted to the Credit Agent for allocation to the Secured Parties in accordance with the Credit Agreement. Each purchaser at any such sale or other disposition shall hold the Collateral free from any claim or right of whatever kind, including any equity or right of redemption of the Company, and the Company specifically waives (to the extent permitted by law) all rights of Tenant hereunder redemption, stay or appraisal which it has or may have under any rule of law or statute now existing or hereafter adopted. The Collateral Agent shall give the Company only such notice and shall publish such notice as may be required by giving written notice the Illinois Uniform Commercial Code or by other applicable law of the intention to Tenant of its election make any such public or private sale or sale at broker's board or on a securities exchange. Any such public sale shall be held at such time or times within the ordinary business hours and at such place or places permitted by the Illinois Uniform Commercial Code. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may determine. The Collateral Agent may adjourn any public or private sale or cause the same to do so. If Landlord shall elect be adjourned from time to terminate this Lease, then it may recover from Tenant:
(a) The worth time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the award Collateral on credit or for future delivery (the terms of which shall be approved by the Required Lenders), (i) the Collateral so sold may be retained by the Collateral Agent until the selling price is paid by the purchaser thereof, (ii) none of the unpaid rent payable hereunder which had been earned at Secured Parties shall incur any liability in case of the date failure of such termination; plus
purchaser to take up and pay for the Collateral so sold, and (biii) The worth in case of any such failure, such Collateral may again be sold as provided herein. Nothing contained in this Security Agreement shall prohibit any Lenders from purchasing the Collateral at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plussale.
(c) The worth at Company hereby appoints the time Collateral Agent as the Company's attorney-in-fact, effective as of the award date of any Unmatured Default (and during the continuance thereof) for the purpose of taking all actions on behalf of the amount by Company contemplated or required under the terms of the Acknowledgement Agreements with respect to Pledged Servicing and executing any instruments which the unpaid rent for Collateral Agent may deem necessary or advisable to accomplish the balance purposes hereof, which appointment as attorney-in-fact is irrevocable and coupled with an interest. Without limiting the generality of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) aboveforegoing, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and Collateral Agent shall have the right and power to make repairs receive, endorse and collect all checks made payable to and alterations the order of the Premises.
25.6 If Landlord shall elect Company representing any payment on account of the principal of or interest on any of the Mortgage Loans covered by such Pledged Servicing or on account of the terms of the Servicing Agreements governing such Pledged Servicing and to relet as aforesaidgive full discharge for the same. Furthermore, then rentals received by Landlord therefrom shall be applied as follows:
(a) notwithstanding anything herein to the payment of contrary, with respect to any indebtedness of Tenant Collateral covered by an executed Acknowledgement Agreement, the Collateral Agent is authorized to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs carry out and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder comply with, and the residue, if any, shall be held by Landlord Company approves and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demandacknowledges, all costs and expenses incurred by Landlord in connection with requirements regarding such reletting and in making any such alterations and repairs which are not covered a sale set forth therein or as may otherwise be imposed by the rentals received from counterparty to such relettingan Acknowledgement Agreement and agrees that such a sale in accordance with the requirements of an Acknowledgement Agreement is commercially reasonable.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 3 contracts
Samples: Security and Collateral Agency Agreement (Pulte Homes Inc/Mi/), Security and Collateral Agency Agreement (Pulte Homes Inc/Mi/), Security Agreement (Pulte Homes Inc/Mi/)
Default and Remedies. 25.1 The occurrence (a) In addition to any Events of Default set forth in any other Loan Documents, any of the following events or conditions shall constitute an "EVENT OF DEFAULT" under “Event of Default”: (i) if legal or equitable title to, or any interest in, the Premises sold or transferred in whole or in part, or if any rentals from the Premises are assigned to anyone while this Lease by Tenant:
Mortgage shall remain a lien thereon; (aii) Any failure by Tenant of Mortgagor to pay when due perform or comply with the terms of any lease of the Rent required Premises or any part thereof; or (iii) default by Mortgagor under any mortgage affecting any part of the Premises which is, or is claimed to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overduebe, superior in lien to this Mortgage;
(b) A failure by Tenant Mortgagee, at its sole election, may declare all or any part of any Indebtedness not payable on demand to observe be immediately due and perform payable without demand or notice of any other provision kind upon the happening of any Event of Default. The provisions of this Lease paragraph are not intended in any way to affect any rights of Mortgagee with respect to any Indebtedness which may now or hereafter be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completionpayable on demand;
(c) Any default Upon the occurrence of an Event of Default, whether or not foreclosure proceedings have been instituted, Mortgagor shall, upon demand, surrender possession of the Premises to Mortgagee. If Mortgagor remains in possession of the Premises after the happening of an Event of Default, the possession shall be as tenant of Mortgagee and Mortgagor agrees to pay in advance upon demand to Mortgagee a reasonable monthly rental for the Premises or portion so occupied. Mortgagee may dispossess, by Tenant under summary proceedings or otherwise, any other lease between Landlord and Tenant for other premises tenant or Mortgagor defaulting in the Centerpayment of rent. If a receiver is appointed, this covenant shall inure to the benefit of such receiver. Notwithstanding any provision of law to the contrary, Mortgagee may, at its option, foreclose this Mortgage subject to the rights of tenants of the Premises which are subordinate to the lien of this Mortgage;
(d) The abandonment or vacation holder of the Premisesthis Mortgage, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assigneein any action to foreclose it, no default shall be deemed entitled to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; andappointment of a receiver;
(e) Any other event herein specified to If the Indebtedness shall exceed the amount secured by this Mortgage, or as evidenced by a combination of instruments that singularly or in part collectively may be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaidless than said secured amount but combined exceed said secured amount, Mortgagee, in addition to any and all other remedies available to Landlord at law or in equityforeclosure hereof, Landlord shall have the right to immediately terminate xxx and collect the excess in the same action as commenced for the foreclosure hereof, and recover a money judgment for said excess with all the rights attendant thereto, including, without limitation, the issuance of an execution to the Sheriff for collection thereof, and Mortgagor hereby waives any defense based upon a claim that in doing so, Mortgagee is splitting its cause of action if it seeks to foreclose this Lease Mortgage for part of the Indebtedness and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:at law for another part;
(af) The worth In the event of foreclosure of this Mortgage, the Premises may, at the time option of Mortgagee, be sold in one or more parcels, notwithstanding any provision of law to the award of the unpaid rent payable hereunder which had been earned at the date of such termination; pluscontrary;
(bg) The worth at Upon the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence happening of an Event of Default by TenantDefault, Landlord shall also have the rightMortgagee may pursue, with take or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and refrain from pursuing any such property may be removed and stored in a public warehouse or elsewhere at the cost and remedy for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession collection of the Premises pursuant Indebtedness, including an action to legal proceedings foreclose this Mortgage or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet sell the Premises or any part thereof pursuant to procedures provided by applicable law. Any reference in this Mortgage to an action or parts thereof for such term right of Mortgagee in regard to or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) a foreclosure or a foreclosure proceeding shall be deemed to the payment of the cost of any alterations of and repairs to the Premisesinclude a sale and/or proceeding under this subsection; and
(dh) Upon the happening of an Event of Default, Mortgagee may exercise its rights of enforcement with respect to the payment of rent due Fixtures and unpaid hereunder and Personal Property under the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such relettingUCC.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 3 contracts
Samples: Mortgage and Security Agreement (Griffin Land & Nurseries Inc), Mortgage and Security Agreement (Griffin Land & Nurseries Inc), Mortgage and Security Agreement (Griffin Land & Nurseries Inc)
Default and Remedies. 25.1 Section 24.01. The occurrence of any one or more of the following shall events shall, at Landlord's option, constitute an "EVENT OF DEFAULT" under event of default of this Lease by TenantLease:
(a) Any failure by if Tenant shall fail to pay when due any of the Rent required to be paid Rental or other sums payable by Tenant hereunder where such failure continues for five (5) business within 10 days after Tenant's receipt of written notice that the same is overduethereof from Landlord (provided, however, if such event of default shall occur more than once in every 6 months period, Landlord shall not be required to provide any written notice of default and an event of default shall occur as and when such Rental or other sums becomes due and payable);
(b) A failure by if Tenant shall fail to perform or observe and perform any other provision term hereof or any of this Lease to be observed or performed by Tenant where the Rules and Regulations and such failure continues shall continue for thirty (30) more than 30 days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by if Tenant under any other lease between Landlord and Tenant for other premises in the Centerfails to take occupancy within 30 days following substantial completion;
(d) The abandonment if Tenant deserts or vacation vacates any substantial portion of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and;
(e) Any other event herein specified to be an Event if any petition is filed by or against Tenant or any guarantor of Default Tenant's obligations under this LeaseLease under any section or chapter of the present or any future Federal Bankruptcy Code or under any similar law or statute of the United States or any state thereof;
(f) if Tenant or any guarantor of Tenant's obligations under this Lease becomes insolvent or makes a transfer in fraud of creditors;
(g) if Tenant or any guarantor of this Lease makes an assignment for the benefit of creditors; or
(h) if a receiver, custodian, or trustee is appointed for Tenant or for any of the assets of Tenant which appointment is not vacated within 30 days of the date of such appointment.
25.2 In the Section 24.02. If an event of default occurs, at any Event time thereafter Landlord may do one or more of Default by Tenant as aforesaid, in addition to the following without any and all other remedies available to Landlord at law additional notice or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenantdemand:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating Terminate this Lease, to re-enter in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to do so, Landlord may, without notice and remove all property without prejudice to any other remedy Landlord may have, enter upon and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant and expel or remove Tenant and its effects without being liable to legal proceedings prosecution or pursuant any claim for damages therefor; and Tenant shall be liable to any notice provided by law, Landlord for all loss and if Landlord has not elected to terminate this Lease, damage which Landlord may continue this Lease and may either recover all rental as it becomes due or suffer by reason of such termination, whether through inability to relet the Premises or otherwise, including any part or parts thereof loss of Rental for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations remainder of the Premises.
25.6 If Landlord Term. Any such loss of Rental shall elect to relet as aforesaid, then rentals be offset by any Rental received by Landlord therefrom shall be applied as follows:
(a) to a result of reletting the payment Premises during the remainder of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;the Term.
(b) Terminate this Lease, in which event Tenant's event of default shall be considered a total breach of Tenant's obligations under this Lease and Tenant immediately shall become liable for such damages for such breach amount, equal to the payment total of:
(1) the costs of recovering the Premises;
(2) the unpaid Rental earned as of the date of termination, plus interest thereon at a rate per annum from the due date equal to 5% percent over the Prime Rate; provided, however, that such interest shall never exceed the Highest Lawful Rate;
(3) the amount of the excess of
(i) the total Rental and other benefits which Landlord would have received under the Lease for the remainder of the Term, at the rates then in effect, together with all costs and other expenses incurred occurred by Landlord in connection with Tenant's default, over
(ii) the Fair Market Rate of the balance of the Term as of the time of such reletting;breach, which excess shall be discounted at the rate of 8% per annum to the then present value; and
(4) all other sums of money and damages owing by Tenant and Landlord.
(c) Enter upon and take possession of the Premises as Tenant's agent without terminating this Lease and without being liable to prosecution or any claim for damages therefor, and Landlord may relet the payment of Premises as Tenant's agent and receive the Rental therefor, in which event Tenant shall pay to Landlord on demand the cost of renovating, repairing, and altering the Premises for a new Tenant or Tenants and any alterations deficiency that may arise by reason of such reletting; provided, however, that Landlord shall have no duty to relet the Premises and repairs Landlord's failure to relet the Premises; andPremises shall not release or affect Tenant's liability for Rental or for damages.
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Do whatever Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during do under this Lease and may enter the Premises without being liable to prosecution or any monthclaim for damages therefor, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthlyaccomplish this purpose. Tenant shall also pay reimburse Landlord as soon as ascertained immediately upon demand for any expenses which Landlord incurs in thus effecting compliance with this Lease on Tenant's behalf, and upon demandLandlord shall not be liable for any damages suffered by Tenant from such action, all costs and expenses incurred whether caused by the negligence of Landlord or otherwise.
Section 24.03. No act or thing done by Landlord or its agents during the Term shall constitute an acceptance of an attempted surrender of the Premises, and no agreement to accept a surrender of the Premises or to terminate this Lease shall be valid unless made in connection with such reletting writing and in making any such alterations and repairs which are not covered signed by the rentals received from such reletting.
25.7 Landlord. No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as constitute an election by Landlord to terminate this Lease Lease, unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdictionTenant. Notwithstanding any such reletting without termination by Landlord because of Tenant's defaultor re-entry or taking possession, Landlord may at any time after such reletting elect to thereafter terminate this Lease because for a previous default. Landlord's acceptance of Rental following an event of default hereunder shall not be construed as a waiver of such event of default.
25.8 Nothing contained in . No waiver by Landlord of any breach of this Article Lease shall constitute a waiver of any other violation or breach of any time of the terms hereof. Forbearance by Landlord to enforce one or more of the remedies herein provided upon a breach hereof shall not constitute a waiver of any other breach of the Lease.
Section 24.04. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver is in writing and signed by Landlord. Nor shall any custom or practice which may evolve between the parties in the administration of the terms of this Lease be construed to waive or lessen Landlord's right to recover damages by reason insist upon strict performance of Landlord's efforts the terms of this Lease. The rights granted to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as Landlord in this Lease elsewhere providedshall be cumulative of every other right or remedy which Landlord may otherwise have at law or in equity or by statue, to indemnification against liability for injury and the exercise of one or damage to persons more rights or property occurring prior to a termination remedies shall not prejudice or impair the current or subsequent exercise of this Leaseother rights or remedies.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 3 contracts
Samples: Office Lease Agreement (Select Medical Corp), Office Lease Agreement (Select Medical Corp), Office Lease Agreement (Select Medical Corp)
Default and Remedies. 25.1 18.1 The occurrence of any one of the following shall constitute an "EVENT OF DEFAULT" be deemed a Material Default by Licensee under this Lease by TenantAgreement:
(a) Any failure 18.1.1 Failure by Tenant Licensee to pay when due any of the Rent fee or other sum required to be paid by Tenant hereunder where under the terms of this Agreement and such failure default continues for five a period of ten (510) business days after Tenant's receipt of written notice that the same is overduethereof to Licensee;
(b) A failure 18.1.2 Failure by Tenant Licensee to perform or observe and perform any other term, condition, covenant, obligation or provision of this Lease to be observed or performed by Tenant where Agreement and such failure default continues for a period of thirty (30) days after written notice thereof from Landlord; provided, GTE (provided that if the nature of such default is not curable within such that the same cannot with due diligence be cured within said thirty (30) day period, Tenant shall not the period will be deemed extended if Licensee commences to be in cure such default if it shall within said such thirty (30) day period commence and proceeds diligently thereafter to effect such during and thereafter diligently prosecutes the same to completioncure);
18.1.3 The filing of any tax or mechanic's lien against GTE's poles which is not bonded or discharged within thirty (c30) Any default by Tenant under any other lease between Landlord and Tenant for other premises in days of the Centerdate Licensee receives notice that such lien has been filed;
(d) The abandonment 18.1.4 Licensee's voluntary or vacation involuntary bankruptcy;
18.1.5 Licensee's knowing use or maintenance of its Attachments in violation of any law or regulation, or in aid of any unlawful act or undertaking;
18.1.6 If any authorization which may be required of the PremisesLicensee by any governmental or private authority for the placement, provided that if Tenant has vacated the Premises and operation or maintenance of Licensee's Attachments is actively seeking a subtenant denied or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Leaserevoked.
25.2 18.2 In the event of a Material Default, GTE, without any Event further notice to the Licensee (except where expressly provided for below or required by applicable law) may do any one or more of Default by Tenant as aforesaidthe following:
18.2.1 Perform, in addition on behalf and at the expense of Licensee, any obligation of Licensee under this Agreement which Licensee has failed to any perform and all other remedies available to Landlord at law or in equity, Landlord of which GTE shall have given Licensee notice, the right cost of which performance shall be paid by Licensee to immediately terminate GTE upon demand;
18.2.2 Terminate this Lease and all rights of Tenant hereunder Agreement by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises Licensee and remove all property Licensee's Attachments and persons therefrom, and any such property may be removed and stored store them in a public warehouse or elsewhere at the cost expense of and for the account of TenantLicensee without GTE being deemed guilty of trespass or conversion, all in accordance with all Legal Requirementsand without GTE becoming liable for any loss or damages to Licensee occasioned thereby; or
18.2.3 Exercise any other legal or equitable right or remedy which GTE may have.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all 18.3 Any costs and expenses incurred by Landlord GTE (including, without limitation, reasonable attorneys' fees) in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, enforcing this Agreement shall be held repaid to GTE by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith Licensee upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a 18.4 Upon termination of this LeaseAgreement by GTE because of a material default by Licensee, Licensee shall remain liable to GTE for any and all fees, other payments and damages which may be due or sustained prior to such termination, all reasonable costs, fees and expenses, including, without limitation, reasonable attorneys' fees incurred by GTE in pursuit of its remedies hereunder, and additional liquidated damages which shall be an amount equal to one full year of Pole Attachment fees.
25.9 Subject only to Article 31, if Landlord 18.5 All rights and remedies of each party set forth in this Agreement shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing be cumulative and none shall exclude any other covenant right or remedy, now or hereafter allowed by or available under any statute, ordinance, rule of this Leasecourt, Tenant shall pay or the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding common law, either at law or action may have been filed in equity, or commencedboth.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 3 contracts
Samples: Interconnection, Resale and Unbundling Agreement, Interconnection, Resale and Unbundling Agreement (Dti Holdings Inc), Interconnection, Resale and Unbundling Agreement (Dti Holdings Inc)
Default and Remedies. 25.1 The occurrence 11.1 In the event of default in the payment of rent or any installment thereof, whether the same be demanded or not, or if the LESSEE shall commit or suffer any waste to be committed in or upon said premises, or if default shall be made by LESSEE in the performance or observance of any other covenant or agreement or condition of this lease, or if LESSEE shall be dispossessed, or if LESSEE shall at any time make general assignment for the following benefit of creditors, or if LESSEE shall constitute make an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due insolvent assignment, or if LESSEE shall file a voluntary petition in bankruptcy or be adjudged a bankrupt, and in the event that such default or condition, or any of the Rent required to be paid by Tenant hereunder where such failure continues them, shall exist for five a period of ten (510) business days after Tenant's receipt of days, then LESSOR may give LESSEE written notice that of such default. Said notice shall be deemed delivered when made pursuant to the same is overdue;terms of Article 12 hereof.
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed 11.2 In the event the default or performed by Tenant where such failure continues for defaults are not cured in their entirety within thirty (30) days after written notice the delivery of said notice, then LESSOR, its successor or assigns, may reenter the demised property and take and hold full and complete possession thereof from Landlord; provided, that if the nature of without such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation reentry working a forfeiture of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required rents to be paid hereunder; and
(e) Any other event herein specified or the covenants to be an Event performed. Thereafter, LESSOR may recover from LESSEE such damages as LESSOR may have suffered by reason of Default under this Leasesuch default, together with attorneys' fees and other costs. LESSOR agrees, however, to take all reasonable steps to minimize the damages.
25.2 11.3 In the event of the above default or defaults are not cured within the thirty (30) day period, LESSOR may, also at its option, without any Event of Default by Tenant as aforesaidfurther notice, in addition to any reenter the demised premises and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately cancel and terminate this Lease lease.
11.4 LESSEE expressly waives any notice of proceedings required by law to be given or taken preliminary to reentry by LESSOR in the event of default, save and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent except for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
thirty (d30) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to timeday notice hereinabove described.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 2 contracts
Samples: Surface Lease Agreement (Grant Hartford Corp), Surface Lease Agreement (Grant Hartford Corp)
Default and Remedies. 25.1 The occurrence of any of 21.1 In the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenantevent:
(a) Any failure by Tenant shall at any time fall to pay any item of Rent when due any of the Rent required to be paid by Tenant hereunder where and such failure continues for five a period of ten (510) business days after Tenant's ’s receipt of written notice that Tenant failed to pay the same is overdue;amount when due; provided, however, Landlord shall not be obligated to notify Tenant of Tenant’s failure to pay any item of Rent due under this Lease more than once during any twelve (12) month period during the Term; or
(b) A failure by Tenant shall fail to keep, perform or observe and perform any other provision of this Lease covenant, agreement, condition or undertaking hereunder and shall fall to be observed or performed by Tenant where remedy such failure continues for thirty default within ten (3010) days after written notice thereof from Landlordto Tenant; provided, that or if the nature of such default is such one that the same cannot with due diligence be cured within said periodwill take longer than ten (10) days to remedy, Tenant shall not be deemed falls to be in commence curing such default if it shall within said period commence ten (10) days and/or falls diligently to pursue such during and thereafter diligently prosecutes the same cure to completion;; or
(c) Any default The Premises shall be vacated by Tenant under for any other lease between period for which Tenant has not paid its Rent; Landlord shall have the right, without further notice to or demand, to re-enter and Tenant for other premises in the Center;
(d) The abandonment or vacation take exclusive possession of the Premises, provided that if with or without force or legal process, and to refuse to allow Tenant has vacated to enter the same or have possession thereof; to change the locks on the doors to the Premises; take possession of any furniture or other property in or upon the Premises (Tenant hereby waiving the benefit of all exemptions by law), sell the same at public or private sale without notice and is actively seeking a subtenant or assigneeapply the proceeds thereof to the costs of sale, no default shall be deemed to exist under this Lease so long as Tenant is paying payment of damages and payment of the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default rent due under this Lease.
25.2 In the event of ; and pursue any Event of Default other remedy permitted by law all without being liable to Tenant as aforesaid, in addition for any damages or to any and all other remedies available to Landlord prosecution therefor. Additionally, Landlord, at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its Landlord’s election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenantmay:
(a) The worth at act as agent of Tenant to relet the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent Premises for the balance of the Lease Term or for a shorter or longer term after and receive the time rents therefor, applying them first to the payment of damages suffered to the award exceeds the amount of such rental loss which Premises and rents due and to become due under this Lease, Tenant proves could be reasonably avoidedremaining liable for and hereby agreeing to pay Landlord any deficiency; plusor
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, cancel and terminate the "worth at the time remaining Term of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue free of this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom thereafter this Lease shall be applied as follows:
(a) null and void and the rents in such case shall be apportioned and paid on and up to the payment date of such entry. Thereafter both parties shall be released and relieved from any of any indebtedness of and all obligations thereafter to accrue hereunder. Tenant to Landlord other than rent due hereunder shall be liable for all loss and damage resulting from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;breach or default; or
(c) treat such default as an anticipatory breach of this Lease and, as liquidated damages for such default, be entitled to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residuedifference, if any, shall be held by Landlord and applied in payment of future rent as between the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion sum which, at the time of such rentals received from such reletting during any month, which is applied to termination for anticipatory breach represents the payment then present worth (computed at seven percent per year) of rent hereunder, be less than the rent excess aggregate rents and additional rents payable hereunder during that month by Tenantwould have accrued over the balance of the Lease Term including extensions, then Tenant shall pay had such deficiency to Landlord forthwith upon demandTerm not been prematurely terminated, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by over the rentals received from such reletting.
25.7 No re-entry or taking possession aggregate market rental value of the Premises by Landlord under this Article shall be construed as an election to terminate this over the Term (including extensions) that the Lease unless a written notice would have run had it not been prematurely terminated. The foregoing provisions override and control any conflicting provisions of such intention is given to Tenant or unless Section 93.002 of the termination thereof be adjudged by a court Texas Property Code of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right1990, as in this Lease elsewhere providedwell as any successor statute. TO THE EXTENT, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this LeaseAND ONLY IN THE CIRCUMSTANCES REQUIRED BY TEXAS LAW, LANDLORD SHALL USE OBJECTIVELY REASONABLE EFFORTS TO RELET THE PREMISES AFTER AN EVENT OF DEFAULT AND THE TERMINATION OF TENANT’S RIGHT TO POSSESSION OF THE PREMISES (INCLUDING, WITHOUT LIMITATION, SUCH CONCESSIONS AND FREE RENT AS LANDLORD DEEMS NECESSARY OR DESIRABLE); PROVIDED, HOWEVER, THAT TENANT EXPRESSLY AGREES THAT LANDLORD MAY OFFER ALL OR ANY PART OF THE PREMISES FOR ANY PERIOD, TO ANY TENANT AND FOR ANY USE WHICH LANDLORD MAY ELECT, AND THAT LANDLORD MAY OFFER FOR LEASE ANY VACANT SPACE IN THE BUILDING (OR IN OTHER BUILDINGS OWNED BY LANDLORD OR LANDLORD’S AFFILIATES) BEFORE OFFERING THE PREMISES FOR LEASE. TENANT FURTHER AGREES THAT IF WITHIN THIRTY (30) DAYS AFTER TERMINATION OF TENANT’S RIGHT TO POSSESSION OF THE PREMISES, LANDLORD PLACES A “FOR LEASE” SIGN AT THE PREMISES, OR LANDLORD ENTERS INTO A LISTING AGREEMENT WITH A REAL ESTATE AGENT FOR THE LEASE OF THE PREMISES, OR LANDLORD ADVERTISES THE LEASED PREMISES FOR LEASE IN THE AUSTIN-AMERICAN STATESMAN (OR OTHER NEWSPAPER WITH A GENERAL CIRCULATION IN AUSTIN, TEXAS) AT LEAST ONCE PER MONTH, AND LANDLORD SHOWS THE PREMISES TO PROSPECTIVE TENANTS WHO REQUEST TO SEE THE PREMISES, LANDLORD CONCLUSIVELY SHALL BE DEEMED TO HAVE USED OBJECTIVELY REASONABLE EFFORTS TO RELET THE PREMISES AND TO HAVE FULFILLED ANY OBLIGATION TO MITIGATE DAMAGES BY REASON OF TENANT’S DEFAULT. TENANT ACKNOWLEDGES AND AGREES THAT LANDLORD SHALL NOT BE REQUIRED TO ACCEPT ANY TENANT WHICH TENANT MAY SUGGEST TO LANDLORD, AND THAT LANDLORD MAY UTILIZE IN RELETTING THE PREMISES THE SAME UNDERWRITING STANDARDS, AND STANDARDS OF REPUTATION IN THE COMMUNITY, WHICH LANDLORD APPLIES GENERALLY IN LEASING SPACE WITHIN THE BUILDING. TENANT FURTHER EXPRESSLY ACKNOWLEDGES AND UNDERSTANDS THAT LANDLORD CONSIDERS MANY FACTORS IN THE SELECTION OF TENANTS, INCLUDING WITHOUT LIMITATION, EXCLUSIVITY PROVISIONS IN EXISTING LEASES AND RESTRICTIVE COVENANTS, THE BALANCE OF USES WITHIN THE BUILDING, THE TENANT MIX WITHIN THE BUILDING, AND THE REPUTATION AND LOCAL, REGIONAL, OR NATIONAL NAME RECOGNITION AND CREDIT STANDING OF PROSPECTIVE TENANTS.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 2 contracts
Samples: Industrial Space Lease (XBiotech Inc.), Industrial Space Lease (XBiotech Inc.)
Default and Remedies. 25.1 (a) The occurrence of any one or more of the following events shall constitute an "EVENT OF DEFAULT" under a material default and breach of this Lease Sublease by TenantSublessee:
(ai) Any The failure by Tenant Sublessee to make any payment of rent or any other payment required to be made by Sublessee hereunder, as and when due, where such failure shall continue for a period of three (3) days after written notice thereof by Sublessor to Sublessee;
(ii) The abandonment (but not vacation of the Subleased Premises provided Sublessee continue to timely pay when all rent due hereunder) of the Subleased Premises by Sublessee;
(iii) The failure by Sublessee to observe or perform any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision covenants, conditions or provisions of this Lease Sublease to be observed or performed by Tenant Sublessee, where such failure continues shall continue for thirty a period of twenty (3020) days after written notice thereof from Landlord; provided, that if by Sublessor to Sublessee. If the nature of such default is such that the same cannot with due diligence be reasonably cured within said such twenty (20) day period, Tenant Sublessee shall not be deemed to be in default hereunder if it Sublessee shall within said such period commence such during cure and thereafter diligently prosecutes prosecute the same to completion, provided Master Landlord has not declared a material default and breach of the Master Lease as a result of Sublessee's failure to cure such default;
(civ) Any default The making by Tenant Sublessee of any general assignment or general arrangement for the benefit of creditors; or the filing by or against Sublessee of a petition to have Sublessee adjudged a bankrupt, or a petition for reorganization or arrangement under any other lease between Landlord and Tenant for other premises in the Center;
law, now existing or hereafter amended or enacted, relating to bankruptcy or insolvency (d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or whichunless, in the ordinary course case of affairsa petition filed against Sublessee, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord Sublessee has not elected to terminate this Leaseconsented to, Landlord may continue this Lease and may either recover all rental as it becomes due or relet admitted the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations material allegation of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant said petition is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.dismissed within thirty
Appears in 2 contracts
Samples: Sublease Agreement (Ubid Inc), Sublease Agreement (Ubid Inc)
Default and Remedies. 25.1 The occurrence In the event of a default by Purchaser under the terms of this Agreement, Auctioneer shall disburse the Xxxxxxx Money to Seller, and Seller shall be entitled, as its sole and exclusive remedy hereunder, to retain the Xxxxxxx Money as full liquidated damages for such default of Purchaser, whereupon this Agreement shall terminate and the parties shall have no further rights or obligations hereunder, except for those which expressly survive any such termination. It is hereby agreed that Seller’s damages in the event of a default by Purchaser hereunder are uncertain and difficult to ascertain, and that the Xxxxxxx Money constitutes a reasonable liquidation of such damages and is intended not as a penalty, but as full liquidated damages. Purchaser covenants not to bring any action or suit challenging the amount of liquidated damages provided hereunder in the event of such default. Notwithstanding anything to the contrary contained herein, this provision shall in no way affect or impair Seller’s right of recovery under any indemnity given by Purchaser in favor of Seller under this Agreement. In the event of a default by Seller under the terms of this Agreement, Purchaser’s sole and exclusive remedies hereunder shall be to either terminate this Agreement and receive a refund of the following shall constitute an "EVENT OF DEFAULT" Xxxxxxx Money from Auctioneer, or to seek specific performance of Seller’s obligations under this Lease Agreement, without any reduction in the Purchase Price, by Tenant:
(a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where commencing such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for an action within thirty (30) days after written notice thereof the date of Seller’s default. Purchaser shall have no right to seek or recover damages of any nature whatsoever from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be Seller in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event a default by Seller under the terms of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do soAgreement. If Landlord shall elect either party institutes any action or proceeding in court to terminate this Leaseenforce any provisions hereof, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof action for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts any alleged breach of any of the provisions hereof, then the prevailing party in any such action or proceeding shall be entitled to mitigate receive from the damages non-prevailing party such amount as the court may adjudge to it caused by Tenant's default; nor be reasonable attorneys’ fees for the services rendered to the prevailing party, together with its other reasonable litigation costs and expenses. The provisions of this Section shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury survive Closing or damage to persons or property occurring prior to a termination of this LeaseAgreement.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement
Default and Remedies. 25.1 The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 A. In the event that the transaction contemplated herein is not closed and consummated because of Purchaser's failure or breach to perform its obligations hereunder, Seller shall retain the Deposit as agreed-upon liquidated damages and not a penalty, it being otherwise difficult or impossible to estimate Seller's actual damages, and which liquidated damages shall be in lieu of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law damages or in equity, Landlord shall have the right to immediately specific performance, and, upon such event, this Agreement shall terminate and be null and void and of no further force or effect, and neither Seller nor Purchaser shall have any further rights, remedies, duties, liabilities or obligations to the other hereunder. Seller hereby waives any right to specific performance, injunctive relief or any other relief to cause Purchaser to perform its obligations under this Lease Agreement, and all rights Seller hereby waives any right to damages in excess of Tenant hereunder said liquidated damages occasioned by giving written notice Purchaser's breach of this Agreement. Seller and Purchaser acknowledge that it is impossible to Tenant of its election to do so. If Landlord shall elect to terminate this Leaseestimate the actual damages Seller would suffer from Purchaser's breach hereof, then it may recover from Tenant:
(a) The worth at but that the time of the award of the unpaid rent payable hereunder which had been earned at the date liquidated damages provided herein represent a reasonable pre-estimate of such termination; plusdamages and Seller and Purchaser therefor intend to provide for liquidated damages as herein specified, and that the agreed-upon liquidated damages are not punitive or penalties and are just, fair and reasonable, all in accordance with O.C.G.A. ss. 13-6-7.
(b) The worth at B. In the time event that the transaction contemplated herein is not closed and consummated because of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by TenantSeller's failure or breach to perform its obligations hereunder or which, in the ordinary course because of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu a breach by Seller of any of the foregoing as may be permitted representations and warranties made herein by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) aboveSeller, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and Purchaser shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
only (ai) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written Agreement by giving notice thereof to Seller, and upon receipt of such intention is given notice Seller shall return the Deposit to Tenant Purchaser and thereafter this Agreement shall terminate and be null and void and of no further force or unless effect, and neither Seller nor Purchaser shall have any further rights, remedies, duties, liabilities or obligations to the termination thereof others hereunder, or (ii) to xxx Seller for specific performance of its obligations under this Agreement; which remedies specified in (i) and (ii) shall be adjudged by a court in lieu of competent jurisdictionany other rights or remedies for Purchaser, including, without limitation, any right or claim for damages. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained If Purchaser consummates the transaction contemplated in this Article Agreement it shall constitute a waiver be conclusively deemed to have waived any breach by Seller of Landlord's right to recover damages by reason any covenant, representation or warranty under this Agreement (but not under any of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor documents executed at Closing which shall anything continue in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring accordance with their terms) which the Purchaser knew existed prior to a termination of this Leasethe Closing.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 2 contracts
Samples: Sales Contract (Roberts Realty Investors Inc), Sales Contract (Roberts Realty Investors Inc)
Default and Remedies. 25.1 The 15.01. Upon the occurrence of any a substantive default and the exhaustion of the following shall constitute an "EVENT OF DEFAULT" under dispute resolution procedures herein, the City may declare this Lease and all rights and interests created by Tenant:
(a) Any failure by Tenant to pay when due any of the Rent required it to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; providedterminated, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to may seek any and all damages occasioned by the GLO’s or may seek any other remedies available to Landlord at law or in equity.
15.02. The following are considered substantive defaults under this Lease:
a. Substantial failure of either Party to implement the Alamo Plan consistent with the fund allocation and timing;
b. Assignment or sublease of the Premises without the prior consent of City except as expressly provided in this Lease;
c. Systemic and persistent failure to comply with the terms, Landlord provisions or covenants of this Lease, other than the payment of money;
d. Systemic and persistent failure to develop and maintain the Premises consistent with the Alamo Plan.
15.03. If GLO defaults in performing any obligation arising out of this Lease, the Parties shall first exhaust the dispute resolution procedures herein. If those procedures are unsuccessful and GLO does not correct the default within 30 days after receipt of written notice to GLO and any notice to whom is required by this Lease, City may take action to correct the non-compliance upon 60 days written notice.
15.04. Upon the City’s election to terminate this Lease for cause pursuant to this Section, the City, its agent or attorney, may take possession of the premises and GLO shall make good any deficiency. Any termination of this Lease shall not relieve the GLO from the payment of any sum or sums that shall then be due and payable to the City, or any claim for damages then or theretofore accruing against the GLO, and any such termination shall not prevent the City from enforcing the payment of any such sum or sums or claim for damages by any remedy provided for by law, or from recovering damages from the GLO or any default hereunder.
15.05. GLO and City recognize that termination of this Lease is an extraordinary remedy that will only be exercised under if no other remedy can reasonably correct or restore compliance with this Lease. GLO acknowledges that the City may pursue specific performance or equitable remedies allowed by law to ensure compliance including but not limited to access to the Premises and the retention of materials, goods, or services to maintain the operation and management of the Premises consistent with the Alamo Plan and approved concept elements herein.
15.06. If the City terminates this Lease without cause then the GLO will be entitled to recover all costs associated with the implementation of the Alamo Plan including but not limited to costs of construction, equipment, and infrastructure. In addition, GLO will be entitled to recover costs associated with terminating contracts for goods and services related to the operation of the Alamo Complex. The Parties acknowledge that if the City terminates this Lease without cause the calculation of damages related to loss revenues and opportunities cannot be reasonably calculated given the length of the Lease and the implementation variables associated with the Alamo Plan. Consequently, if the City terminates this Lease without cause then in addition to the costs described above the City shall pay GLO an additional payment of $50 million [FIFTY MILLION DOLLARS].
15.07. All rights, options and remedies of the City contained in this Lease agreement shall be construed and held to be cumulative and no one of them shall be exclusive of the other, and the City shall have the right to immediately terminate pursue any one or all of such remedies or any other remedy or relief which may be provided by law or at equity, whether or not stated in this Lease and all rights agreement.
15.08. No waiver by the City of Tenant hereunder by giving written notice to Tenant a breach of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time any of the award covenants, conditions, or restrictions of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article agreement shall be construed as an election or held to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason any succeeding or preceding breach of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury same or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Leasecovenant, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding condition, or action may have been filed or commencedrestriction herein contained.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 2 contracts
Samples: Ground Lease and Management Agreement, Ground Lease and Management Agreement
Default and Remedies. 25.1 The occurrence If and whenever an Event of Default occurs, then, without prejudice to any of other rights which it has pursuant to this Lease or at law, the Landlord shall have the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenantrights and remedies, which are cumulative and not alternative:
(a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to the Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and repossess them and, in either case, the Landlord may remove all persons and property from the Premises and persons therefrom, and any store such property may be removed and stored in a public warehouse or elsewhere at the cost expense and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession risk of the Tenant or sell or dispose of such property in such manner as the Landlord sees fit without notice to the Tenant;
(b) to enter the Premises pursuant as agent of the Tenant and to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for whatever length and on such term or terms and upon such provisions as the Landlord, in its sole judgmentdiscretion, may deem advisable determine, and shall have to receive the right rent therefor and, as agent of the Tenant, to take possession of any property of the Tenant on the Premises, to store such property at the expense and risk of the Tenant or to sell or otherwise dispose of such property in such manner as the Landlord sees fit without notice to the Tenant, and to make repairs alterations to and alterations of the Premises.
25.6 If Premises to facilitate their reletting. The Landlord shall elect apply the proceeds of any such sale or reletting first, to relet as aforesaidthe payment of any expenses incurred by the Landlord with respect to any such reletting or sale, then rentals received by Landlord therefrom shall be applied as follows:
(a) second, to the payment of any indebtedness of the Tenant to the Landlord other than rent due hereunder from Tenant;
(b) Rent, and third, to the payment of all costs Rent in arrears, with the residue to be held by the Landlord and expenses incurred by applied to payment of future Rent as it becomes due and payable; provided that the Tenant shall remain liable to the Landlord in connection with such relettingfor any deficiency;
(c) to the payment remedy or attempt to remedy any default of the cost Tenant under this Lease for the account of the Tenant and to enter on the Premises for such purposes. No notice of the Landlord’s intention to remedy or attempt to remedy such default need be given to the Tenant unless expressly required by this Lease. The Landlord shall not be liable to the Tenant for any loss, injury or damages caused by acts of the Landlord in remedying or attempting to remedy such default, and the Tenant shall pay to the Landlord all expenses incurred by the Landlord in connection therewith;
(d) to recover from the Tenant all damages, costs and expenses incurred by the Landlord as a result of any alterations default by the Tenant including, if the Landlord terminates this Lease, any deficiency between those amounts which would have been payable by the Tenant for the portion of the Term following such termination and repairs the net amounts actually received by the Landlord during such period of time with respect to the Premises; and
(de) to recover from the payment Tenant the full amount of rent due the current month’s Rent together with the next three (3) months’ instalments of Rent, all of which shall accrue on a day-to-day basis and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may immediately become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such relettingaccelerated rent.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
Default and Remedies. 25.1 The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 A. In the event that the transaction contemplated herein is not closed and consummated because of Purchaser’s failure or breach to perform its obligations hereunder, Seller shall retain the Deposit as agreed-upon liquidated damages and not a penalty, it being otherwise difficult or impossible to estimate Seller’s actual damages, and which liquidated damages shall be in lieu of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law damages or in equity, Landlord shall have the right to immediately specific performance, and, upon such event, this Agreement shall terminate and be null and void and of no further force or effect, and neither Seller nor Purchaser shall have any further rights, remedies, duties, liabilities or obligations to the other hereunder. Seller hereby waives any right to specific performance, injunctive relief or any other relief to cause Purchaser to perform its obligations under this Lease Agreement, and all rights Seller hereby waives any right to damages in excess of Tenant hereunder said liquidated damages occasioned by giving written notice Purchaser’s breach of this Agreement. Seller and Purchaser acknowledge that it is impossible to Tenant of its election to do so. If Landlord shall elect to terminate this Leaseestimate the actual damages Seller would suffer from Purchaser’s breach hereof, then it may recover from Tenant:
(a) The worth at but that the time of the award of the unpaid rent payable hereunder which had been earned at the date liquidated damages provided herein represent a reasonable pre-estimate of such termination; plusdamages and Seller and Purchaser therefor intend to provide for liquidated damages as herein specified, and that the agreed-upon liquidated damages are not punitive or penalties and are just, fair and reasonable, all in accordance with O.C.G.A. § 13-6-7.
(b) The worth at B. In the time event that the transaction contemplated herein is not closed and consummated because of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's Seller’s failure or breach to perform its obligations hereunder or which, in the ordinary course because of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu a breach by Seller of any of the foregoing as may be permitted representations and warranties made herein by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) aboveSeller, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and Purchaser shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
only (ai) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written Agreement by giving notice thereof to Seller, and upon receipt of such intention is given notice Seller shall return the Deposit to Tenant Purchaser and thereafter this Agreement shall terminate and be null and void and of no further force or unless effect, and neither Seller nor Purchaser shall have any further rights, remedies, duties, liabilities or obligations to the termination thereof others hereunder, or (ii) to xxx Seller for specific performance of its obligations under this Agreement; which remedies specified in (i) and (ii) shall be adjudged by a court in lieu of competent jurisdictionany other rights or remedies for Purchaser, including, without limitation, any right or claim for damages. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained If Purchaser consummates the transaction contemplated in this Article Agreement it shall constitute a waiver be conclusively deemed to have waived any breach by Seller of Landlord's right to recover damages by reason any covenant, representation or warranty under this Agreement (but not under any of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor documents executed at Closing which shall anything continue in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring accordance with their terms) which the Purchaser knew existed prior to a termination of this Leasethe Closing.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 2 contracts
Samples: Sales Contract (Roberts Realty Investors Inc), Sales Contract (Roberts Realty Investors Inc)
Default and Remedies. 25.1 The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 a. In the event of Seller’s breach or default hereunder (prior to Closing), including, but not limited to, Seller’s failure to perform, observe, deliver, or complete (as the case may be), all covenants, obligations and agreements to be performed, observed, delivered or completed by Seller prior to or on the Closing Date, then Purchaser shall have the right as its sole and exclusive remedy to exercise any Event one of Default the following remedies:
(1) Purchaser may terminate this Contract by Tenant as aforesaidwritten notice to Seller and the Escrow Agent, whereupon the Deposit shall be immediately refunded to Purchaser by the Escrow Agent, and this Contract shall wholly cease and terminate, no party to this Contract shall have any further claim, agreement, or obligation to any other party to this Contract, and any lien of Purchaser against the Property shall automatically cease, terminate and be released; or
(2) Purchaser may enforce specific performance of this Contract. Notwithstanding the foregoing, in addition the event specific performance is not available because of any affirmative act or acts of Seller or any act or acts of any person or entity affiliated with Seller so as to any render specific performance not available, then Purchaser shall have the right to terminate this Contract, whereupon it shall become entitled to: (a) receive the immediate return of the Deposit, and (b) xxx and seek all other damages and remedies available at law or equity.
b. In the event that Purchaser fails to pay the balance of the Purchase Price and execute the documents required by this Contract at Closing (and Seller is not in default of its obligations hereunder and all conditions to Closing benefiting Purchaser have been satisfied or waived), then Seller shall, as its sole and exclusive remedy, have the right, in lieu of any other remedies available to Landlord it at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this LeaseContract by giving Purchaser and the Escrow Agent written notice thereof and the Escrow Agent shall deliver the Deposit to Seller, then it may recover from Tenant:
which shall retain the same as liquidated damages (a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds parties hereby acknowledging that the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time damages resulting from a breach of the award of the amount this Contract by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could Purchaser would be reasonably avoided; plus
(d) Any other amounts necessary difficult or impossible to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (aaccurately ascertain) and (b) aboveupon Seller’s receipt thereof, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) abovethis Contract shall wholly cease and terminate, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenantno party to this Contract shall have any further claim, Landlord shall also have the rightagreement, with or without terminating obligation to any other party to this Lease, to re-enter the Premises and remove all property and persons therefromContract, and any such property may lien of Purchaser against the Property shall automatically cease, terminate and be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirementsreleased.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 2 contracts
Samples: Contract of Sale (Comstock Holding Companies, Inc.), Contract of Sale (Comstock Holding Companies, Inc.)
Default and Remedies. 25.1 The occurrence If Lessee defaults in the payment of any sum of the following shall constitute an "EVENT OF DEFAULT" money to be paid under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where and such failure default continues for five a period of ten (510) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and Lessee of such default or if Lessee fails to perform any other provision of this Lease material covenant or condition required to be observed or performed by Tenant where Lessee, which failure shall not be remedied within ten (10) business days after notice thereof by Lessor to Lessee or if Lessee shall dissolve, make or commit any act of bankruptcy or if any proceeding under any bankruptcy or insolvency statute or any laws relating to relief of debtors is commenced by Lessee or if any such failure continues for proceeding is commenced against Lessee and same shall not have been removed within thirty (30) days after written notice of the date of the filing thereof from Landlord; providedor if a receiver, that trustee or liquidator is appointed for Lessee or for all or a substantial part of Lessee’s assets with Lessee’s consent or, if without Lessee’s consent, the nature same shall not have been removed within thirty (30) days of the date of the appointment thereof or if an order, judgment or decree is entered by a court of competent jurisdiction and continues unpaid and in effect for any period of thirty (30) consecutive days without a stay of execution or if a writ of attachment or execution is levied on any car and is not discharged within ten (10) days thereafter, Lessor may exercise one or more of the following remedies with respect to the cars:
1. Immediately terminate this Lease and Lessee’s rights hereunder;
2. Require Lessee to return the cars to Lessor at Lessee’s expense, and if Lessee fails to so comply, Lessor may take possession of such default is cars without demand or notice and without court order or legal process. Lessee hereby waives any damages occasioned by such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completiontaking of possession;
(c) Any default by Tenant 3. Bring legal action to recover all rent or other amounts then accrued or thereafter accruing from Lessee to Lessor under any other lease between Landlord and Tenant for other premises in the Centerprovision hereunder;
(d) The abandonment 4. Pursue any other remedy which Lessor may have. Each remedy is cumulative and may be enforced separately or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 concurrently. In the event of any Event of Default by Tenant as aforesaiddefault, in addition Lessee shall pay to any Lessor upon demand all damages, costs and all other remedies available expenses, including, but not limited to, cleaning charges, charges for repairing loss or damage to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate cars that are Lessee’s responsibility under this Lease, then it may recover and reasonable attorneys’ fee expended by Lessor in the enforcement of its rights and remedies hereunder, and Lessee shall pay interest on any amount owing to Lessor from Tenant:
(a) The worth at the time of the award of the unpaid rent payable such amount becomes due hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the a rate of twelve percent (12%) percent per annum or, if not permitted to charge a rate of twelve percent (the "INTEREST RATE"). As used in subparagraph (c12%) aboveper annum, the "worth at maximum rate permitted by applicable law. In addition, Lessee shall, without expense to Lessor, assist Lessor in repossessing the time cars and shall, for a reasonable time, if required, furnish suitable trackage space for the storage of the award" is computed by discounting such amount at the discount rate cars. Upon Lessor exercising any of the Federal Reserve Bank of San Francisco foregoing remedies, Lessor shall use commercially reasonable efforts to lease the cars to such persons, at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefromsuch rental, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon period of time as Lessor shall reasonably elect. Lessor shall apply the proceeds from such provisions as Landlordleasing, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of less all costs and expenses incurred by Landlord in connection with the recovery, repair, storage and renting of such reletting;
(c) to cars, toward the payment of the cost of Lessee’s obligations hereunder. Lessee shall remain liable for any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residuedeficiency, if anywhich, at Lessor’s option, shall be held by Landlord and applied in payment paid monthly as suffered or immediately, or at the end of future rent the Lease term as the same may become due and payable hereunderdamages for Lessee’s default. In no event shall Tenant be entitled If Lessee fails to perform any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent its obligations hereunder, be less than the rent payable hereunder during that month by TenantLessor, then Tenant shall pay such deficiency to Landlord forthwith upon demandat Lessee’s expense, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making without waiving any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to rights it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other against Lessee for such nonperformance, may itself render such performance. Lessee shall reimburse Lessor on demand for all sums due and payable hereunder so paid by Tenant shall bear Lessor on Lessee’s behalf, together with interest at a rate of twelve percent (12%) per annum, or if not permitted to charge a rate of twelve percent (12%) per annum, the maximum lawful rate per annum from the due date and until payment thereofpermitted by applicable law.
Appears in 2 contracts
Samples: Railroad Car Lease Agreement (US BioEnergy CORP), Railroad Car Lease Agreement (US BioEnergy CORP)
Default and Remedies. 25.1 The following shall be an event of default by Tenant: (i) failure to perform or observe any non-monetary covenant in the Lease, which failure is not cured within 10 days after notice of such default or (ii) failure to pay Rent or any sum of money hereunder when due. Upon the occurrence of an event of default, Landlord, without notice to Tenant in any instance (Tenant hereby expressly waiving any notices or demand required by law), may do any one or more of the following shall constitute an "EVENT OF DEFAULT" without having forfeited the Lease: (i) perform, on behalf of and at the expense of Tenant, any obligation of Tenant under this Lease by Tenant:
which Tenant has failed to perform; (aii) Any failure by Tenant to pay when due any declare the entire amount of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt which would become due and payable during the remainder of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision Term of this Lease to be observed or performed by Tenant where such failure continues for thirty due and payable immediately; (30iii) days after written notice thereof from Landlord; provided, that if re-enter the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Demised Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as may remove Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to persons and property from the Demised Premises, (iv) relet said Demised Premises or any part thereof upon any such terms and conditions as Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to sole discretion may deem advisable; (v) terminate this Lease, then it may recover from upon written notice to Tenant:
; (avi) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by remove Tenant's failure to perform its obligations hereunder property from the Demised Premises and store the same at Tenant’s expense and without Landlord being deemed guilty of trespass or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, becoming liable for any loss or damage occasioned thereby. Landlord may also sell such other amounts in addition to property at a public or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the rightprivate sale, with or without terminating the proceeds being applied to the costs of sale and storage, Landlord’s reasonable attorney fees, amounts owed to Landlord under this Lease, and with any surplus paid to Tenant, in that order. Tenant waives any rights to re-enter the Demised Premises and remove all property and persons therefromany rights of redemption; (vii) exercise any other legal or equitable right or remedy it may have, and which shall specifically include but not be limited to Landlord’s exercise without court proceeding of a lien on any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all ’s property in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Demised Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment until cure of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment events of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunderdefault. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession commencement of the Premises any action for re-entry by Landlord under this Article shall be construed as an election to terminate this Lease unless nor to release Tenant from its obligations hereunder. Landlord and Tenant hereby mutually waive all rights to request a written notice of such intention is given to Tenant jury trial in any action, proceeding, or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination counterclaim arising out of this Lease.
25.9 Subject only . Tenant further waives any right to Article 31interpose any non-compulsory counterclaim, if or to seek damages, other than injunctive relief, in relation to the reasonableness of Landlord’s discretion. In no event may Tenant recover any special, consequential, indirect or punitive damages against or from Landlord herein, including, without limitation, any damages for or relating to any lost profit or business income. If this Lease is terminated by Landlord after default by Tenant, Tenant nevertheless shall retain an remain liable for all Rent which may be due or damages which may be sustained prior to such termination, and all reasonable costs, fees, and expenses, including attorney for the purpose fees, incurred by Landlord in pursuit of collecting its remedies hereunder, and/or in connection with any rental due from bankruptcy proceedings of Tenant or enforcing any other covenant Tenant's guarantor (if applicable), and/or in connection with renting the Demised Premises to others from time to time, plus additional damages which shall be an amount equal to the present value of this LeaseRent, Tenant shall pay discounted at a rate of eight percent (8%), which would have become due during the reasonable fees of such attorney for his services regardless remainder of the fact that no legal proceeding or action may have been filed or commencedTerm.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 2 contracts
Samples: Lease Agreement (La Rosa Holdings Corp.), Lease Agreement (La Rosa Holdings Corp.)
Default and Remedies. 25.1 18.01 If the Tenant does not pay any taxes, rates, services and utilities, or other amounts which the Tenant has covenanted to pay, the Landlord may pay the same and recover from the Tenant the amounts so paid as rent in arrears.
18.02 If the Tenant, after seven (7) days' written notice from the Landlord, does not rectify and make good any damage, repairs or maintenance for which the Tenant is liable under this Lease, the Landlord may enter upon the Demised Premises (without being liable for any disturbance or damage so caused), rectify and make good any such damage, repairs or maintenance, and recover the cost from the Tenant as rent in arrears.
18.03 If the Tenant does not insure and keep insured as required, the Landlord shall be free to effect the required insurance and to recover the cost from the Tenant as rent in arrears.
18.04 The occurrence Tenant covenants not to permit any construction or other liens for work, labour, services or materials ordered by the Tenant or for the cost of which it may be in any way obligated to attach to the Demised Premises. If such a lien is attached the Tenant shall, within twenty (20) days after the Tenant has notice of the following claim for lien, procure a discharge of the lien. If the Tenant fails to comply with the terms of this paragraph, the Landlord, at its option, may pay and discharge the lien and all monies paid by the Landlord, including all expenses incurred, shall constitute an "EVENT OF DEFAULT" under be charge to, and paid by the Tenant and may be collected as additional rent due on the next ensuing rent day.
18.05 If, upon the termination or surrender of this Lease, the Demised Premises are not left in the state of cleanliness and repair as required, the Landlord may carry out any work required to rectify the default as agent of and at the expense of the Tenant, and recover the cost from the Tenant as rent in arrears.
18.06 All arrears of rent and any monies overdue and owing to the Landlord herein shall bear interest at the rate of 1% above the prime commercial lending rate charged by the Landlord's bank from the time the arrears become due until paid to the Landlord.
18.07 In addition to any other remedies set out in this Lease by Tenantand available at law, the Tenant agrees that:
(a) Any failure by Tenant to pay when due any in case of non-payment of rent or other monies at the Rent required to be paid by Tenant hereunder where such failure continues for five time provided; three (53) business days after Tenant's receipt of written notice that the same is overdue;will be given on two occasions only during each calendar year or
(b) A failure by if the Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty falls, after seven (307) days after days' written notice thereof from the Landlord, commence to make repairs and diligently proceed to make good and complete any damage, repairs or maintenance, for which the Tenant is liable; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;or
(c) Any default if the demised Premises be used by Tenant under any other lease between Landlord and Tenant for person other premises in than those entitled to use them under the Center;terms of this Lease; or
(d) The abandonment if the term hereby granted or vacation any of the Premises, provided that if goods or chattels of the Tenant has vacated on the Demised Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained during the said term seized or taken in this Article shall constitute a waiver of Landlord's right to recover damages execution or attachment by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless creditor of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.Tenant: or
Appears in 2 contracts
Samples: Sublease Agreement (Hycomp Inc), Sublease Agreement (Hycomp Inc)
Default and Remedies. 25.1 The occurrence Institute proceedings for the complete foreclosure of any this Mortgage by judicial action or by power of sale, in which case the Mortgaged Property may be sold for cash or credit in one or more parcels. [Such sale shall be made in accordance with [ ] law at the time of the following shall constitute an "EVENT OF DEFAULT" sale, governing sales of real property under this Lease powers of sale conferred by Tenant:
mortgages relating to the sale of real estate or by the UCC relating to the sale of collateral after default by a debtor (aas such laws now exist or may be hereafter amended or succeeded), or by any other present or subsequent articles or enactments relating to same.]45 With respect to any notices required or permitted under the UCC, Mortgagor agrees that ten (10) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of days’ prior written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event commercially reasonable. At any such sale by virtue of any Event judicial proceedings, power of Default sale, or any other legal right, remedy or recourse, the title to and right of possession of any such property shall pass to the purchaser thereof, and to the fullest extent permitted by Tenant as aforesaidlaw, in addition to any Mortgagor shall be completely and irrevocably divested of all other remedies available to Landlord of its right, title, interest, claim, equity, equity of redemption, and demand whatsoever, either at law or in equity, Landlord in and to the property sold and such sale shall have be a perpetual bar both at law and in equity against Mortgagor, and against all other Persons claiming or to claim the right to immediately terminate this Lease and all rights property sold or any part thereof, by, through or under Mortgagor. Mortgagee or any of Tenant hereunder by giving written notice to Tenant of its election to do sothe other Secured Parties may be a purchaser at such sale. If Landlord shall elect Mortgagee or such other Secured Party is the highest bidder, Mortgagee or such other Secured Party may credit the portion of the purchase price that would be distributed to terminate Mortgagee or such other Secured Party against the Secured Obligations in lieu of paying cash. In the event this LeaseMortgage is foreclosed by judicial action, then it appraisement of the Mortgaged Property is waived, Mortgagee may recover postpone from Tenant:
(a) The worth time to time any sale to be made under or by virtue hereof by announcement at the time of the award of the unpaid rent payable hereunder which had been earned at the date of and place appointed for such termination; plus
(b) The worth sale or for such postponed sale or sales, and Mortgagee, without further notice or publication, may make such sale at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth place as announced at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to timepostponed sale.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Endeavor Group Holdings, Inc.), First Lien Credit Agreement (Endeavor Group Holdings, Inc.)
Default and Remedies. 25.1 The occurrence
14.1 Upon the expiration of any of cure periods contemplated in Section 14.2, the following shall constitute an "EVENT OF DEFAULT" be considered events of default under this Lease by TenantAgreement:
(a) Any failure by Tenant to pay when due any the Proponent has, in the opinion of the Rent required City, acting reasonably, failed to be paid by Tenant hereunder proceed with the implementation, construction and/or the operation of the Project in a timely manner, except where such failure continues for five (5) business days after Tenant's receipt is due to causes which, in the opinion of written notice that the same is overdueCity, acting reasonably, are beyond the control of the Proponent;
(b) A failure by Tenant the Proponent has failed to observe and perform any other provision provide the City the Start of Construction Affidavit within XXXX (XX) days of execution of this Lease Agreement;
(c) the Proponent has failed to achieve Substantial Completion of the Project by XXXXXXX, or such other date which is three months after the date contemplated by Subsection 7.1(b) as such date may be observed extended from time to time;
(d) the Proponent ceases to construct and/or operate the Project pursuant to the terms and conditions of this Agreement;
(e) if in the opinion of the City, acting reasonably, the Proponent knows or performed ought reasonably to have known at Initial Occupancy that a Unit is being provided to a tenant whose Household Income exceeds the Initial Income Limit or that the household composition has been misrepresented or has not been verified on Initial Occupancy as set out in Section 7,1 hereof and such violation is part of a consistent and persistent series of several and material violations over time such that the Proponent has failed to consistently operate the Project principally for the purposes of Affordable Housing as required by Tenant where such failure continues the provisions of this Agreement;
(f) the Proponent knows or ought reasonably to have known in the opinion of the City, acting reasonably that the average Monthly Occupancy Costs for the Project exceed XX% of Average Market Rent, or that the average Monthly Occupancy Costs for any one Unit exceed 100% of Average Market Rent;
(g) the Proponent has breached Article 6, 8 and 9 in whole or in part of this Agreement;
(h) an order is made or resolution is passed for the winding up or dissolution of the Proponent, or the Proponent is dissolved;
(i) the Proponent becomes bankrupt or insolvent or takes the benefit of any legislation now or hereafter in force for bankrupt or insolvent debtors or fails under any proposal or makes any assignment for creditors or any arrangement or compromise;
(j) a receiver or receiver-manager is appointed for the Project by a creditor; or
(k) there is, in the opinion of the City, acting reasonably, a material adverse change in risk in the Proponent’s ability to carry out its roles and responsibilities under this Agreement with respect to the implementation and/or the operation of the Project.
14.2 If there is an event of default by the Proponent that is continuing, and the default has not been remedied within thirty (30) days after of receipt by the Proponent of written notice thereof from Landlord; providedNotice of an event of default or within such longer period as is required and the City may allow, that if the nature City may, in its absolute discretion, without restricting any remedies otherwise available:
(a) require repayment of such default is such that the same cannot with due diligence be cured within said periodremaining, Tenant shall not be deemed unforgiven balance of the Principal Amount;
(b) require the Proponent to be in default if it shall within said period commence such during and thereafter diligently prosecutes provide additional information or documents to the same to completionCity;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in rescind the Centertax exemption by-law passed with respect to the Project;
(d) The abandonment correct the breach itself or vacation by retaining a third party and the reasonable cost of so doing shall be payable forthwith by the Proponent to the City and may be retained from any unpaid portion of the Premises, funding being provided that if Tenant has vacated pursuant to this Agreement or may be recovered in any court of competent jurisdiction as a debt due to the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; andCity;
(e) Any other event herein specified terminate the Agreement by giving written notice to be an Event of Default under this Lease.the Proponent;
25.2 In (f) enforce its rights pursuant to the event of City Charge; and/or
(g) seek any Event of Default by Tenant as aforesaid, in addition to any and all other remedies additional remedy available to Landlord the City at law or in equity.
14.3 For the purposes of this Section, Landlord the Proponent will be found to have remedied the default if, for the purposes of Subsection 14.1(e), the Proponent submits a plan satisfactory to the Director, Housing Stability Services attempting to prevent future defaults.
14.4 If the City gives the Proponent written Notice of an event of default, the City may suspend the provision of any further City Benefits under this Agreement until the breach is remedied.
14.5 Upon providing a notice of termination, the City shall have no obligation to make any further advances to the right to immediately terminate this Lease Proponent.
14.6 All rights and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time remedies of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating City under this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom Agreement shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs cumulative and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such relettingalternative.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 2 contracts
Samples: Contribution Agreement, Contribution Agreement
Default and Remedies. 25.1 The occurrence Schedule G PROPERTIES APPENDIX TO SCHEDULE G SCHEDULE H Permitted Encumbrances
1. Encumbrances for real property taxes (which term includes charges, rates and assessments, and other governmental charges or levies) and charges for electricity, power, gas, water and other services and utilities in connection with the Property that (i) have accrued but are not yet due and owing or, if due and owing, are adjusted for pursuant to Section 6.1, or (ii) the validity of which is being contested in good faith.
2. Encumbrances of any nature in respect of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:Property that have been disclosed (including any deemed disclosure pursuant to the Agreement) to HUPEG prior to the Execution Date.
(a) 3. Any failure by Tenant to pay when due any subsisting reservations, limitations, provisos, conditions or exceptions contained in the original grants of the Rent required Property from the Crown.
4. All Encumbrances contained in any Operating Agreements that have been disclosed (including any deemed disclosure pursuant to be paid by Tenant hereunder where such failure continues for five the Agreement) to HUPEG prior to the Execution Date.
5. All Property Leases in respect of the Property existing as of the Execution Date that have been disclosed (5including any deemed disclosure pursuant to this Agreement) business days after Tenant's receipt of written notice to HUPEG prior to the Execution Date that are entered into or granted in compliance with the same is overdue;
(b) A failure by Tenant to observe and perform any other provision provisions of this Lease Agreement, and all registered notices, memorials, caveats or other registrations with respect to be observed such Property Leases; and leasehold mortgages or performed security interests relating to any tenant secured by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of tenant's interest in any such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Property Lease.
25.2 In 6. Without derogating from any other item listed in this Schedule, the event lease registered (or notice of any Event of Default by Tenant which has been registered) as aforesaidInstrument No. AB199863, in addition to any being a lease with The Hamilton & District Association for the Mentally Retarded (now Community Living Xxxxxxxx) and all other remedies available to Landlord at law or in equityInstrument No. VM123613, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time being a renewal of the award of said lease with Hamilton Association for Community Living (now Community Living Xxxxxxxx) (collectively, the unpaid rent payable hereunder which had been earned at “Community Living Lease”), and the date of such termination; plus
(b) The worth at the time of the award of the amount subsequent arrangements that were approved by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or whichCity Council on May 7, 2014 as set out in the ordinary course of affairs, would likely result therefrom; and
General Issues Committee Minutes 14-010 (e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) abovecollectively, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"“Community Living Arrangements”). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 2 contracts
Samples: Master Agreement, Master Agreement
Default and Remedies. 25.1 17.1 The occurrence of any one of the following shall constitute an "EVENT OF DEFAULT" be deemed a Material Default by Licensee under this Lease by TenantAgreement:
(a) Any failure 17.1.1 Failure by Tenant Licensee to pay when due any of the Rent fee or other sum required to be paid by Tenant hereunder where under the terms of this Agreement and such failure default continues for a period of five (5) business days after Tenant's receipt of written notice that the same is overduethereof to Licensee;
(b) A failure 17.1.2 Failure by Tenant Licensee to perform or observe and perform any other term, condition, covenant, obligation or provision of this Lease to be observed or performed by Tenant where Agreement and such failure default continues for a period of thirty (30) days after written notice thereof from Landlord; provided, GTE (provided that if the nature of such default is not curable within such that the same cannot with due diligence be cured within said thirty (30) day period, Tenant shall not the period will be deemed extended if Licensee commences to be in cure such default if it shall within said such thirty (30) day period commence and proceeds diligently thereafter to effect such during and thereafter diligently prosecutes the same to completioncure);
17.1.3 The filing of any tax or mechanic's lien against any GTE conduit(s) which is not bonded or discharged within thirty (c30) Any default by Tenant under any other lease between Landlord and Tenant for other premises in days of the Centerdate Licensee receives notice that such lien has been filed;
(d) The abandonment 17.1.4 Licensee's voluntary or vacation involuntary bankruptcy;
17.1.5 Licensee's knowing use or maintenance of Licensee's Facilities in violation of any law or regulation, or in aid of any unlawful act or undertaking;
17.1.6 If any authorization which may be required of the PremisesLicensee by any governmental or private authority for the placement, provided that if Tenant has vacated the Premises and operation or maintenance of Licensee's Facilities is actively seeking a subtenant denied or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Leaserevoked.
25.2 17.2 In the event of a Material Default, GTE, without any Event further notice to the Licensee (except where expressly provided for below or required by applicable law) may do any one or more of Default by Tenant as aforesaidthe following:
17.2.1 Perform, in addition on behalf and at the expense of Licensee, any obligation of Licensee under this Agreement which Licensee has failed to any perform and all other remedies available to Landlord at law or in equity, Landlord of which GTE shall have given Licensee notice, the right cost of which performance shall be paid by Licensee to immediately terminate GTE upon demand;
17.2.2 Terminate this Lease and all rights of Tenant hereunder Agreement by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises Licensee and remove all property Licensee's Facilities and persons therefrom, and any such property may be removed and stored store them in a public warehouse or elsewhere at the cost expense of and for the account of TenantLicensee without GTE being deemed guilty of trespass or conversion, all in accordance with all Legal Requirementsand without GTE becoming liable for any loss or damages to Licensee occasioned thereby; or
17.2.3 Exercise any other legal or equitable right or remedy which GTE may have.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all 17.3 Any costs and expenses incurred by Landlord GTE (including, without limitation, reasonable attorneys' fees) in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, enforcing this Agreement shall be held paid to GTE by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith Licensee upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a 17.4 Upon termination of this LeaseAgreement by GTE, Licensee shall remain liable to GTE for any and all fees, other payments and damages which may be due or sustained prior to such termination, all reasonable costs, fees and expenses, including, without limitation, reasonable attorneys' fees incurred by GTE in pursuit of its remedies hereunder, and additional liquidated damages which shall be an amount equal to one full year of Occupancy Fees.
25.9 Subject only to Article 31, if Landlord 17.5 All rights and remedies of GTE set forth in this Agreement shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing be cumulative and none shall exclude any other covenant right or remedy, now or hereafter allowed by or available under any statute, ordinance, rule of this Leasecourt, Tenant shall pay or the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding common law, either at law or action may have been filed in equity, or commencedboth.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 2 contracts
Samples: Interconnection, Resale and Unbundling Agreement, Interconnection, Resale and Unbundling Agreement
Default and Remedies. 25.1 The occurrence of If rent, or any other charge payable by Tenant under this Lease shall be unpaid on the date payment is required, or if Tenant fails to perform any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe other terms, conditions, covenants and perform any other provision obligation of this Lease to be observed or and performed by Tenant where such failure continues for thirty more than fifteen (3015) days after written Owner gives Tenant notice thereof from Landlord; provided, that if the nature of such default (it being agreed that a default other than the failure to pay money which is of such a character that the same cannot with due diligence cure thereof reasonably requires longer than 15 days shall be deemed cured within said periodperiod if Tenant commences a cure within such 15 days and completes the same with due diligence), or if Tenant shall not be vacate or abandon the Premises (a failure, without Owner's written consent, to operate its business in the Premises for 20 consecutive days or more being conclusively deemed an abandonment), or suffer his Lease to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant taken under any writ of exclusion, attachment or other lease between Landlord and Tenant for other premises in process of law, then Owner shall have the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, following rights in addition to any and all its other remedies available to Landlord at law rights or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenantremedies:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary Owner may, upon notice to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating terminate this Lease, to re-enter Lease and reenter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article Owner shall be construed as an election on its part to terminate this Lease unless a written notice of such intention is given to Tenant (all other demands and notices of forfeiture or unless other similar notices being hereby expressly waived by Tenant). Upon the termination thereof be adjudged by a court service of competent jurisdictionany such notice of termination, the term of this Lease shall automatically terminate. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may Should Owner at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained for any breach, in this Article shall constitute a waiver of Landlord's right addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of Landlord's efforts to mitigate such breach, including the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's rightcost of recovering the Premises, as reasonable attorneys fees, and the value at the time of such termination of any rent reserved in this Lease elsewhere providedfor the remainder of the term over the ten reasonable rental value of the Premises for the remainder of such term, all of which amount shall be immediately due and payable from Tenant to Owner.
(b) Owner may make such alterations and repairs as it shall determine may be reasonably necessary to relet the Premises and Owner may (but shall not be required to) relet the same or any part thereof upon such terms and conditions as Owner in its sole discretion may deem advisable. Upon any reletting, all rentals received by Owner from such reletting shall be applied as follows: first, to indemnification against liability for injury the payment of any indebtedness other than rent or damage to persons or property occurring prior to a termination of other charges due under this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due Lease from Tenant or enforcing to Owner; second, to the payment of any costs and expenses of such reletting, including brokerage fees, attorneys' fees, and costs of such alterations and repairs; and third, to the payment of rent and other covenant charges due and unpaid hereunder. In no event shall Tenant be entitled to receive any surplus of this Lease, any sums received by Owner on a reletting in excess of the rental and other charges payable hereunder. If such rentals and other charges received from such reletting during any month are less than those to be paid during that month by Tenant shall pay the reasonable fees of any such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenceddeficiency to Owner upon demand.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 2 contracts
Samples: Lease Agreement (WTC Industries Inc), Lease Agreement (WTC Industries Inc)
Default and Remedies. 25.1 The occurrence If Tenant shall fail to pay either Base Rent or additional rent when due, or any other sums of money becoming due hereunder, or if Tenant shall default in the performance of any other of the following shall constitute an "EVENT OF DEFAULT" under terms, conditions, or covenants contained in this Lease by Tenant:
(a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease Agreement to be observed or performed by Tenant where it and does not remedy such failure continues for default within thirty (30) days after written notice thereof from Landlord; providedor does not, that if the nature of within such default thirty (30) days, commence such act or acts as shall be necessary to remedy a default, which is such that the same cannot with due diligence be cured curable within said periodthirty (30) days for reasons beyond the control of Tenant, and shall not complete such act or acts within sixty (60) days after written notice, or if Tenant shall not be deemed become bankrupt or insolvent, or file any debtor proceedings, or file in any court pursuant to any statute, either of the United States or of any state a petition in bankruptcy or insolvency or for reorganization, or file or have filed against it a petition for the appointment of a receiver or trustee for all or substantially all of the assets of Tenant, or if Tenant makes an assignment, or if Tenant shall abandon the Premises or suffer the Lease to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant taken under any other lease between Landlord writ of execution and Tenant for other premises such writ is not vacated or set aside within fifteen (15) days, then in any such event the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the immediate right of reentry without resort to legal process and the right to immediately terminate and cancel this Lease. If Landlord should elect to reenter as herein provided, or should it take possession pursuant to legal proceedings, it may either terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then or it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and at such rentals and upon such provisions other terms and conditions as Landlord, in its sole judgment, the Landlord may deem advisable and advisable. If such reletting shall have yield rentals insufficient for any month to pay the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaidrental due by Tenant hereunder for that month, then rentals received by Landlord therefrom Tenant shall be applied as follows:
(a) to the payment of any indebtedness of Tenant liable to Landlord other than rent due hereunder from Tenant;
(b) to for the payment of all costs deficiency and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, same shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with No such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry reentry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is be given by the Landlord to the Tenant or unless at the termination thereof be adjudged by a court time of competent jurisdiction. Notwithstanding such reentry; but, notwithstanding any such reentry and reletting without termination by Landlord because of Tenant's defaulttermination, Landlord may at any time after such reletting thereafter elect to terminate this Lease because for such previous breach. If as a result of such default.
25.8 Nothing contained in this Article a default hereunder, either Landlord or Tenant shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney institute legal proceedings for the purpose enforcement of collecting any rental due from Tenant or enforcing any the other covenant of this Leaseparty’s obligations, Tenant the non-prevailing party shall pay all costs incurred by the prevailing party, including reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commencedattorney’s fees.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 2 contracts
Samples: Lease Agreement (Saflink Corp), Lease Agreement (Saflink Corp)
Default and Remedies. 25.1 The occurrence a. In addition to the items of any of Default that Sublessee is subject to under the Master Lease, the following events shall constitute an "EVENT OF DEFAULT" under a Default of this Lease by TenantSublease:
(ai) Any failure by Tenant to pay when due The Minimum Rent, Additional Rent or any of the Rent required to be paid by Tenant hereunder where such failure continues other rent or any part thereof is at anytime in arrears and unpaid for five three (53) business days after Tenant's receipt of written notice that the same is overduepast due hereunder;
(bii) A failure by Tenant Sublessee has failed to observe keep and perform any of the other provision of this Lease covenants and agreements on its part to be observed kept and performed under this Sublease or performed as required by Tenant where this Sublease under the Master Lease which constitute defaults under the Master Lease, and such failure continues for has not been cured within thirty (30) days after written notice thereof from Landlordby Sublessor; provided, however, that if the nature of such default Sublessee’s obligation is such that the same cannot with due diligence be cured within said periodmore than 30 days are required for its performance, Tenant then Sublessee shall not be deemed to be in default Default if it shall commences performance within said the 30 day period commence such during and thereafter diligently prosecutes pursues the same cure to completion;
(ciii) Any default by Tenant under Sublessee abandons the Premises during the Term thereof;
b. Upon the occurrence of any one or more of the above events constituting a Default of this Sublease, or any other lease between Landlord Default of the Master Lease, if the Sublessee is required by the terms of this Sublease, to observe, keep and Tenant for perform said covenants under the Master Lease, Sublessor, at its option, may do any one or more or all of the following:
(i) Subject to applicable law, declare the balance of all Rent and all amounts due hereunder immediately due and payable, and upon such declaration such accelerated Rent plus the aggregate amount of any installments of Rent and other premises in the Centersums then accrued and unpaid shall be due and payable immediately;
(dii) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises Terminate this Sublease and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property again have, repossess and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at enjoy the cost and for the account of Tenant, all in accordance same with all Legal Requirementsthe improvements then located thereon as if this Sublease had not been made, in which event, this Sublease and everything herein contained on the part of the Sublessor to be kept and performed shall cease and be utterly void, without prejudice, however, to the Sublessor’s right of action for arrears of rent and breach of covenant; and/or
(iii) Re-let the Premises on such terms as Sublessor may from time to time elect and apply the net proceeds toward the Sublessee’s obligations hereunder, without prejudice, however, to Sublessor’s right of action for arrears of rent and breach of covenant.
25.5 If Landlord (c. Sublessee shall pay and indemnify Sublessor against all legal costs and charges, including counsel fees lawfully and reasonably incurred in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take obtaining possession of the Premises pursuant to legal proceedings after a default of Sublessee or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this after Sublessee’s default under the Master Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking surrendering possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant upon expiration or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a earlier termination of this Lease.
25.9 Subject only to Article 31the term of the Sublease, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commencedSublease.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 2 contracts
Samples: Sublease Agreement (Tarsus Pharmaceuticals, Inc.), Sublease Agreement (Tarsus Pharmaceuticals, Inc.)
Default and Remedies. 25.1 The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant Except for the Parties obligations under Section 11 which must be performed prior to pay when due the Closing, in the event of any default, the non-defaulting Party shall give the defaulting Party written notice of the Rent required to be paid by Tenant hereunder where occurrence of such failure continues for five default (5a “Default Notice”) business and the defaulting Party shall have ten (10) days after Tenant's following its receipt of written notice that the same is overdue;such Default Notice in which to cure such default hereunder.
(b) IN THE EVENT THE SALE OF THE PROPERTY AS CONTEMPLATED HEREUNDER IS NOT CONSUMMATED DUE TO A failure by Tenant to observe and perform any other provision of this Lease to be observed DEFAULT OF BUYER AFTER THE SATISFACTION DATE, THE XXXXXXX MONEY (TO THE EXTENT PREVIOUSLY PAID BY BUYER TO ESCROW HOLDER, INCLUDING ALL INTEREST EARNED FROM THE INVESTMENT THEREOF) SHALL BE RELEASED TO SELLER AS LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT SELLER’S ACTUAL DAMAGES IN THE EVENT THAT THE SALE IS NOT CONSUMMATED WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY SEPARATELY EXECUTING THIS SECTION 17(a) BELOW, THE PARTIES ACKNOWLEDGE THAT THE XXXXXXX MONEY MADE BY BUYER ON OR BEFORE THE DATE OF BUYER’S DEFAULT HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES’ REASONABLE ESTIMATE OF SELLER’S DAMAGES, AND AS SELLER’S EXCLUSIVE REMEDY AGAINST BUYER IN THE EVENT OF BUYER’S DEFAULT HEREUNDER AND THAT IF THE CLOSING DOES NOT OCCUR AS A RESULT THEREOF, AS SELLER’S SOLE AND EXCLUSIVE REMEDY AGAINST BUYER ARISING FROM SUCH FAILURE OF THE SALE TO CLOSE DUE TO DEFAULT BY BUYER (SELLER HEREBY WAIVING ANY RIGHT TO SEEK DAMAGES, TO XXX FOR SPECIFIC PERFORMANCE OR PURSUE ANY OTHER REMEDIES HEREUNDER AT LAW OR IN EQUITY EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 17(b) BELOW). BY THEIR SEPARATELY EXECUTING THIS SECTION 17(b) BELOW, BUYER AND SELLER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD THE ABOVE PROVISION COVERING LIQUIDATED DAMAGES, AND THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS EXECUTED. SELLER HEREBY WAIVES ANY AND ALL BENEFITS IT MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 3389. NOTWITHSTANDING THE FOREGOING, OR ANY OTHER PROVISION TO THE CONTRARY, THIS SECTION 17(b) SHALL IN NO WAY LIMIT OR RESTRICT SELLER’S RECOVERY UNDER SECTION 4(c), SECTION 19, SECTION 20, or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;SECTION 23 HEREOF. BUYER: SELLER:
(c) Any default by Tenant In the event that the Closing does not occur as a result of a breach of any of Seller’s covenants, representations, warranties or other obligations under any other lease between Landlord this Agreement, then Buyer shall have as its sole and Tenant for other premises exclusive remedy the right to either (i) terminate this Agreement and to receive a return of the Xxxxxxx Money together with an additional sum from Seller equal to Buyer’s actual, documented a out-of-pocket third party costs and expenses in connection with this transaction but in no event in excess of One Hundred Thousand Dollars ($100,000), or (ii) seek the remedy of specific performance to enforce Seller’s obligation to convey title to the Property to Buyer in accordance with the terms and conditions of this Agreement. If Buyer elects remedy (i) in the Center;preceding sentence, Buyer shall direct Title Company to record or release to Seller the quitclaim deed described in Section 18, below.
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises Notwithstanding Section 17(b) and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(eSection 17(c) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaidhereof, in addition no event shall such provisions limit the damages recoverable by either Party against the other Party due to any and all the other remedies available Party’s obligation to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of indemnify such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all Party in accordance with all Legal Requirementsthis Agreement.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 2 contracts
Samples: Real Estate Purchase Agreement, Real Estate Purchase Agreement (Zhone Technologies Inc)
Default and Remedies. 25.1 The occurrence of any of 21.1 In the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenantevent:
(a) Any failure by Tenant shall at any time fail to pay any item of Rent when due any of the Rent required to be paid by Tenant hereunder where and such failure continues for five a period of ten (510) business days after Tenant's ’s receipt of written notice that Tenant failed to pay the same is overdue;amount when due; provided, however, Landlord shall not be obligated to notify Tenant of Tenant’s failure to pay any item of Rent due under this Lease more than once during any twelve (12) month period during the Term; or
(b) A failure by Tenant shall fall to keep, perform or observe and perform any other provision of this Lease covenant, agreement, condition or undertaking hereunder and shall fail to be observed or performed by Tenant where remedy such failure continues for thirty default within ten (3010) days after written notice thereof from Landlordto Tenant; provided, that or if the nature of such default is one that will take longer than ten (10) days to remedy. Tenant fails to commence curing such that the same cannot with due diligence be cured default within said period, Tenant shall not be deemed ten (10) days and/or fails diligently to be in default if it shall within said period commence pursue such during and thereafter diligently prosecutes the same cure to completion;; or
(c) Any default The Premises shall be vacated by Tenant under for any other lease between period for which Tenant has not paid its Rent; Landlord shall have the right, without further notice to or demand, to re-enter and Tenant for other premises in the Center;
(d) The abandonment or vacation take exclusive possession of the Premises, provided that if with or without force or legal process, and to refuse to allow Tenant has vacated to enter the same or have possession thereof; to change the locks on the doors to the Premises, take possession of any furniture or other property in or upon the Premises (Tenant hereby waiving the benefit of all exemptions by law), sell the same at public or private sale without notice and is actively seeking a subtenant or assigneeapply the proceeds thereof to the costs of sale, no default shall be deemed to exist under this Lease so long as Tenant is paying payment of damages and payment of the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default rent due under this Lease.
25.2 In the event of ; and pursue any Event of Default other remedy permitted by law all without being liable to Tenant as aforesaid, in addition for any damages or to any and all other remedies available to Landlord prosecution therefor. Additionally, Landlord, at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its Landlord’s election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenantmay:
(a) The worth at act as agent of Tenant to relet the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent Premises for the balance of the Lease Term or for a shorter or longer term after and receive the time rents therefor, applying them first to the payment of damages suffered to the award exceeds the amount of such rental loss which Premises and rents due and to become due under this Lease, Tenant proves could be reasonably avoidedremaining liable for and hereby agreeing to pay Landlord any deficiency; plusor
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, cancel and terminate the "worth at the time remaining Term of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue free of this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom thereafter this Lease shall be applied as follows:
(a) null and void and the rents in such case shall be apportioned and paid on and up to the payment date of such entry. Thereafter both parties shall be released and relieved from any of any indebtedness of and all obligations thereafter to accrue hereunder. Tenant to Landlord other than rent due hereunder shall be liable for all loss and damage resulting from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;breach or default; or
(c) treat such default as an anticipatory breach of this Lease and, as liquidated damages for such default, be entitled to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residuedifference, if any, shall be held by Landlord and applied in payment of future rent as between the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion sum which, at the time of such rentals received from such reletting during any month, which is applied to termination for anticipatory breach represents the payment then present worth (computed at seven percent per year) of rent hereunder, be less than the rent excess aggregate rents and additional rents payable hereunder during that month by Tenantwould have accrued over the balance of the Lease Term including extensions, then Tenant shall pay had such deficiency to Landlord forthwith upon demandTerm not been prematurely terminated, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by over the rentals received from such reletting.
25.7 No re-entry or taking possession aggregate market rental value of the Premises by Landlord under this Article shall be construed as an election to terminate this over the Term (including extensions) that the Lease unless a written notice would have run had it not been prematurely terminated. The foregoing provisions override and control any conflicting provisions of such intention is given to Tenant or unless Section 93.002 of the termination thereof be adjudged by a court Texas Property Code of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right1990, as in this Lease elsewhere providedwell as any successor statute. TO THE EXTENT, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this LeaseAND ONLY IN THE CIRCUMSTANCES REQUIRED BY TEXAS LAW, LANDLORD SHALL USE OBJECTIVELY REASONABLE EFFORTS TO RELET THE PREMISES AFTER AN EVENT OF DEFAULT AND THE TERMINATION OF TENANT’S RIGHT TO POSSESSION OF THE PREMISES (INCLUDING, WITHOUT LIMITATION, SUCH CONCESSIONS AND FREE RENT AS LANDLORD DEEMS NECESSARY OR DESIRABLE); PROVIDED, HOWEVER, THAT TENANT EXPRESSLY AGREES THAT LANDLORD MAY OFFER ALL OR ANY PART OF THE PREMISES FOR ANY PERIOD, TO ANY TENANT AND FOR ANY USE WHICH LANDLORD MAY ELECT, AND THAT LANDLORD MAY OFFER FOR LEASE ANY VACANT SPACE IN THE BUILDING (OR IN OTHER BUILDINGS OWNED BY LANDLORD OR LANDLORD’S AFFILIATES) BEFORE OFFERING THE PREMISES FOR LEASE. TENANT FURTHER AGREES THAT IF WITHIN THIRTY (30) DAYS AFTER TERMINATION OF TENANT’S RIGHT TO POSSESSION OF THE PREMISES, LANDLORD PLACES A “FOR LEASE’ SIGN AT THE PREMISES, OR LANDLORD ENTERS INTO A LISTING AGREEMENT WITH A REAL ESTATE AGENT FOR THE LEASE OF THE PREMISES, OR LANDLORD ADVERTISES THE LEASED PREMISES FOR LEASE IN THE AUSTIN-AMERICAN STATESMAN (OR OTHER NEWSPAPER WITH A GENERAL CIRCULATION IN AUSTIN, TEXAS) AT LEAST ONCE PER MONTH, AND LANDLORD SHOWS THE PREMISES TO PROSPECTIVE TENANTS WHO REQUEST TO SEE THE PREMISES, LANDLORD CONCLUSIVELY SHALL BE DEEMED TO HAVE USED OBJECTIVELY REASONABLE EFFORTS TO RELET THE PREMISES AND TO HAVE FULFILLED ANY OBLIGATION TO MITIGATE DAMAGES BY REASON OF TENANT’S DEFAULT, TENANT ACKNOWLEDGES AND AGREES THAT LANDLORD SHALL NOT BE REQUIRED TO ACCEPT ANY TENANT WHICH TENANT MAY SUGGEST TO LANDLORD, AND THAT LANDLORD MAY UTILIZE IN RELETTING THE PREMISES THE SAME UNDERWRITING STANDARDS, AND STANDARDS OF REPUTATION IN THE COMMUNITY, WHICH LANDLORD APPLIES GENERALLY IN LEASING SPACE WITHIN THE BUILDING. TENANT FURTHER EXPRESSLY ACKNOWLEDGES AND UNDERSTANDS THAT LANDLORD CONSIDERS MANY FACTORS IN THE SELECTION OF TENANTS, INCLUDING WITHOUT LIMITATION, EXCLUSIVITY PROVISIONS IN EXISTING LEASES AND RESTRICTIVE COVENANTS, THE BALANCE OF USES WITHIN THE BUILDING, THE TENANT MIX WITHIN THE BUILDING, AND THE REPUTATION AND LOCAL, REGIONAL, OR NATIONAL NAME RECOGNITION AND CREDIT STANDING OF PROSPECTIVE TENANTS.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 2 contracts
Samples: Industrial Space Lease (XBiotech Inc.), Industrial Space Lease (XBiotech Inc.)
Default and Remedies. 25.1 The occurrence If Lessee ceases doing business as a going concern, or if any credit or financial information submitted to ThinkRenta by Lessee is materially untrue, or if a petition in bankruptcy, insolvency, or reorganization is filed by or against Lessee or any guarantor of Lessee’s obligations hereunder, or if Lessee or any guarantor of Lessee’s obligation makes an assignment for the benefit of creditors or if Lessee defaults in payment or other performance required under this lease or any other lease or agreement between ThinkRenta and Lessee, ThinkRenta may exercise any one or more of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
remedies: (a) Any failure by Tenant To declare the entire balance of rent hereunder immediately due and payable as to pay when due any or all schedules of Furniture, Equipment’s and Appliances covered hereby and to similarly accelerate the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written balances under any other leases between ThinkRenta and Lessee without notice that the same is overdue;or demand.
(b) A failure To sue for and recover all rents, and other monies due, concerning any or all items of Furniture, Equipment, and Appliances to the extent permitted by Tenant law.
(c) To require Lessee to observe assemble all Furniture, Equipment’s and perform Appliances at Lessee’s expense, at a place reasonably designated by ThinkRenta.
(d) To remove any physical obstructions for removal of the Furniture, Equipment’s and Appliances from the place where the Furniture, Equipment’s and Appliances is located and take possession of any or all items of Furniture, Equipment’s and Appliances, without demand or notice, wherever same may be located, disconnecting, and separating all such Furniture, Equipment’s and Appliances from any other provision property, with or without a court order or retaking hearing or other processes of law, it is understood that facility of repossession in the event of default is a basis for the financial accommodation reflected by this lease. Lessee hereby waives all damages occasioned by such retaking. ThinkRenta may, at its option, use, ship, store, repair, or lease all Furniture, Equipment’s and Appliances so removed and sell or otherwise dispose of any such Furniture, Equipment, and Appliances at a private or public sale. Lessee shall be liable for and shall pay to ThinkRenta (a) all expenses incurred by ThinkRenta in connection with the enforcement of any of ThinkRenta’s remedies, including all expenses of repossession, storing, shipping, repairing, and selling or leasing the Furniture, Equipment’s and Appliances, and (b) reasonable attorney’s fees. ThinkRenta and Xxxxxx acknowledge the difficulty in establishing a value for the unexpired lease term and owing to such difficulty agree that the provisions of this Lease paragraph represent an agreed measure of damages and are not to be observed deemed a forfeiture or performed penalty. If any payment is not made by Tenant where Xxxxxx when due hereunder, Lessee shall pay to ThinkRenta, not later than one month thereafter, an amount calculated at the rate of five percent one rupee of each such failure continues for thirty (30) days after written notice thereof from Landlord; provideddelayed payment, that if but only to the nature extent allowed by law, and may, to the extent permitted by law, be exercised concurrently or separately. The exercise of such default is such that the same cannot with due diligence be cured within said period, Tenant any one remedy shall not be deemed to be in default if it shall within said period commence an election of such during and thereafter diligently prosecutes remedy or to preclude the same to completion;
(c) Any default by Tenant under exercise of any other lease between Landlord and Tenant for other premises in remedy. No failure on the Center;
(d) The abandonment or vacation part of the PremisesThinkRenta to exercise and no delay in exercising any right or remedy shall operate as a waiver thereof or modify the terms of this lease. No part of these default and remedial provisions shall negate or in any way modify ThinkRenta’s right to use Lessee’s Security Deposit to the extent necessary to make good any arrears of rent and/or any damage, provided that if Tenant has vacated the Premises and is actively seeking a subtenant injury, expense, or assignee, no default shall be deemed liability caused to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In ThinkRenta by the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law default or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time breach of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, covenant as provided in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination paragraph 3 of this Leaselease agreement.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Rental Agreement
Default and Remedies. 25.1 The occurrence a. It shall be an event of any default hereunder (“Event of the following Default”) if Subtenant shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
fail to (ai) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder as and when due, where such failure continues shall continue for five a period of ten (510) business days after Tenant's Sublandlord notifies Subtenant in writing of such failure, (ii) perform any provision, term or condition of the Prime Lease within the timeframes set forth in Prime Lease, or (iii) perform any provision, term or condition of this Sublease (other than as specified in (i) above) within fifteen (15) days after Subtenant’s receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where from Sublandlord specifying such failure continues for thirty or, if it reasonably would require more than fifteen (3015) days to cure such failure, within a time reasonably necessary to cure such failure after written notice thereof from Landlord; provided, that if the nature Subtenant’s receipt of such default is such that written notice.
b. Upon the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation occurrence of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In Default, Sublandlord shall have the event of any Event of Default by Tenant as aforesaidright, at its option, in addition to any and all other rights and remedies available to Landlord in this Sublease or those of Prime Lessor in the Prime Lease, at law or in equity, Landlord to give Subtenant notice of Sublandlord’s termination of this Sublease as of a date specified therein. Upon the giving of such notice, the Term and the estate hereby granted shall have expire and terminate as if such date were the right to immediately terminate date fixed for the expiration of the Term.
c. If Sublandlord should be in default in the performance of any of its obligations under this Lease and all rights Sublease, which default continues for a period of Tenant hereunder by giving more than fifteen (15) days after receipt of written notice from Subtenant specifying such default, or if such default is of a nature to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
require more than fifteen (a15) The worth at days for remedy and continues beyond the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure cure (provided Sublandlord must have undertaken procedures to perform its obligations hereunder or whichcure the default within such fifteen (15) day period and diligently pursue such efforts to cure to completion), in the ordinary course of affairsSubtenant may, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment availing itself of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting remedies available at law and in making equity, at its option, incur any reasonable expense necessary to perform the obligation of Sublandlord specified in such alterations notice and repairs which are not covered by the rentals received deduct such expense from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord Rent and other charges next coming due under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such defaultSublease.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Sublease Agreement (Nitromed Inc)
Default and Remedies. 25.1 (a) The occurrence of any of the following events shall constitute an "EVENT OF DEFAULT" event of default (“Event of Default”) under this Lease by on the part of Tenant:
(ai) Any failure by Tenant to pay shall default in the payment of any Rent when due (including Annual Basic Rent, Tenant’s Operating Expense Share, Tenant’s Tax Share and Above Standard Services Rent), and such default shall continue for a period of ten (10) Business Days after written notice thereof from Landlord to Tenant; or
(ii) At any time that Tenant does not satisfy the Self-Insurance Net Worth Test, Tenant shall default in its obligation to maintain any policy of the Rent insurance that Tenant is required to be paid by maintain under Section 6.5 hereof, and such default shall continue for a period of ten (10) Business Days after written notice from Landlord to Tenant hereunder where of such default, which notice shall (A) specifically refer to Section 6.5 hereof, and the insurance policy which Tenant has failed to maintain, and (B) state, in all capital letters and in a prominent place, that the continuance of such failure continues to maintain insurance for five (5) business days Business Days after Tenant's ’s receipt of such written notice that the same is overdue;will constitute an Event of Default under this Section 7.1(a)(ii); or
(biii) A failure by Tenant to observe and perform shall default under any of its other provision of obligations under this Lease to be observed or performed by Tenant where (other than any default described in Section 7.1(a)(i) and (ii) above), and such failure continues default shall continue for a period of thirty (30) days after written notice from Landlord to Tenant thereof from Landlord; provided(or, that if the nature of such default is such that the same curable but reasonably cannot with due diligence be cured within said such thirty (30) day period, then Tenant shall not be deemed to be in default if it commence the cure thereof within such thirty (30) day period or thereafter shall within said period commence not diligently pursue such during and thereafter diligently prosecutes cure until the same to completion;is accomplished).
(cb) Any default by Tenant under any other lease between Landlord and Tenant for other premises in Upon the Center;
(d) The abandonment or vacation occurrence of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaidDefault, subject to Section 7.1(e) below, Landlord, in addition to any and all other remedies available to Landlord it at law or in equity, shall have the right to terminate this Lease, or terminate Tenant’s right to possession hereunder, by written notice to Tenant, whereupon the following provisions shall apply:
(i) Tenant shall immediately vacate the Leased Premises pursuant to Section 4.1 hereof, whereupon Landlord shall have the right to immediately terminate this Lease re-enter and all rights take possession of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:the Leased Premises.
(aii) The worth Landlord may immediately or at the any time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to thereafter re-enter the Premises and remove all property and persons therefromLeased Premises, and (x) repair any such property may be removed condition which shall constitute a default on Tenant’s part hereunder, and stored in a public warehouse or elsewhere at (y) remove any Tenant Property then located within the cost and for Leased Premises consistent with the account provisions of Tenant, all in accordance with all Legal RequirementsSection 5.3 hereof.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4iii) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due immediately or at anytime thereafter relet the Leased Premises or any part or parts thereof thereof, for such term time or terms times, at such rental or rentals and upon such other terms and conditions as Landlord deems reasonable, and Landlord may make any alterations or repairs to the Leased Premises that are necessary or proper to facilitate such reletting as office space. Landlord hereby agrees to use its commercially reasonable efforts to relet the Leased Premises to mitigate or otherwise reduce the damages for which Tenant may be liable hereunder; provided that in no event shall Landlord’s leasing or attempted leasing of other space in the Building instead of the Leased Premises, in and of itself, violate the provisions of this sentence. Any such reletting may be for such rent, for such time, and upon such terms as the Landlord, in its sole judgmentthe Landlord’s good faith discretion, may deem advisable shall determine, provided, that the same shall, in all events, be commercially reasonable. Landlord shall be deemed to have exercised commercially reasonable efforts to relet the Leased Premises so long as Landlord or Landlord’s agents employ marketing methods and procedures substantially similar to marketing methods and procedures used by Landlord or Landlord’s agents to market and lease other vacant space in the Building or other buildings, which are similar in nature and quality to the Building, owned by Landlord or an Affiliate of Landlord.
(iv) Landlord shall have the right to make repairs to recover from Tenant, as damages, the sum of (1) the full amount of all unpaid Annual Basic Rent and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) Additional Rent payable up to the payment time of such termination of this Lease (or termination of Tenant’s right to possession, as the case may be) (including, if applicable, any indebtedness of unpaid interest payable by Tenant to Landlord other than rent due hereunder from Tenant;
under Section 2.1(d) hereof), plus (b2) to the payment of all reasonable costs and expenses incurred by Landlord in connection with (x) evicting Tenant from the Leased Premises, and (y) any repairs or removals made pursuant to Section 7.1(b)(ii) above, plus (3) damages pursuant to either “(A)” or “(B)” below, as Landlord shall elect:
(A) damages, payable monthly throughout the period (the “Damages Period”) commencing on the day after the date of such reletting;termination and ending on the last day of the Term (determined without regard to any theretofore unexercised Renewal Options), in a monthly sum equal to the excess (if any) of (i) the monthly Rent which would have been payable by Tenant under this Lease for such month had this Lease remained in effect, over (ii) the monthly sums payable to Landlord for such month under any lease(s) of the Leased Premises then in effect (net of the reasonable costs incurred by Landlord to re-let the Leased Premises pursuant to such lease(s)) (it being agreed that Tenant shall not be entitled to receive any excess of the sums described in clause (ii) of this sentence over the sums described in clause (i) of this sentence); or
(B) damages, payable in a one-time lump-sum, equal to the excess, if any, of (i) the present value (discounted at the Prime Rate) of the total amount of all Rent which would have been payable by Tenant under this Lease for the entire Damages Period had this Lease remained in effect, over (ii) the present value (discounted at the same rate) of the fair market rental value of the Leased Premises for the entire Damages Period.
(c) If Landlord re-enters the Leased Premises after terminating this Lease pursuant to the payment of the cost of any alterations of and repairs to the Premises; andSection 7.1(b) above, Tenant hereby waives all claims for damages that may be caused by such re-entry by Landlord, other than claims based on Landlord’s willful misconduct or negligence.
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held The exercise by Landlord of any one or more of the rights and applied remedies provided in payment this Lease shall not prevent the subsequent exercise by Landlord of future rent any one or more of the other rights and remedies herein provided or otherwise permitted at law or in equity. Except as otherwise provided in this Lease, remedies provided for in this Lease are cumulative and may, at the same may become due election of Landlord, be exercised alternatively, successively, or in any other manner and payable hereunder. In no event shall Tenant be entitled are in addition to any excess rental received other rights provided for or allowed by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord law or in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such relettingequity.
25.7 No re-entry or taking possession of (e) Notwithstanding the Premises by provisions set forth in Section 7.1(b), Landlord under this Article shall be construed as an election to may not terminate this Lease pursuant thereto unless a Tenant shall have failed to pay, without the contractual right to xxxxx or offset as herein otherwise provided, Rent in an amount equal to or greater than the Threshold Default Amount, and such failure to pay continues, beyond the point of becoming an Event of Default, for an additional period of ten (10) Business Days following Tenant’s receipt of second written notice of such intention is given thereof from Landlord, which notice shall refer to Tenant this Section 7.1(e), and state in all capital letters (or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate other prominent display) that this Lease because of such defaultmay be terminated if Tenant fails to promptly pay all overdue Rent. The "Threshold Default Amount" shall mean an amount equal to two (2) months’ Annual Basic Rent hereunder.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Default and Remedies. 25.1 The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event violation by Grantor or Grantee of Default by Tenant as aforesaidany of the provisions of this Agreement, in addition to any and all other remedies available the right to Landlord at law collect damages and/or receive specific performance, the Grantor or in equity, Landlord shall Grantee will have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date seek an injunction of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law violation from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding The prevailing party in any reletting without termination by Landlord because such action shall be entitled to an award of Tenant's its reasonable attorney’s fees incurred in enforcing this Agreement. In addition, in the event the Grantee fails to perform any of the provisions of this Agreement or violates any of the provisions hereof, the Grantor may cure such default; provided, Landlord may at any time after such reletting elect to terminate this Lease because however, that written notice of such default.
25.8 Nothing contained in this Article shall constitute a waiver intention, specifying the nature of Landlord's right the alleged default and the actions to recover damages by reason of Landlord's efforts be performed, has been given to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring Grantee not less than thirty (30) days prior to a termination the commencement of such action or such lesser time if, in the reasonable judgment of the Grantor, such default is emergency in nature. In the event the Grantor fails to perform any of the provisions of this Lease.
25.9 Subject only Agreement or violates any provisions hereof, the Grantee may cure such default at the Grantee’s sole cost and expense; provided however, that written notice of such intention, specifying the nature of the alleged default and the actions to Article 31be performed, if Landlord shall retain an attorney for has been given to the purpose Grantor not less than thirty (30) days prior to the commencement of collecting any rental due from Tenant such action or enforcing any other covenant of this Leasesuch lesser time if, Tenant shall pay in the reasonable fees judgment of the Grantee, such default is emergency in nature, and only if the Grantor approves and authorizes the Grantee’s proposed cure in writing. If the Grantor elects to perform the action to have been performed by the Grantee, on completion of such attorney for his services regardless action, an itemized statement of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent costs thereof will be submitted to the Grantee, and any other sums the amount thereof will be immediately due and payable hereunder by Tenant the Grantee to the Grantor. The remedies specified herein shall bear interest be cumulative and in addition to all other remedies permitted at law or in equity. Notwithstanding anything in the maximum lawful rate per annum from foregoing that might be construed to the due date and until payment thereofcontrary, Grantor shall not be required to give notice to Grantee prior to repairing or arranging for the repair of tracks, facilities, or equipment damaged by Grantee or the City Improvements.
Appears in 1 contract
Samples: Easement Agreement
Default and Remedies. 25.1 The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay monetary obligation of Sublessee, including rental payments which are not paid when due, shall bear interest from the due date at a rate per annum of two (2) percentage points above the prime lending rate of Citibank, N.A., in effect on the first day of each month for the period during which any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same amount is overdue;outstanding. This provision does not limit any other remedies as provided hereunder.
(b) A failure If any voluntary or involuntary petition in bankruptcy shall be filed by Tenant or against Sublessee, or any voluntary or involuntary proceedings in any court or tribunal shall be instituted to observe declare Sublessee insolvent or unable to pay its debts, then upon such occurrence, but with or without entry or other action by Sublessor, this Sublease and perform Franchise Agreement shall immediately terminate, and, notwithstanding any other provisions of this Sublease, Sublessor shall forthwith upon such termination be entitled to recover damages in an amount equal to the rental herein provided for the residue of the term hereof.
(c) If Sublessee defaults in the payment of rent, or, if Sublessee defaults in the prompt and full performance of any other provision of this Lease to be observed or performed by Tenant where Sublease and such failure other default continues for thirty ten (3010) days after Sublessor's written notice thereof from Landlord; providedto Sublessee, that or if Sublessee makes an assignment for the nature benefit of creditors, or if a receiver be appointed for the property of Sublessee or if Sublessee abandons or vacates the Premises, then, and in any such event, Sublessor may, if Sublessor so elects, but not otherwise, and with or without notice of such default is such that election and with or without any demand whatsoever, either forthwith terminate this Sublease and Sublessee's right to possession of the same cannot with due diligence be cured within said periodPremises, Tenant shall not be deemed or without terminating this Sublease, terminate Sublessee's rights to be in default if it shall within said period commence such during possession of the Premises, and thereafter diligently prosecutes terminate the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;Franchise Agreement.
(d) The abandonment In addition to the remedies of Sublessor specified in the aforesaid paragraphs, the parties hereto agree that the only notices necessary to terminate this Sublease and Franchise Agreement are those enumerated herein, with all other notices and demands required by statute or vacation law being hereby waived by Sublessee, and further that this Sublease and the Franchise Agreement may also be terminated at the election of Sublessor without further notice or demand in the Premisesfollowing event:
(i) If Sublessee establishes a pattern of repeated defaults in that Sublessee fails to make any payment of money under this Sublease when due, provided or defaults in the performance of any covenants, undertakings, or obligations other than for the payment of money required by this Sublease to be performed by Sublessee, in three (3) consecutive calendar months or in any four (4) months during the same calendar year (whether the same or different failures or defaults are involved), then notwithstanding that if Tenant Sublessee has vacated cured within the Premises times prescribed for any such failures and defaults occurring in the first two (2) consecutive months or in any three (3) months in the same calendar year, it is actively seeking a subtenant nevertheless agreed that the occurrence of such failure of default for the third consecutive calendar month or assignee, no default for the fourth month in the same calendar year shall be conclusively deemed to exist under be an immediate material breach of this Lease so long as Tenant is paying Sublease permitting termination without further demand or notice of any kind and without any right on the Rent required part of Sublessee to be paid hereundercure; and
(ii) If Sublessee willfully falsifies any statement or report required to be submitted to Sublessor under the terms of this Sublease.
(e) Any other event herein specified If Sublessee attempts to be an Event of Default under or actually does pledge, hypothecate or mortgage this LeaseSublease to any third party, this Sublease shall immediately terminate.
25.2 (f) In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law Sublessor hereunder, and not by way of limitation, if Sublessee shall default in the observance or performance of any term or covenant on its part to be performed or observed under or by virtue of any of the terms of provisions in equityany article of this Sublease, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election Sublessor, without being under any obligation to do so. If Landlord shall elect to terminate this Leaseso and without thereby waiving such default, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of remedy such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and default for the account and at the expense of Tenant, all in accordance Sublessee. Such sums paid or obligations incurred with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) interest and costs shall elect be deemed to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable be additional rent hereunder and shall have the right be paid to make repairs to and alterations of the PremisesSublessor by Sublessee.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Default and Remedies. 25.1 The occurrence of (i) If Lessee defaults (a) in fulfilling any of the following shall constitute an "EVENT OF DEFAULT" covenants of this Lease, requiring the payment of rent, additional rent or other payments due under this Lease by Tenant:
Lease, or (ab) Any failure by Tenant to pay when due in strictly complying with any of the Rent required to be paid by Tenant hereunder where such failure other terms, conditions or provisions of this Lease, or (ii) if Lessee makes a general assignment for the benefit of creditors, is adjudged a bankrupt or files a petition for reorganization or arrangement, or if there has been an attachment or other judicial seizure of substantially all of Lessee's assets, then, in the case of nonpayment of rent or other charges which continues for five (5) business days after Tenant's receipt of Lessee receives from Lessor written notice that specifying such default, or if Lessee defaults in any one or more of the same is overdue;
events referred to in (b) A or (ii) above, then upon Lessee's receipt from Lessor of a written notice specifying the nature of said default and upon Lessee's failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where cure such failure continues for default within thirty (30) days after written receipt of Lessor's notice thereof from Landlord; providedthereof, that if the nature required (or if said default or omission complained of shall be of such default is such a nature that the same cannot with due diligence be completely cured or remedied within said thirty (30) day period, Tenant and if Lessee shall not be deemed have diligently commenced curing such default with such thirty (30) day period, and shall not thereafter with reasonable diligence and in good faith proceed to be in remedy or cure such default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
a commercially reasonable amount of time), then Lessor may serve a written five (c5) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation business day notice of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under cancellation of this Lease so long as Tenant is paying upon Lessee and upon the Rent required to be paid hereunder; and
expiration of said five (e5) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaidbusiness days, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant the term hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at end and expire as fully and completely as if the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount expiration of such rental loss which Tenant proves could have been reasonably avoided; plus
five (c5) The worth at business day period were the time of the award of the amount by which the unpaid rent day herein definitely fixed for the balance end and expiration of this Lease and the term after thereof and Lessee shall then quit and surrender the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary demised Premises to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing Lessor but Lessee shall remain liable as may be permitted by applicable California law from time to timehereinafter provided.
25.3 As used B) Upon any default by Lessee which is not cured within any applicable cure period following receipt of notice thereof, if required, then and upon a termination of this Lease as provided in subparagraphs (a) and (bSection 15.1(A) above, Lessor may without further notice re-enter the "worth at demised Premises and dispossess Lessee with process of law by summary proceedings or otherwise, and the time legal representatives of Lessee or other occupant of the award" is computed by allowing interest at demised Premises and remove their effects and hold the rate Premises as if this Lease had not been made, but Lessee shall remain liable hereunder as hereinafter provided and Lessee hereby waives the service of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time notice of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, intention to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to institute legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premisesthat end.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Deed of Lease (Etoys Inc)
Default and Remedies. 25.1 The occurrence A. In the event Purchaser fails to close the transaction contemplated herein in the time established for reasons other than Seller’s default or delay, and Seller agrees to extend the Closing in accordance with this Section 10.A, Purchaser shall, if Seller is still willing to close, be required to pay interest on the Purchase Price equal to the highest rate of interest per annum permitted to be charged by applicable prevailing law (such rate currently being eighteen (18%) percent per annum) from the date on which the Closing was originally scheduled, to and including the date on which the Closing actually occurs. Further, all prorations shall be made as of the date Closing was originally scheduled. Nothing in this Contract, however, shall require Seller to extend the Closing beyond the time set forth in this Contract or prevent Seller from treating Purchaser as being in default if Purchaser fails to close within that time.
B. Should Purchaser fail to make any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
payments herein above scheduled, or fail or refuse to execute the instruments required to close the transaction contemplated herein (aincluding failure to promptly execute and file mortgage loan application documents, and all mortgage loan and real estate Closing documents and to comply with the requirements of the mortgage lender, including providing any and all information as requested) Any failure by Tenant or refuse to pay when due any of costs or the Rent sum required by this Contract, or otherwise default hereunder, and shall fail to be paid by Tenant hereunder where correct such failure continues for default within five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant Seller has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless given Purchaser a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord then Seller may at any time after declare this Contract terminated and retain all deposits paid by Purchaser as liquidated and agreed-upon damages which Seller shall have sustained and suffered as a result of Purchaser’s default, and thereupon the parties hereto will be released and relieved from all obligations hereunder. These provisions for liquidated and agreed-upon damages are bona fide provisions for such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute and are not a waiver of Landlord's right to recover damages penalty, the parties understanding that by reason of Landlord's efforts the withdrawal of the Unit from sale to mitigate the general public at a times when other parties would be interested in purchasing the Unit, Seller will have sustained damages if Purchaser defaults, which damages will be substantial and would be extremely difficult or impossible to it caused determine with mathematical precision. Therefore, Seller and Purchaser have agreed that, by Tenant's default; nor shall anything in signing this Article adversely affect Landlord's rightContract, the parties acknowledge that the deposit(s) paid and agreed to be paid by Purchaser, with all accrued interest thereon, is (are) agreed upon, after negotiation, as the parties’ reasonable estimate of Seller’s liquidated damages in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to the event of a termination breach of this LeaseContract by Purchaser.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for C. If Seller defaults in the purpose of collecting any rental due from Tenant or enforcing any other covenant performance of this LeaseContract, Tenant nothing contained herein shall pay be deemed to restrict Purchaser’s remedies if Purchaser shall be entitled to such remedies under applicable law, including the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commencedright to seek specific performance.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Default and Remedies. 25.1 The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant If an Event of Default occurs and is continuing, the Lender shall have all of the remedies of a secured party under the Uniform Commercial Code, including, without limitation, the right, to notify the account debtors from which the Designated Receivables are owing to pay when due any directly to the Lender the amount owing from such account debtors to the Company in respect of the Rent required respective Designated Receivable. In addition to and not in derogation of any or all of the rights and remedies granted hereunder to the Lender or 14
(b) To the fullest extent permitted by law, the Company irrevocably and expressly waives any right to receive any notice of sale or notice of any other disposition of all or any part of the Collateral that does not consist of cash, except that to the extent the Company may be paid entitled by Tenant hereunder where applicable law to any notice of sale or other disposition of such failure continues for Collateral, the Company agrees that if such notice is mailed, postage prepaid, to the Company at the Company's address hereinafter specified not less than five (5) business days after Tenant's receipt before the time of written the sale or other disposition contemplated therein, such notice that the same is overdue;
(b) A failure by Tenant to observe shall conclusively be deemed commercially reasonable and perform shall fully satisfy any other provision requirement for giving of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant notice. The Lender shall not be deemed obligated to make any sale of Collateral regardless of notice of sale having been given. The Lender may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be in default if made at the time and place to which it shall within said period commence such during and thereafter diligently prosecutes the same to completion;was so adjourned.
(c) Any default The proceeds realized upon any such disposition, after deduction for the expenses of retaking, holding, preparing for sale, selling or the like and reasonable attorneys' fees, legal expenses and costs incurred by Tenant under any other lease between Landlord and Tenant for other premises the Lender, shall be applied in the Center;accordance with Section 5.06.
(d) The abandonment or vacation remedies of the PremisesLender hereunder are cumulative and the exercise of any one or more of the remedies provided for herein, provided that if Tenant has vacated or under the Premises and is actively seeking Uniform Commercial Code, shall not be construed as a subtenant waiver of any other rights or assignee, no default shall be deemed to exist under this Lease remedies of the Lender so long as Tenant is paying any part of the Rent required to be paid hereunder; and
(e) Any Secured Obligations remains unsatisfied or unperformed. The making of this Agreement shall not waive or impair any other event herein specified to be an Event security the Lender may have or hereafter acquire for the payment or performance of Default under this Lease.
25.2 In the event Secured Obligations, nor shall the making of any Event of Default by Tenant as aforesaid, in addition such additional security waive or impair this Agreement; but the Lender may resort to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then security it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as order it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premisesproper.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Supplemental Loan Agreement (NRG Generating U S Inc)
Default and Remedies. 25.1 The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" a default under this Lease by TenantLease:
(a) Any A. Tenant's failure by Tenant to pay when due rent or to make any of the Rent other payment required to be paid make by Tenant hereunder where such when due, which failure continues for five ten (510) business days after Tenant's receipt of written notice that thereof.
B. Abandonment or vacation of the Premises by Tenant, for any purpose except remodeling or restoration for a time period approved by Landlord, or as otherwise herein provided.
C. Tenant's failure to cause to be released any mechanic's or materialmen's liens filed against the Premises within thirty (30) days after receipt or notice of the date the same is overdue;shall have been filed.
(b) A D. Tenant's failure by Tenant to observe and or perform any other provision of this Lease to be observed or performed by Tenant Tenant, other than those described in Subparagraphs A, B, and C above, where such failure continues for thirty (30) days after receipt of written notice thereof from Landlordby Landlord to Tenant; provided, however, that if the nature of such default is such that the same failure cannot with due diligence reasonably be cured within said such thirty-day period, Tenant shall not be deemed to be in default if it Tenant shall within said such period commence such during cure and thereafter diligently prosecutes prosecute the same to completion;.
(c) Any default E. The insolvency of Tenant or the execution by Tenant of an assignment for the benefit of creditors; the filing for reorganization or arrangement under any other lease between Landlord and Tenant for other premises in law relating to bankruptcy or insolvency; or, the Center;
(d) The abandonment appointment of a receiver or vacation trustee to take possession of substantially all of the Premises, provided that if Tenant has vacated Tenant's assets located at the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under Tenant's interest in this Lease.
25.2 . In the event of any Event of Default default by Tenant as aforesaidhereunder, then, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately may at its option terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover damages from Tenant:
, including (a) The the worth at the time of the award of the unpaid rent payable hereunder which had has been earned at the date time of such termination; plus
(b) The the worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which that Tenant proves could have been reasonably avoided; plus
(c) The the worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which for such period that Tenant proves could be reasonably avoided; plus
and (d) Any any other amounts amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its his obligations hereunder under this Lease, or which, which in the ordinary course of affairs, things would be likely to result therefrom; and
(e) At Landlord's election. Alternatively, in the event of such other amounts in addition default, Landlord may elect not to or in lieu of terminate the foregoing Lease and Landlord may enforce rights and remedies under the Lease, including the right to recover rent as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, it becomes due. In the "worth at event Landlord terminates the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by TenantLease, Landlord shall also have the right, with or without terminating this Leaseright to reenter and take possession of the Premises, to re-enter the Premises and remove all persons and property and persons therefrom, and any such which property may be removed and stored in by Landlord at a public warehouse or of elsewhere at the cost risk, expense and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect and to re-enter as above provided relet the Premises, or shall take possession any part thereof, for the account of the Premises pursuant to legal proceedings or pursuant to any notice provided Tenant, for such term and upon such conditions and at such fullest extent permitted by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or proceeds of any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom reletting shall be applied as follows:
: first, to pay Landlord all costs and expenses of such reletting (a) to including without limitation, costs and expenses of retaking or repossessing the payment of Premises, removing persons and property therefrom, securing new tenants, and if Landlord shall maintain and operate the Premises, the cost thereof); second, pay any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) rent; third, to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and hereunder; fourth, the residue, if any, shall be held by Landlord and applied in payment of any other or future rent obligations of Tenant to Landlord as the same may become due and payable hereunder. In no event payable, and Tenant shall Tenant not be entitled to receive any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency revenue. Nothing in this paragraph shall be calculated and paid monthlydeemed to affect Landlord's right to indemnification for liabilities arising prior to termination of this Lease for personal injury or property damage under the indemnification clause or clauses contained in this Lease. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such No reentry or reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election by Landlord to terminate either Tenant'' right to possession or this Lease unless a written notice of such intention is given by Landlord to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding and notwithstanding any such reletting without termination by Landlord because of Tenant's defaultsuch termination, Landlord may at any time after such reletting thereafter elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of LandlordTenant's right to recover damages possession in this Lease. All covenants and agreements to be performed by reason Tenant under any of Landlord's efforts to mitigate the damages to it caused terms of this Lease shall be performed by Tenant at Tenant's default; nor sole cost and expense and without any set-off or abatement of rent. If Tenant shall anything fail to pay any sum of money, other than rent, required to be paid hereunder or shall fail to perform any other act on its part to be performed hereunder, and such failure shall continue beyond any applicable grace period set forth above, Landlord may, after notice to Tenant and expiration of the applicable cure period, but shall not be obligated to do so, and without waiving or releasing Tenant form any obligations or Tenant, make on Tenant's behalf any such payment or perform any such other act to be made or performed by Tenant as provided in this Article adversely affect Lease. All sums so paid by Landlord and all necessary incidental costs, together with interest thereon at the maximum legal rate permitted by the laws of California, to the date the default is cured, shall be payable to Landlord on demand, and Tenant covenants to pay any such sum. Landlord shall have, in addition to any other right or remedy or Landlord's right, the same rights and remedies in the event of the nonpayment thereof by Tenant as in the case of default by Tenant in the payment of rent. All remedies given to Landlord in this Lease elsewhere provided, shall not be exclusive but shall be cumulative and in addition to indemnification against liability for injury all remedies now or damage to persons hereafter at law or property occurring prior to a termination of this Leasein equity.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Lease Agreement (Coast Bancorp)
Default and Remedies. 25.1 The occurrence of If Sublessee shall default in fulfilling any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any terms, covenants or agreements hereof or of the Rent required to be paid by Tenant hereunder where Lease, and (i) in the case of a monetary default, such failure default continues for a period of five (5) business days after TenantSublessee's receipt of written notice that thereof, and (ii) in the same is overdue;
(b) A failure by Tenant to observe and perform any other provision case of this Lease to be observed or performed by Tenant where a non-monetary default, such failure default continues for thirty a period of fifteen (3015) days after Sublessee's receipt of written notice thereof from Landlord; providedthereof, that or such longer period as may be necessary if the nature of such default is such that the same cannot with due diligence reasonably be cured within fifteen (15) days, provided that Sublessee commences to cure such default within fifteen (15) days and thereafter proceeds to diligently complete the same, Sublessor may give Sublessee three (3) days' written notice of intention to end the term of this Sublease, and at the end of said period, Tenant the Sublease Term shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes expire with the same to completion;
(c) Any default by Tenant under effect as if that day were the date hereinbefore set forth for the expiration of the Sublease Term without a necessity of re-entry or any other lease between Landlord and Tenant act on Sublessor's part, any requirement for any other premises in act or notice by Sublessor being hereby waived by Sublessee. If the Center;
(d) The abandonment or vacation of the PremisesSublease is terminated, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default Sublessee shall be deemed and remain liable to exist under this Lease so long Sublessor for damages as Tenant is paying hereinafter provided and Sublessor shall be entitled to recover forthwith from Sublessee as damages an amount equal to the Rent required to be paid hereundertotal of; and
(ei) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth sums remaining unpaid at the time of the award termination of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
Sublease, and (bii) The worth at the time of the award of the amount by which the unpaid rent which of all other sums that would have been earned after termination and until payable hereunder if the time Sublease had not been terminated, less the net proceeds, if any, of any reletting of the award exceeds the amount Leased Premises, after deducting all of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by TenantSublessor's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and reasonable expenses incurred by Landlord in connection with such reletting;
(c) to the payment . No provisions of the cost Sublease shall limit or prejudice the right of any alterations of and repairs Sublessor to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent prove or obtain as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover liquidated damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a any termination of this Lease.
25.9 Subject only the Sublease, an amount equal to Article 31, if Landlord shall retain an attorney for the purpose maximum allowed by any statute or rule of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest law in effect at the maximum lawful rate per annum from time, when, and governing the due date and until payment thereofproceedings in which, such damages are to be proved, whether or not such amount be greater, equal to, or less than the amount referred to above.
Appears in 1 contract
Default and Remedies. 25.1 The In addition to the circumstances hereinbefore set forth, the occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under a material breach and default of this Lease by Tenant:
(a) Any failure The filing of any voluntary petition or similar pleading under any section or sections of any bankruptcy or insolvency act by or against Tenant, the institution of any voluntary or involuntary proceeding in any court or tribunal to declare Tenant insolvent or unable to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt debts and, solely in the case of written notice that any insolvency petition or proceeding, such petition or proceeding is not dismissed within thirty (30) days from the same date it is overdue;filed, the making of an assignment for the benefit of its creditors by Tenant, or the appointment of a trustee or receiver for Tenant or the Tenant's property.
(b) A Tenant's failure by Tenant to observe pay the Base Rental or any other sum due hereunder if such non-payment continues for ten (10) or more days after the same be due and perform payable or Tenant's default in the prompt and full performance of any other provision of this Lease and (unless such default involves a hazardous condition, in which event such default shall be cured forthwith upon Landlord's demand) such Tenant fails to be observed or performed by Tenant where cure such failure continues for thirty default within twenty (3020) days after written notice thereof from Landlord; provided, that if the nature of such default is such demand by Landlord that the same candefault be cured. After ten (10) days, Landlord will provide written notice to Tenant of its delinquent Base Rental (or any other sum due hereunder) twice in any given twelve (12) month period and Landlord further agrees that Tenant will have ten (10) days from the receipt of Landlord's notice to satisfy the delinquent account. Landlord will not with due diligence be cured place Tenant in default unless the delinquent account is no satisfied within said ten (10) day period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;.
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist levy upon Tenant's interest under this Lease so long as Tenant is paying or in the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event Premises or the attachment thereof by process of Default under this Lease.
25.2 law. In the event of any Event of Default default as aforesaid by Tenant as aforesaidTenant, the Landlord, in addition to any and all other rights or remedies available to Landlord it may have at law or in equity, shall have the option of pursuing any one or more of the following non-exclusive remedies:
(i) Landlord shall have the immediate right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises entry and may remove all property and persons therefrom, and any such property may be removed and stored in from the Premises to a public warehouse or elsewhere at the cost of, and for the account of of, Tenant, all in accordance with all Legal Requirements.without being deemed guilty of trespass, or becoming liable for any loss, damage or damages which may be occasioned thereby;
25.5 If (ii) Landlord (in accordance with California Civil Code Section 1951.4) shall elect may, from time to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate time without terminating this Lease, Landlord may continue and without releasing Tenant in whole or in part from Tenant's obligation to pay Base Rental and all other amounts due under this Lease and to perform any and all of the covenants, conditions and agreements to be performed by Tenant as provided in this Lease, make such alterations and repairs as may either recover all rental as it becomes due or be necessary in order to relet the Premises. Landlord may, but shall not be obligated to, relet the Premises or any part or parts thereof for such term or terms (which may be for a term extending beyond the Term of this Lease) at such rental or rentals and upon such provisions other terms and conditions as Landlord, Landlord in its sole judgment, discretion may deem advisable or acceptable. Tenant shall pay Landlord as soon as ascertained and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of upon demand all costs and expenses incurred by Landlord in connection with such reletting and in making any alterations and repairs, including, without limitation, the value of any "free rent" and rental concessions and the unamortized cost of tenant improvements or allowances given to Tenant or made at Landlord's expense. Upon each reletting all rentals received by Landlord from such reletting shall be applied; first, to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second, to the payment of any unpaid costs and expenses of such reletting;
(c) , including brokerage fees and attorney's fees and the costs of such alterations and repairs; third, to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent Base Rental due and unpaid hereunder and hereunder; and, fourth, the residue, if any, shall be held by Landlord and applied in payment payments of future Base Rental and other additional rent or charges as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder, including Base Rental, additional rent and all other charges. Should that portion of If such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, month be less than the rent payable hereunder that to be paid during that such month by TenantTenant hereunder, then including Base Rental, additional rent and all other charges, Tenant shall pay any such deficiency to Landlord forthwith upon demand, and said Landlord. Such deficiency shall be calculated and paid monthly. Notwithstanding any such reletting without termination, Landlord may at any time thereafter terminate this Lease for such previous breach;
(iii) Landlord may terminate this Lease, in which event Tenant shall also immediately surrender possession of the Premises, and Landlord may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the Premises, reasonable attorneys' fees and costs, the value of any "free rent" and rental concessions, the unamortized cost of tenant improvements or allowances given to Tenant or made at Landlord's expense, and the present value of all rentals payable under this Lease to Landlord for the remainder of the Term, all of which amounts shall be immediately due and payable from Tenant to Landlord. Landlord's re-entry, demand for possession, notice that the tenancy hereby created will be terminated on the date therin named, institution of an action of forcible detainer, or ejectment or the entering of a judgment for possession in such action or any other act or acts resulting of a judgment for possession in such action or any other act or acts resulting in the termination of Tenant's right to possession of the Premises shall not relieve Tenant from Tenant's obligation to pay all sums due hereunder during the balance of the Term, except as herein expressly provided. Landlord may collect and receive any Base Rental, additional rent, or charges due from Tenant, and the payment thereof shall not constitute a waiver of or affect any notice or demand given, and instituted or judgment obtained by Landlord, or be held to waive, affect, change, modify or alter the rights or remedies which Landlord has in equity or at law or by virtue of this Lease. All sums past due under this Lease shall bear interest at the lesser of a per annum rate of eighteen percent (18%) or the maximum lawful rate, from due date thereof until paid-in-full. Except as soon as ascertained expressly provided in this Lease, Tenant hereby waives any and upon demandevery form of demand and notice prescribed by statute or other law, including without limitation the notice of any elections or remedies made by Landlord under this Paragraph, demand for payments of any rent, or demand for possession. All rights and remedies of Landlord created or otherwise existing at law are cumulative and the exercise of one or more rights or remedies shall not be taken to exclude or waive the right to exercise any other. Tenant shall and hereby agrees to pay all costs and expenses incurred by Landlord in connection with such reletting and in making enforcing any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant covenants and agreements of this Lease, Tenant shall pay the reasonable fees or as a result of such attorney for his services regardless of the fact that no legal proceeding or an action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.brought
Appears in 1 contract
Samples: Lease Agreement (Dfi Aeronomics Inc)
Default and Remedies. 25.1 The occurrence of any of (a) This Agreement and the lease granted under this Agreement are subject to the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenantlimitations:
(ai) Any failure by if Tenant to pay shall default in the payment when due of Fixed Rent or any of other charges payable under this Agreement, including the Rent required to be paid by Tenant hereunder where Electricity Charge, and such failure continues default shall continue for five (5) business days Business Days after Landlord shall have given Tenant written notice thereof or
(ii) if Tenant shall default in the observance or performance of any other term, covenant or condition of this Agreement on Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease part to be observed or performed by and Tenant where shall fail to remedy such failure continues for thirty (30) default within 15 days after written notice thereof from Landlord; providedby Landlord to Tenant of such default, that or if the nature of such default is of such a nature that the same it cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall completely remedied within said period commence of 15 days and the continuation of which for the period required for cure will not subject Landlord to the risk of criminal liability or termination of any Superior Lease or foreclosure of any Mortgage, if Tenant shall not, (i) within said 15 day period advise Landlord of Tenant's intention duly to institute all steps necessary to remedy such during situation, (ii) duly institute within said 15 day period, and thereafter diligently prosecutes and continuously prosecute to completion all steps necessary to remedy the same to completion;and (iii) complete such remedy within such time after the date of the giving of said notice by Landlord as shall reasonably be necessary, or
(ciii) Any if Tenant shall default by Tenant in the observance or performance of any term, covenant or condition on Tenant's part to be observed or performed under any other lease between with Landlord and Tenant for or Landlord's predecessor-in-interest of any other premises space in the Center;
Building, and such default shall continue beyond any grace period set forth in such other lease for the remedying of such default, then, in any of the foregoing events, Landlord may (dA) The abandonment give Tenant a notice of intention to end the term of this Agreement at the expiration of three days from the date of the service of such notice of intention, and upon the expiration of said three days, this Agreement shall terminate but Tenant shall remain liable for damages as provided below, or vacation of (B) without notice, reenter the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant either by summary dispossess proceedings or assigneeby any suitable action or proceeding at law or otherwise (excluding force), no default shall be deemed to exist under whether or not Landlord terminates this Lease so long as Tenant is paying the Rent required to be paid hereunder; andAgreement.
(eb) Any other event herein specified If this Agreement shall terminate in accordance with subparagraph (a) above, or if Landlord shall reenter the Premises, Landlord may remove all of Tenant's personal property and discontinue all services to be an Event of Default under this Lease.
25.2 Tenant In the event of any Event termination of Default by this Agreement or if Landlord shall reenter the Premises under the provisions of this Agreement, (i) Tenant as aforesaid, in addition shall pay to any Landlord all Fixed Rent and all other remedies available unpaid additional rent and charges payable up to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of such termination or reentry (as the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which case may be), plus all Fixed Rent that would have been earned after termination and until payable through the time scheduled Expiration Date of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or whichthis Agreement, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (bii) aboveTenant shall pay to Landlord all expenses, the "worth at the time of the award" is computed including court costs and attorneys' fees and disbursements, incurred by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used Landlord in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take recovering possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Leaseall costs and charges for the care of the Premises while vacant In such event, Landlord also may continue this Lease and may either recover all rental as it becomes due or (but shall not be obligated to) relet the Premises or to a third party, without releasing Tenant from any part or parts thereof for of its obligations under this Agreement, except that Tenant shall receive a credit against such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right unpaid obligations equal to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals any fixed rent actually received by Landlord therefrom shall be applied as follows:
(a) to the payment from such third party, after deducting all of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and Landlord's expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice or the negotiation, execution and delivery of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.third party lease agreement
Appears in 1 contract
Default and Remedies. 25.1 The occurrence A. If Purchaser fails to close in accordance with the terms of any this Agreement, the Deposit shall be retained by Seller as liquidated damages which shall be Seller's sole remedy for such failure. Seller and Purchaser acknowledge and agree that: (i) the Deposit is a reasonable estimate of and bears a reasonable relationship to the damages that would be suffered and costs incurred by Seller as a result of having withdrawn the Property for sale and the failure of Closing to occur due to a default of Purchaser under this Agreement; (ii) the actual damages suffered and costs incurred by Seller as a result of such withdrawal and failure to close due to a default of Purchaser under this Agreement would be extremely difficult and impractical to determine; (iii) Purchaser seeks to limit its liability under this Agreement to the amount of the following Deposit in the event this Agreement does not close due to a default of Purchaser under this Agreement; and (iv) such amount shall constitute an "EVENT OF DEFAULT" under valid liquidated damages. If Seller is unable to close in accordance with the terms of this Lease by Tenant:
Agreement due to Seller's inability to (i) deliver title to the Property as provided in Section 3 above, or (ii) remake and restate at the time of Closing the representations and warranties set forth in Section 6 above, Purchaser's recourse against Seller shall be limited to either (a) Any failure by Tenant to pay when due any terminating this Agreement and receiving a return of the Rent required Deposit plus all interest accrued thereon plus reimbursement for actual third-party expenses incurred by Purchaser in this transaction not to be paid by Tenant hereunder where such failure continues for exceed Twenty-five Thousand Dollars (5) business days after Tenant's receipt of written notice that the same is overdue;
$25,000), or (b) A failure by Tenant completing Closing hereunder without any abatement in the Purchase Price.
B. After Closing and subject to observe any limitations set forth in this Agreement, including but not limited to Section 12.L, Seller and perform any other provision Purchaser shall, subject to the terms and conditions of this Lease to be observed or performed by Tenant where Agreement, have such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during rights and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long remedies as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies are available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof but only for such term or terms and upon such provisions obligations as Landlord, in its sole judgment, may deem advisable and expressly survive Closing; except that neither Seller nor Purchaser shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereofother exemplary, punitive or special damages.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pennsylvania Real Estate Investment Trust)
Default and Remedies. 25.1 The occurrence of any (a) Each of the following shall constitute an "EVENT OF DEFAULT" under be deemed a breach of this Lease and a default ("Default") by TenantLessee:
(ai) Any failure by Tenant to pay If any material representation or warranty of Lessee herein or the Seller in the Agreement was false when made, or in the event that any such representation or warranty is continuing and becomes false at any time, or if Lessee renders any false statement or account;
(ii) If any Rent due any of the Rent required to be paid by Tenant hereunder where such failure continues remains unpaid for five (5) business days after Tenant's receipt the due date thereof;
(iii) If Lessee becomes insolvent, makes a general assignment for the benefit of written notice that creditors, seeks or consents to the appointment of a trustee or liquidator, shall dissolve or liquidate all or a material portion of its assets, performs any act of bankruptcy or is not generally paying its debts as the same become due;
(iv) If Lessee fails to perform any of the covenants, conditions or obligations of this Lease;
(v) If Lessee ceases to operate financial institution activities at the Premises;
(vi) If there is overdue;a breach, default, termination or expiration under any of those leases shown on Exhibit B attached hereto ("Counterpart Leases").
(b) A failure If any breach or default does not involve the payment of any rental or other monetary sum, is not willful or intentional, does not place any rights or property of Lessor in immediate jeopardy, is not known to Lessee (unless Lessor has given Lessee notice thereof) and is within the reasonable power of Lessee to cure within 20 days after notice thereof (all as determined by Tenant to observe Lessor in its reasonable discretion), then such event shall not constitute a default hereunder, unless otherwise expressly provided herein, until Lessor shall have given Lessee notice thereof and perform any other provision a period of this Lease to be observed or performed by Tenant where such failure continues for thirty twenty (3020) days after written notice thereof from Landlord; providedshall have elapsed, that if the nature during which period Lessee may correct or cure such event, upon failure of such default is such that the same cannot with due diligence be cured within said period, Tenant which a Default shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;have occurred 128
(c) Any default In case of a temporary use of the whole or any part of the Premises by Tenant under a Taking, this Lease shall remain in full force and effect, without any reduction of rent or any other lease sums payable hereunder. Lessee shall be entitled to the entire award for such Taking, whether paid by damages, rent or otherwise, unless the period of occupation and use by the condemning authorities shall extend beyond the date of expiration of the Lease, in which case the award made for such Taking shall be apportioned between Landlord Lessor and Tenant for other premises Lessee as of the date of expiration. At the termination of any such use or occupation of the Premises, Lessee will, at its own cost and expense, promptly commence and complete the restoration of the Premises. Lessee shall not be required to make the restoration if the term of this Lease shall expire prior to, or within one year after, the date of termination of the temporary use so taken, and in such event, Lessor shall be entitled to recover all damages and awards arising out of the Center;failure of the condemning authority to repair and restore the building at the expiration of such temporary taking.
(d) The abandonment In the event of (i) a Taking of less than all of the Premises other than a temporary use ("Partial Taking"); or vacation (ii) of damage or destruction to all or any part of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant all awards, compensation or assignee, no default damages shall be deemed paid to exist Lessor, and Lessor shall have the option to terminate this Lease by notifying Lessee in writing within 60 days after Lessee gives Lessor notice of such damage or destruction or that title has vested in the taking authority. Lessee shall thereupon have a period of 60 days in which to elect in writing to continue this Lease on the terms herein provided. If Lessee does not elect to continue this Lease or shall fail during such 60-day period to elect to continue this Lease, then this Lease shall terminate as of the last day of the month during which such period expired. Lessee shall then immediately vacate and surrender the Premises, all obligations of either party hereunder shall cease as of the date of termination and all such awards, compensation or damages shall be paid to Lessor and Lessor shall be under no obligation make any payment therefrom to Lessee. If Lessor does not elect to terminate this Lease, or if Lessor so elects but Lessee elects to continue this Lease, then this Lease shall continue on the following terms: Rental and other sums due under this Lease so long shall continue unabated, and Lessee shall promptly commence and diligently prosecute restoration of the Premises to the same condition, as Tenant nearly as practicable, as prior to such partial condemnation, damage or destruction as approved by Lessor in its sole discretion. Lessor shall promptly make available in installments as restoration progresses an amount equal to any award, compensation or damages received by Lessor, (or if stemming from an event prior to the commencement of this Lease for which Lessor has an established construction escrow, from the amount held in said escrow), upon written request of Lessee accompanied by evidence reasonably satisfactory to Lessor that such amount has been paid or is paying due and payable and is properly a part of such costs and that there are no mechanics' or similar liens for labor and materials theretofore supplied in connection with the Rent required restoration. Lessor shall be entitled to keep any portion of such award, compensation or damages which may be paid hereunder; andin excess of the cost of restoration, (unless the balance is from an existing construction escrow, as set forth above), and Lessee shall bear all additional costs, fees and expenses of such restoration in excess of the amount of any such award, compensation or damages.
(e) Any other event herein Notwithstanding the foregoing, if at the time of any Taking or at any time thereafter Lessee shall be in Default, such Default shall be continuing, Lessor is hereby authorized 129 hereunder without further notice or demand of any kind. If any breach or default cannot reasonably be cured with the 20-day period, as determined by Lessor in its reasonable discretion, and Lessee is diligently pursuing a cure of such breach or default, then Lessee shall, after receiving notice specified herein, have a reasonable period as determined by the Lessor to be an Event of Default under this Leasecure such breach or default.
25.2 (c) In the event of any Event of Default breach or default, and without any notice, except, if applicable, the notice required under certain circumstances by Tenant paragraph (b) above or such other notice as aforesaid, in addition to any may be required by law and cannot be waived by Lessee (all other notices being hereby waived), Lessor shall be entitled to exercise, at its option, concurrently, successively or in any combination, all remedies available to Landlord at law or in equity, Landlord including, without limitation, any one or more of the following:
(i) To terminate this Lease;
(ii) To re-enter and take possession of the Premises or any part thereof (which re-entry shall have the right not operate to immediately terminate this Lease unless Lessor expressly so elects), of any or all personal property or fixtures of Lessee upon the Premises, and of all franchises, licenses, permits and other rights or privileges of Tenant hereunder by giving written notice Lessee pertaining to Tenant the use and operation of its election to do so. If Landlord shall elect to terminate this Leasethe Premises, then it may recover from Tenant:if any and if assignable;
(aiii) The worth To seize all personal property and fixtures upon the Premises which Lessee owns or in which it has an interest, in which Lessor shall have a landlord's lien and is hereby granted a security interest, and to dispose thereof in accordance with laws prevailing at the time of the award of the unpaid rent payable hereunder which had been earned at the date and place of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount seizure or to remove all or any portion of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may cause the same to be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.Lessee;
25.5 If Landlord (in accordance with California Civil Code Section 1951.4iv) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or To relet the Premises or any part or parts thereof for such term or terms (including a term which extends beyond the original term of this Lease), at such rentals and upon such provisions other terms as LandlordLessor, in its sole judgmentdiscretion, may deem advisable determine, with all proceeds received from such reletting being applied to the rentals and other sums due from Lessee in such order as Lessor may, in its sole discretion, determine, with Lessee remaining liable for any deficiency;
(v) To recover from Lessee an amount equal to the difference between the rentals and such other sums (including all sums required to be paid by Lessee, such as taxes and insurance) to be received from the date of such Default to the expiration of the original term hereof and the reasonable long term rental value of the Premises for the same period; and/or
(vi) To recover from Lessee all expenses, including attorneys' fees, reasonably paid or incurred by Lessor as a result of such breach. In addition, in the event of any Default by Lessee, Lessor may, but shall not be obligated to, immediately or at any time thereafter, and without notice, except as required herein, 130 correct such Default for the account and at the expense of Lessee. Any sum or sums so paid by Lessor, together with interest at the Default Rate and all costs and damages, shall be deemed to be additional Rent hereunder and shall be immediately due from Lessee to Lessor. If any Default or threatened Default by Lessee of any of the agreements, terms, covenants, or conditions contained in this Lease shall occur, Lessor shall be entitled to enjoin such Default or threatened Default and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet invoke any right or remedy allowed at law or in equity, or by statute or otherwise, as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No though re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained summary proceedings and other remedies were not provided for in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Argo Bancorp Inc /De/)
Default and Remedies. 25.1 The occurrence Borrower shall be in default under this Agreement if at any time any warranty, representation, certificate or statement of Borrower is not true, if Borrower should fail to observe or perform any agreement or term set forth in this Agreement or in the Note, AND 30 days have elapsed since the Lender shall have provided Borrower written notice of the following default and the Borrower shall constitute an "EVENT OF DEFAULT" not have cured such default within a reasonable time after such notice. If Borrower is in default under this Lease by Tenant:
Agreement, then subject to the subordination provisions set forth in the Note: (ai) Any failure by Tenant in addition to pay when due any other rights and remedies which Lender may have, Lender shall have and may exercise immediately and without demand, any and all the rights and remedies granted to a secured party upon default under the Uniform Commercial Code; (ii) upon the request or demand of Lender, Borrower shall, at Borrower's expense, assemble the Collateral and make it available to Lender at a convenient place acceptable to Lender; (iii) Borrower shall immediately execute and deliver to Lender any and all instruments, documents, or any similar items which Lender, in its sole discretion, deems necessary to dispose of said Collateral and Borrower hereby appoints Lender its attorney in fact to execute, sign and seal any and all instruments, documents, or any similar items which the Lender, in its sole discretion, deems necessary to dispose of the Rent required Collateral after default; and (iv) Borrower shall pay to be Lender on demand any and all costs and expenses, including reasonable attorneys' fees, including costs, and expenses incurred or paid by Tenant hereunder where such failure continues Lender in protecting and enforcing Liabilities and the right of Lender hereunder, including Lender's right to take possession of the Collateral and to hold, prepare for sale, sell and dispose of the Collateral, whether or not a lawsuit is instituted. Any notice of sale, disposition or other intended action by Lender, sent to Borrower at the address of Borrower as may from time to time be shown on Lender's records, at least five (5) business days after Tenantprior to such action, shall constitute reasonable notice to Borrower although a shorter period of notice may also be reasonable. It shall be commercially reasonable for Lender to sell the Collateral on a wholesale basis to a dealer or dealers in new or used property of like kind to the Collateral, or to sell to a purchaser directly or through a dealer in such new or used property; but the enumeration of the foregoing methods of disposition are without limitation on Lender's receipt right to dispose of written notice that the same is overdue;
(b) A failure Collateral by Tenant to observe and perform any other provision of this Lease to be observed manner or performed method (whether by Tenant where such failure continues for thirty (30sale, lease or otherwise) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord commercially reasonable manner. Lender shall have the right to immediately terminate this Lease and apply all rights or any part of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Leaseany surplus if any, then it may recover from Tenant:
(a) The worth at the time disposition of the award Collateral to (or to hold same as a reserve against) all or any Liabilities of the unpaid rent payable hereunder which had been earned at the date Borrower to Lender, whether or not they, or any of them, be then due, and in such termination; plus
(b) The worth at the time order of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing application as Lender may be permitted by applicable California law from time to timetime elect.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Asset Purchase Agreement (Smart Choice Automotive Group Inc)
Default and Remedies. 25.1 The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant In the event either party fails to pay when due observe covenant or perform any obligation under this Lease, the nondefaulting party may serve upon the defaulting party written notice specifying the nature of the Rent required to be paid by Tenant hereunder where default. The defaulting party shall cure such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for default within thirty (30) days after written notice thereof from Landlord; provided, that if its receipt of said notice. If the nature of such default is such that the same canit could not with due diligence reasonably be cured within said thirty (30) day period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default defaulting party shall be deemed to exist under this Lease have complied with the nondefaulting party's notice, so long as it commences to cure its default within thirty (30) days of its receipt of the notice and diligently pursues such cure to completion thereafter, but in no event shall such cure period exceed an additional sixty (60) days from the end of said thirty (30) day period. If the default is not cured as herein required, this Lease may be terminated, at the option of the nondefaulting party, at or as of the expiration of such cure period. A default in the payment of Rent shall be subject to all the terms of this Paragraph except that the cure period shall be fifteen (15) days. In the event of any uncured default of Landlord, Tenant is paying may axxxx the Rent required to be paid hereunder; andthe extent that Landlord’s default has caused the Leased Premises to become unusable by Tenant. In the event of Tenant having committed an uncured default, notwithstanding anything to the contrary herein, Landlord shall undertake its best efforts to mitigate any damages it may otherwise suffer by reason of such uncured default.
(eb) Any Except as specifically provided for to the contrary in this Lease, no termination of this Lease pursuant to this Paragraph 11 shall relieve either party from liability for any obligation arising prior to the date of termination, nor shall the defaulting party be relieved of any liability for damages or losses suffered by the non-defaulting party. Rights or remedies expressed in this Lease or otherwise available at law or in equity shall each be deemed cumulative with all others and none shall be exclusive of any other. Either party may pursue any or all such rights or remedies, at its sole discretion, without prejudicing its ability to resort to any other. No exercise of any right or remedy hereunder shall be deemed a waiver by such party of the failure of the other event herein specified party to be an Event of Default properly perform its duties under this Lease.
25.2 (c) In the event of any Event of Default by Tenant as aforesaidlitigation, in addition to any and all other remedies available to Landlord at law mediation, summary proceedings or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
similar action (a"action") The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts is necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and enforce any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant provision of this Lease, Tenant the parties hereto agree that each party shall pay the reasonable be responsible for its respective expenses, including attorney fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum court costs, without contribution from the due date other party whatsoever. In the interest of obtaining a speedier and until payment thereofless costly hearing of any dispute, the parties hereby each waive the right to trial by jury.
Appears in 1 contract
Default and Remedies. 25.1 15.01 The following events shall be deemed to be events of default by Tenant under this Lease:
(1) Tenant shall fail to pay any installment of rental or any other amount payable to Owner as herein provided and such failure shall continue for a period of five (5) days.
(2) Tenant shall fail to comply with any term, provision or covenant of this Lease, other than the payment of rental or any other amount payable to Owner and shall not cure such failure within ten (10) days after written notice thereof to Tenant.
(3) Tenant or any guarantor of Tenant’s obligations under this Lease shall become insolvent, or shall make a transfer in fraud of creditors, or shall make an assignment for the benefit of creditors.
(4) Tenant or any guarantor of Tenant’s obligations under this Lease shall file a petition under any section or chapter of the National Bankruptcy Act, as amended, or under any similar law or statute of the United States or any State thereof; or Tenant or any guarantor of Tenant’s obligations under this Lease shall be adjudged bankrupt or insolvent in proceedings filed against Tenant or any guarantor of Tenant’s obligations under this Lease.
(5) A receiver or Trustee shall be appointed for all of the Leased Premises or for all or substantially all of the assets of Tenant or any guarantor of Tenant’s obligations under this Lease.
(6) Tenant shall desert or vacate any portion of the Leased Premises.
(7) Tenant shall do or permit to be done anything which creates a lien upon the Leased Premises.
(8) The business operated by Tenant shall be closed for failure to pay any State sales tax as required or for any other reason.
(9) Tenant shall fail to comply with any terms or conditions of any other contract or agreement by and between Owner and Tenant which relate to the Leased Premises. Upon the occurrence of any such event of default, Owner shall have the option to pursue any one or more of the following remedies without any notice or demand whatsoever:
A. Terminate this Lease in which event Tenant shall constitute an "EVENT OF DEFAULT" immediately surrender the Leased Premises to Owner, and if Tenant fails to do so, Owner may, without prejudice to any other remedy which Owner may have for possession or arrearages in rental, enter upon and take possession of the Leased Premises and expel or remove Tenant and any other person who may be occupying said Leased Premises or any part thereof, by force if necessary, without being liable for prosecution or any claim of damages therefore.
B. Enter upon and take possession of the Leased Premises and expel or remove Tenant and any other person who may be occupying said Leased Premises or any part thereof, by force if necessary, without being liable for prosecution or any claim for damages therefore with or without having terminated the Lease.
C. Do whatever Tenant is obligated to do under the terms of this Lease (and enter upon the Leased Premises in connection therewith if necessary) without being liable for prosecution or any claim for damages therefore, and Tenant agrees to reimburse Owner on demand for any expenses which Owner may incur in thus effecting compliance with Tenant’s obligations under this Lease, plus interest thereon at the lesser of the highest rate permitted by law or eighteen percent (18%) per annum, and Tenant further agrees that Owner shall not be liable for any damages resulting to the Tenant from such action.
D. Alter all locks and other security devises at the Leased Premises without terminating this Lease.
E. Exclude Tenant from the Leased Premises by changing all door locks located thereon and thereafter Owner or its agent shall place a written notice on Tenant’s front door stating the name and address or telephone number of the individual from whom a new key may be obtained and that such key may only be obtained during the hours stated. Owner shall, however, have absolutely no obligation to furnish a new key unless and until Tenant (i) cures all existing defaults and (ii) delivers to Owner a sum of money determined by Owner in its sole discretion which shall be added to and become a part of the security deposit of Tenant hereunder. Owner and Tenant intend that this sub-paragraph (E) expressly supersedes any conflicting provisions contained in Section 93.002 of the Texas Property Code, or any successor statute.
15.02 Exercise by Owner of any one or more remedies hereunder granted or otherwise available shall not be deemed to be an acceptance of surrender of the Leased Premises by Tenant, whether by agreement or by operation of law, it being understood that such surrender can be effected only by the written agreement of Owner and Tenant. No such alteration of locks or other security devices and no removal or other exercise of dominion by Owner over the property of Tenant or others at the Leased Premises shall be deemed unauthorized or constitute a conversion, Tenant hereby consenting, after any event of default, to the aforesaid exercise of dominion over Tenant’s property within the Leased Premises. All claims for damages by reason of such re-entry and/or repossession and/or alteration of locks or other security devices are hereby waived, as are all claims for damages by reason of any distress warrant, forcible detainer proceedings, sequestration proceedings or other legal process. Tenant agrees that any re-entry by Owner may be pursuant to judgment obtained in forcible detainer proceedings or other legal proceedings or without the necessity for any legal proceedings, as Owner may elect, and Owner shall not be liable in trespass or otherwise.
15.03 In the event Owner elects to terminate the Lease by reason of an event of default, then notwithstanding such termination, Tenant shall be liable for and shall pay to Owner at the address specified for notice to Owner herein the sum of all rental and other amounts payable to Owner pursuant to the terms of this Lease which have accrued to date of such termination, plus, as damages, an amount equal to the total rental (Guaranteed Minimum and Percentage, computed as stated below) plus Tenant:
(a) Any failure by Tenant to pay when due any ’s Common Area Maintenance, Tax, and Insurance Payment hereunder for the remaining portion of the Rent lease term (had Such term not been terminated by Owner prior to the date of expiration stated in Article 1).
15.04 In the event that Owner elects to repossess the Leased Premises without terminating the Lease, then Tenant shall be liable for and shall pay to Owner at the address specified for notice to Owner herein all rental and other amounts payable to Owner pursuant to the terms of this Lease which have accrued to the date of such repossession, plus total rental (Guaranteed Minimum and Percentage, computed as stated below) plus Tenant’s Common Area Maintenance, Tax, and Insurance Payment required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that to Owner during the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation remainder of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at lease term until the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance expiration of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused as stated in Article 1, diminished by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals net sums thereafter received by Landlord therefrom shall be applied as follows:
Owner through reletting the Leased Premises during said period (a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and after deducting expenses incurred by Landlord Owner as provided in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunderSection 15.05 hereof). In no event shall Tenant be entitled to any excess of any rental received obtained by Landlord reletting over and above the rental herein reserved. Actions to collect amounts due by Tenant to Owner as provided in this Section 15.04 may be brought from time to time, on one or more occasions, without the necessity of Owner’s waiting until expiration of the lease term.
15.05 In case of any event of default, Tenant shall also be liable for and shall pay to Owner, in addition to any sum provided to be paid above, broker’s fees incurred by Owner in connection with reletting the whole or any part of the Leased Premises; the costs of removing and storing Tenant’s or other occupant’s property; the cost of repairing, altering, remodeling or otherwise putting the Leased Premises into condition acceptable to a new tenant or tenants, and all reasonable expenses incurred by Owner in enforcing or defending Owner’s rights and/or remedies including reasonable attorneys’ fees which shall be not less than fifteen percent (15%) of all sums then owing by Tenant to Owner.
15.06 Owner may, but need not, relet the Leased Premises or any part thereof for such rent and upon such terms as Owner, in its sole discretion, shall determine (including the right to relet the Leased Premises for a greater or lesser term than that remaining under this Lease, the right to relet the Leased Premises as a part of a larger area, and the right to change the character or use of the Leased Premises). If Owner elects to relet the Leased Premises, it shall only be required to use the same efforts it then uses to lease other space or properties which it owns or manages; provided however that Owner shall not be required to give any preference or priority to the showing or leasing of the Leased Premises over any other space that Owner may be leasing or have available and may place a suitable prospective tenant in any such available space regardless of when such alternative space becomes available; provided, further, the Owner shall not be required to observe any instruction given by Tenant about such reletting or accept any tenant offered by Tenant unless such offered tenant has a credit worthiness acceptable to Owner, leases the entire Leased Premises, agrees to use the Leased Premises in a manner consistent with the Lease and leases the Leased Promises at the same rent, for no more than the current term and on the same terms and conditions as in this Lease without any expenditure by Owner for tenant improvements or broker’s commissions. In any such case, Owner may, but shall not be required to, make repairs, alterations and additions in or to the Leased Premises and redecorate the same to the extent Owner deems necessary or desirable.
15.07 In the event Tenant is obligated comprised of more than one person and/or entities, all such persons and/or entities shall be jointly and severally liable for all of the obligations and liabilities of Tenant under this Lease.
15.08 Upon receipt from Tenant of the sum stated in Article 12 above, such sum shall be held by Owner without interest as security for the performance by Tenant of Tenant’s covenants and obligations under this Lease, it being expressly understood that such deposit is not an advance payment of rental or a measure of Owner’s damages in case of default by Tenant. If at any time during the term of this Lease any of the rental herein reserved shall be overdue and unpaid, or any other sum payable by Tenant to pay hereunder. Should that Owner hereunder shall be overdue and unpaid then Owner may at its option apply any portion of such rentals received from such reletting during any month, which is applied said deposit to the payment of rent hereunderany such overdue rental or other sum. In the event of the failure of Tenant to keep and perform any of the other terms, covenants and conditions of this Lease to be less than the rent payable hereunder during that month kept and performed by Tenant, then the Owner at its option may apply the security deposit, or so much thereof as may be necessary, to compensate the Owner for loss, cost or damage sustained, incurred or suffered by Owner due to such breach on the part of Tenant Should the security deposit, or any portion thereof be applied by Owner as herein provided, Tenant shall, upon written demand of Owner, remit to Owner a sufficient amount in cash to restore the security deposit to the original sum deposited, and Tenant’s failure to do so within five days after receipt of such demand shall constitute a default under this Lease. Any remaining balance of such deposit shall be returned by Owner to Tenant at such time after termination of this Lease and all of Tenant’s obligations under this Lease have been fulfilled.
15.09 In the event of any default by Owner, Tenant will give Owner written notice specifying such default with particularity, and Owner shall thereupon have thirty (30) days (or such longer period as may be required in the exercise of due diligence) in which to cure any such default. Unless and until Owner fails to so cure any default after such notice, Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthlynot have any remedy or cause of action by reason thereof. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession All obligations of the Premises by Landlord under this Article shall Owner hereunder will be construed as an election to terminate this Lease unless a written notice covenants, not conditions. The term “Owner” shall mean only the Owner, for the time being, of the Shopping Center, and in the event of the transfer by such Owner of its interest in the Shopping Center, such Owner shall thereupon be released and discharged from all covenants and obligations of the Owner thereafter accruing, but such covenants and obligations shall be binding during the lease term upon each new owner for the duration of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdictionownership. Notwithstanding any reletting without termination other provision hereof, in the event of any breach or default by Landlord because of Tenant's default, Landlord may at Owner in any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury term or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant provision of this Lease, Tenant agrees to look solely to the equity or interest then owned by Owner in the land and improvements which constitute the Shopping Center; however, in no event shall pay the reasonable fees any deficiency judgment or any money judgment of such attorney for his services regardless of the fact that no legal proceeding any kind be sought or action may have been filed or commencedobtained against Owner.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Shopping Center Lease Agreement (Third Coast Bancshares, Inc.)
Default and Remedies. 25.1 A. The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition will entitle Landlord to exercise any and or all other of its remedies available to Landlord at law or in equitydescribed herein.
B. Upon the occurrence of an Event of Default, Landlord shall may at any time thereafter, either with or without notice or demand, and without limiting Landlord in the exercise of any rights or remedies that Landlord may have by reason of the right to immediately terminate occurrence of the Event of Default:
(1) Terminate this Lease and all rights Tenant’s right to possession of the Premises and accelerate the Rent due under this Lease for the remainder of the Term, in which case Tenant hereunder by giving written notice must immediately surrender possession of the Premises to Tenant Landlord. Upon termination of its election this Lease and Tenant’s right to do so. If possession of the Premises, Landlord shall elect will be entitled to terminate this Lease, then it may recover from Tenant all damages incurred by Landlord by reason of Tenant:
’s default, including, without limitation, the cost of recovering possession of the Premises, reasonable attorneys’ fees, expenses of re-letting (a) The including necessary and reasonable renovation and alteration of the Premises and reasonable broker’s fees), and the worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the judicial award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent Rent for the balance of the term after the time of the award Term exceeds the amount of such rental loss which Rent lost for the same period that Tenant proves could be reasonably avoided; plus.
(d2) Any other amounts necessary Terminate Tenant’s right to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu possession of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or Premises without terminating this Lease, to in which case Landlord may re-enter the Premises and remove re-let all property or any part of the Premises for a term different from that which otherwise would have constituted the balance of the Term and persons therefromfor rent and on terms and conditions different from those contained in this Lease, whereupon Tenant will be obligated to pay Landlord as damages the difference between the Rent provided to be paid in this Lease and that provided to be paid in any lease covering a subsequent re-letting of the Premises, for the period that would have otherwise constituted the balance of the Term, together with all of Landlord’s reasonable costs and expenses for preparing the Premises for re-letting, including, without limitation, all necessary and reasonable repairs and tenant finish improvements, reasonable brokers’ and attorneys’ fees, and any such property all loss or damage that Landlord may be removed sustain by reason of its re-entry and stored in a public warehouse or elsewhere at re-letting. Landlord will use reasonable efforts to mitigate its damages by re-letting the cost and for the account of TenantPremises; provided, all in accordance with all Legal Requirements.
25.5 If however, that Landlord’s agreement to mitigate its damages will not require Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of let the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet on the Premises or any part or parts thereof for such term or same terms and upon such provisions conditions as Landlord, set forth in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for (3) Apply the purpose Security Deposit toward unpaid monetary obligations of collecting any rental due from Tenant or enforcing Tenant.
(4) Pursue any other covenant of this Lease, Tenant shall pay remedy now or hereafter available to Landlord under the reasonable fees of such attorney for his services regardless laws or judicial decisions of the fact that no legal proceeding or action may have been filed or commencedState of Colorado.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Default and Remedies. 25.1 The occurrence A. If the Closing does not occur due to Acquiror's default hereunder, or breach of any its representations, warranties, covenants or other terms of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
Agreement, and such default or breach is not cured or remedied within ten (a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (510) business days after Tenant's receipt of written notice thereof given by Contributor to Acquiror, or otherwise waived by Contributor, Contributor may terminate this Agreement and, as its sole remedy, receive the Xxxxxxx Money from the Escrowee, as liquidated damages, in which event this Agreement shall be deemed null and void and the parties shall be released from all further obligations and liabilities under this Agreement, except with respect to the indemnity set forth in Section 15B. It is recognized by Contributor and Acquiror that the same damages Contributor will sustain by reason of Acquiror's default, breach or failure will be substantial, but difficult, if not impossible, to ascertain. The Xxxxxxx Money has been determined by the parties as a reasonable sum for damages and is overdue;intended not as a penalty, but as full liquidated damages.
B. If, prior to the Closing, Contributor is in default with respect to, or breaches, or fails to perform one or more of its representations, covenants, warranties or other terms of this Agreement, and such default, breach or failure is not cured or remedied within ten (10) business days after receipt of written notice thereof given by Acquiror to Contributor, or otherwise waived by Acquiror, Acquiror as its sole remedy may (a) terminate this Agreement, or terminate this Agreement with respect to any one Property (other than Logo 7 Court) or the Additional Property to which such default relates, in which event the Xxxxxxx Money, or allocable portion thereof, shall be returned by the Escrowee to Acquiror and, upon such return, the parties shall be released from all further obligations and liabilities under this Agreement, or under this Agreement as it relates to such Property or the Additional Property, as the case may be, except with respect to the Surviving Indemnities, (b) A failure by Tenant to observe and perform any other provision of this Lease to be observed xxx for Specific Performance (as defined below) or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord proceed with the Closing and Tenant for other premises in the Center;
(d) The abandonment or vacation pursue its remedies pursuant to Section 14A. For purposes of this Agreement, "Specific Performance" shall mean delivery of the PremisesDeeds free and clear of all Liens of a definite or ascertainable amount other than the Permitted Indebtedness and the performance of all other obligations of Contributor other than obligations arising out of, or pertaining to, a breach or inaccuracy of any representation or warranty contained in Section 8A, other than subsection (xiv) of Section 8A, which was disclosed on the certificate delivered by Contributor to Acquiror pursuant to Section 6C(i)(l), provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time Contributor had no actual knowledge of the award of the unpaid rent payable hereunder which had been earned at such breach or inaccuracy on the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) this Agreement and (b) above, such inaccuracy or breach was not the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence result of an Event intentional act or omission of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal RequirementsContributor.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Contribution Agreement (American Real Estate Investment Corp)
Default and Remedies. 25.1 The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any An “Event of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default Default” shall be deemed to exist under this Lease so long as and Tenant is paying the shall be in default hereunder if: (i) Tenant fails to pay any Rent required when due and such failure continues for more than 3 business days after Landlord has given Tenant written notice of such failure (such notice being in lieu of, and not in addition to, any applicable statutory notice); provided, however, in no event shall Landlord have any obligation to be paid hereunder; and
(e) Any other event herein specified to give Tenant more than 1 such notice in any 12-month period, after which there shall be an Event of Default if Tenant fails to pay any Rent when due, regardless of Tenant’s receipt of notice of such nonpayment, and, provided further, there shall be an automatic Event of Default if Tenant fails to pay any Rent when due and an automatic stay of bankruptcy precludes issuance of a default notice; (ii) Tenant fails to bond over a mechanic’s or materialmen’s lien within 10 days after Xxxxxxxx’s demand; (iii) there is any assignment or subletting (regardless of whether the same might be void under this Lease.
25.2 In ) in violation of the event terms of this Lease; (iv) the occurrence of any Event default beyond any applicable notice and/or cure period under any guaranty executed in connection with this Lease; (v) Tenant fails to deliver any Landlord- requested estoppel certificate or subordination agreement within 5 business days after receipt of Default notice that such document was not received within the time period required under this Lease; (vi) Tenant ceases to use the Premises for the Permitted Use or removes substantially all of its furniture, equipment, and personal property from the Premises (other than in the case of a permitted subletting or assignment) or permits the same to be unoccupied for longer than a week; (vii) there is a filing of a voluntary petition for relief by Tenant or any guarantor of this Lease, or the filing of a petition against Tenant or any guarantor of this Lease in a proceeding under the federal bankruptcy or other insolvency laws that is not withdrawn or dismissed within 45 days thereafter, or Xxxxxx’s rejection of this Lease after such a filing, or, under the provisions of any law providing for reorganization or winding up of corporations, the assumption by any court of competent jurisdiction of jurisdiction, custody, or control of Tenant or any substantial part of its property, or of any guarantor of this Lease, where such jurisdiction, custody, or control remains in force, unrelinquished, unstayed, or unterminated for a period of 45 days, or the death or ceasing of existence of Tenant or any guarantor of this Lease, or the commencement of steps or proceedings toward the dissolution, winding up, or other termination of the existence of Tenant or any guarantor of this Lease, or toward the liquidation of either of their respective assets, or the evidence of the inability of Tenant or any guarantor of this Lease to pay its debts as aforesaidthey come due, including without limitation an admission in addition writing of its inability to pay its debts when due, or any and all judgment docketed against any guarantor of this Lease which is not paid, bonded, or otherwise discharged within 45 days; or (viii) Tenant fails to observe or perform any of Tenant’s other remedies available to Landlord at law agreements or in equity, Landlord shall have the right to immediately terminate obligations under this Lease and all rights of such failure continues for more than 30 days after Landlord gives Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant failure, or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because expiration of such defaultadditional time period as is reasonably necessary to cure such failure (not to exceed 60 days), provided Xxxxxx immediately commences and thereafter proceeds with all due diligence and in good faith to cure such failure.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Default and Remedies. 25.1 a. The occurrence of any of the following shall constitute an "EVENT OF DEFAULTEvent of Default" under this Lease by Tenant:
(a) Any failure by Tenant to pay i. The Rent or other sum due under this Lease is not paid when due (hereinafter referred to as a "Monetary Default");
ii. Tenant fails to fulfill or perform, or violates any other obligation or term of this Lease (hereinafter referred to as a "Nonmonetary Default").
b. Upon the Rent required to be paid by Tenant hereunder where occurrence of an Event of Default, if such failure continues Event of Default is not cured within ten (10) days for five a Monetary Default or thirty (530) business days for a Nonmonetary Default, after Tenant's receipt of written notice that of such Event of Default by Landlord to Tenant, Tenant shall be in default under this Lease and Landlord shall have the same is overdue;
(b) A failure by Tenant option to observe do and perform any one or more of the following in addition to, and not in limitation of, any other provision remedy or right permitted by law or in equity:
i. Landlord may take possession of the Premises without further notice, and without prejudicing Landlord's rights to damages.
ii. Landlord may elect to cure any default and the cost of such action shall be added to Tenant's financial obligations under this Agreement.
iii. Landlord may terminate this Lease prior to the normal ending thereof by lapse of time or otherwise and collect rent for the period prior to termination thereof.
iv. Landlord, as Tenant's agent, without terminating the Lease, may at Landlord's option enter upon and rent Premises or any part thereof at the best price obtainable by reasonable effort, without advertisement and by private negotiations and for any term Landlord deems proper. Tenant shall be liable to Landlord for the deficiency, if any, between Tenant's rent hereunder and the price obtained by Landlord on reletting.
v. Landlord shall have all other rights and remedies available at law or in equity.
c. Tenant shall pay all reasonable costs, damages, and expenses suffered by Landlord by reason of Tenant's defaults.
d. In the event that Landlord fails to perform or violates any obligation or term of this Lease and fails to be observed or performed by Tenant where such failure continues for cure said default within thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaidto Landlord, Landlord shall be in addition to any default under this Lease and Tenant shall have all other rights and remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Lease Agreement (Long Term Care Operations 360, Inc.)
Default and Remedies. 25.1 The occurrence of 8.1 Notwithstanding anything to the contrary contained in this Agreement, if Seller fails to perform any of its obligations or agreements contained herein prior to Closing in accordance with the following shall constitute an "EVENT OF DEFAULT" under terms of this Lease by Tenant:
(a) Any failure by Tenant Agreement and fails to pay when due any of the Rent required to be paid by Tenant hereunder where cure such failure continues for default within five (5) business days following written notice thereof from Purchaser, then, as Purchaser’s sole and exclusive remedy, Purchaser shall elect either: (i) to terminate this Agreement, in which event, the Title Company shall immediately return the Exxxxxx Money to Purchaser, and, Seller shall within 10 days after Tenant's receipt of written notice a reasonably detailed statement therefor from Purchaser, together with reasonable supporting documentation evidencing such costs and expenses, reimburse to Purchaser all third party out of pocket costs and expenses incurred by Purchaser in connection with the Transaction, up to a maximum of $30,000.00, including reasonable legal fees and due diligence expenses, and upon such termination and payment of such reimbursement, neither party shall have any further rights, liabilities or obligations under this Agreement (except for those that the same is overdue;
expressly survive termination), or (bii) A failure by Tenant to observe and perform any other provision enforce specific performance of this Lease to Agreement, provided that any suit for specific performance must be observed or performed by Tenant where such failure continues for brought within thirty (30) days after Seller’s default, failing which, Purchaser shall be deemed to have waived its right to specific performance to the maximum extent permitted by law. In the event specific performance is not available to Purchaser because Seller has sold, transferred, or otherwise conveyed the Property to a bona fide third party in breach of this Agreement, then, in the event of termination of this Agreement by Purchaser, in addition to the return of the Exxxxxx Money to Purchaser and payment of such reimbursement amount as aforesaid up to a maximum of $30,000.00, Seller shall, within five (5) business days thereafter, pay to Purchaser, as liquidated damages and not as a penalty, an amount equal to the amount of the Exxxxxx Money, the same being deemed Purchaser’s damages on account thereof, the exact amount of damages to be suffered by Purchaser on account of any such default being difficult if not impossible to ascertain and Purchaser and Seller agreeing that such amount is a reasonable approximation of the damages to be suffered by Purchaser on account thereof.
8.2 Notwithstanding anything to the contrary contained in this Agreement, if Purchaser fails to perform any of its obligations or agreements contained herein in accordance with the terms of this Agreement and fails to cure such default within five (5) business days following written notice thereof from Landlord; Seller (provided, however, that if no cure period shall extend into 2017 for Purchaser’s failure to close on the nature of Closing Date), then Seller, as Seller’s sole and exclusive remedy hereunder may terminate this Agreement and receive the Exxxxxx Money as liquidated damages, and upon such default is such termination, neither party shall have any further rights, liabilities or obligations under this Agreement (except for those that expressly survive termination). The parties acknowledge and agree that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be actual damages in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default a default by Tenant Purchaser are uncertain in amount and difficult to ascertain, and that the Exxxxxx Money, as aforesaida liquidated damages amount, is reasonable.
8.3 Notwithstanding anything to the contrary contained in this Agreement, in addition to any and all other remedies available to Landlord at law or in equity, Landlord no event shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could either party hereto be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefromliable for, and each party, on behalf of itself and its respective successors and assigns, hereby waives any such property may be removed and stored in a public warehouse claim against the other for, any consequential, special, indirect, or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided punitive damages arising under or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;this Agreement.
(c) 8.4 The provisions of this Section shall not limit Purchaser’s or Seller’s right to the payment of the cost of any alterations of pursue and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled recover on a claim with respect to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to obligations surviving the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such relettingClosing.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Phillips Edison Grocery Center REIT III, Inc.)
Default and Remedies. 25.1 The occurrence of Seller or Buyer shall be in default under this Contract if either fails to comply with any of material covenant, agreement or obligation within any time limits required by this Contract. Following a default by either Seller or Buyer under this Contract, the other party shall have the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenantremedies:
(a) Any failure If Seller defaults, Buyer may (i) specifically enforce this Contract; or (ii) terminate this Contract by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice to Seller. If Buyer elects to terminate this Contract, the Xxxxxxx Money shall be returned to Buyer upon written demand and neither party shall have any further rights or obligations hereunder, except those that the same is overdue;expressly survive termination.
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; providedIf Buyer defaults, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default Seller shall be deemed entitled to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder Contract by giving written notice to Tenant Buyer and retain the Xxxxxxx Money as liquidated damages as Seller’s sole and exclusive recourse and remedy, the parties recognizing that it would be extremely difficult to ascertain the extent of its election to do so. If Landlord shall elect to terminate this Leaseactual damages caused by Buyer’s breach, then it may recover from Tenant:
(a) The worth at and that the time of the award of the unpaid rent payable hereunder which had been earned at the date Xxxxxxx Money represents as fair an approximation of such actual damages as the parties can now determine, and following such termination; plus
, neither party shall have any further rights or obligations hereunder, except those that expressly survive termination. Notwithstanding the foregoing, Seller agrees that a failure of wire transferred funds to reach Seller’s designated account on the Closing Date shall not constitute a default by Buyer hereunder provided Buyer provides reasonable evidence that the wire transfer was initiated on or prior to the Closing Date and the funds are received no later than two (b2) The worth at Business Days thereafter. Notwithstanding any limitation of remedies above, if, as a result of a default under this Contract, either Seller or Buyer employs an attorney to enforce its rights in a legal proceeding, the time of non-prevailing party in such legal proceeding, if determinable, shall reimburse the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord prevailing party for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or whichreasonable attorneys’ fees, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all court costs and other legal expenses incurred by Landlord the prevailing party in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such relettingproceeding.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Real Estate Sale Contract (Government Properties Income Trust)
Default and Remedies. 25.1 The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" If Purchaser wrongfully fails or refuses to perform its obligations under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where Contract, and such failure continues for five or refusal is not cured within ten (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (3010) days after written notice thereof Notice from LandlordSeller, then a “Purchaser Default” will exist and Seller shall have the right, as its sole and exclusive remedy, to receive from Escrow Agent and retain the Deposit as full and complete liquidated damages for the default of Purchaser; provided, however, that if, and only if, a Purchaser Default occurs after Seller, Purchaser
1. If Seller wrongfully fails or refuses to convey the Property in accordance with the terms of this Contract or otherwise perform its obligations hereunder, of if the nature of Syratech wrongfully fails or refuses to perform its obligations under this Contract, and such default failure or refusal is such that the same cannot with due diligence be cured within said periodten (10) days after Notice from Purchaser, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord then Purchaser shall have the right right, as its exclusive remedies, either to immediately (i) terminate this Lease and all rights of Tenant hereunder Contract by giving written notice to Tenant Seller and receive a refund in full of its election to do so. If Landlord shall elect to terminate this Lease, then it may the Deposit and recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds Seller the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at reasonable out-of-pocket expenses actually incurred by Purchaser and payable to third parties unrelated to Purchaser in connection with the time purchase of the award Property contemplated by this Contract, up to an absolute maximum of $50,000.00 or (ii) seek and obtain in an appropriate court specific performance by Seller and Syratech, as applicable, of their respective obligations under this Contract, provided that any such action seeking specific performance shall be filed within ninety (90) days after occurrence of the amount alleged default. In any action by which Seller or Purchaser against the unpaid rent for other, or in any action by Purchaser against Syratech, alleging a wrongful failure or refusal to perform obligations under this Contract, the balance of prevailing party in such action shall be entitled to recover from the term other reasonable attorneys’ fees actually incurred and court costs and other out-of-pocket expenses actually incurred.
14.1 If a Purchaser Default occurs after the time of the award exceeds Seller, Purchaser and Syratech have timely and properly delivered into Escrow all documents required by Paragraphs 8.1, 8.2 and 8.3, the amount of such rental loss which Tenant proves could the Deposit will be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or whichdeemed, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant establishing the amount of this Lease, Tenant shall pay the reasonable fees liquidated damages which Seller is entitled to receive by virtue of such attorney for his services regardless Purchaser Default, to have been increased to an aggregate amount of $5,000,000.00. Accordingly, Purchaser hereby agrees that, if a Purchaser Default occurs, after Seller, Purchaser and Syratech have timely and properly delivered into Escrow all documents required by Paragraphs 8.1, 8.2 and 8.3, Purchaser will be obligated to pay to Seller, concurrently with delivery by Escrow Agent to Seller of the fact that no legal proceeding cash portion of the Deposit held by Escrow Agent, as liquidated damages for the Purchaser Default, an amount of money equal to the difference between the amount of the Deposit and $5,000,000.00. If Industrial Developments International, Inc. (“IDI”), as Purchaser, assigns its rights under this Contract to the Permitted Transferee (as defined in Paragraph 21, the Permitted Transferee will not assume or action be liable for the obligations of IDI under this Paragraph 14.1 and IDI alone will remain liable for payment of the additional amount of money which may have been filed or commencedbecome payable to Seller pursuant to this Paragraph 14.1.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Default and Remedies. 25.1 The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant If, following the Funding Date, and so long as there shall remain outstanding any Indebtedness hereunder, an Event of Default occurs and is continuing, the Lender shall have all of the remedies of a secured party under the Uniform Commercial Code, including, without limitation, the right, to notify Xxxxxx Xxxxx to pay when due directly to the Lender any amount payable to either Borrower in respect of the Rent required Pledged Interests. In addition to and not in derogation of any or all of the rights and remedies granted hereunder to the Lender or otherwise available to the Lender under applicable law, following the Funding Date and such an Event of Default, so long as there shall remain any outstanding Indebtedness hereunder, the Lender shall have the further right and power, at its sole option, to sell, or otherwise dispose of, the Collateral (other than Collateral consisting of cash), or any part thereof, at any one or more public or private sales as permitted by applicable law, and for that purpose the Lender may take immediate and exclusive possession of such Collateral, or any part thereof, to the extent capable of possession.
(b) To the fullest extent permitted by law, each Borrower irrevocably and expressly waives any right to receive any notice of sale or notice of any other disposition of all or any part of the Collateral that does not consist of cash, except that to the extent a Borrower may be paid entitled by Tenant hereunder where applicable law to any notice of sale or other disposition of such failure continues for Collateral, each Borrower agrees that if such notice is mailed, postage prepaid, to a Borrower at such Borrower's address hereinafter specified not less than five (5) business days after Tenant's receipt before the time of written the sale or other disposition contemplated therein, such notice that the same is overdue;
(b) A failure by Tenant to observe shall conclusively be deemed commercially reasonable and perform shall fully satisfy any other provision requirement for giving of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant notice. The Lender shall not be deemed obligated to make any sale of Collateral regardless of notice of sale having been given. The Lender may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be in default if made at the time and place which it shall within said period commence such during and thereafter diligently prosecutes the same to completion;was so adjourned.
(c) Any default The proceeds realized upon any such disposition, after deduction for the expenses of retaking, holding, preparing for sale, selling or the like and reasonable attorneys' fees, legal expenses and costs incurred by Tenant under any other lease between Landlord and Tenant for other premises the Lender, shall be applied in the Center;accordance with Section 7.06.
(d) The abandonment or vacation remedies of the PremisesLender hereunder are cumulative and the exercise of any one or more of the remedies provided herein, provided that if Tenant has vacated or under the Premises and is actively seeking Uniform Commercial Code, shall not be construed as a subtenant waiver of any other rights or assignee, no default shall be deemed to exist under this Lease remedies of the Lender so long as Tenant is paying any part of the Rent required to be paid hereunder; and
(e) Any indebtedness evidenced by the Note remains unsatisfied or unperformed. The making of this Agreement shall not waive or impair any other event herein specified to be an Event security the Lender may have or hereafter acquire for the payment or performance of Default under this Lease.
25.2 In the event indebtedness evidenced by the Note, nor shall the making of any Event of Default by Tenant as aforesaid, in addition such additional security waive or impair this Agreement; but the Lender may resort to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then security it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as order it may be permitted by applicable California law from time to timedeemed proper.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Supplemental Loan Agreement (NRG Generating U S Inc)
Default and Remedies. 25.1 The occurrence of any one or more of the following events shall constitute an a default ("EVENT OF DEFAULT" under Default") of this Lease Agreement by Tenant:
Seller: (ai) Any failure by Tenant of Seller to pay repurchase any Purchased Account when due any required pursuant to Paragraph 7 hereof; (ii) the failure of the Rent required Seller to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision covenant or agreement contained herein; (iii) any warranty or representation of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default Seller made herein shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunderuntrue; and
(eiv) Any other event herein specified to dissolution or termination of existence of Seller; (v) death of any Seller if Seller shall be an Event individual; (vi) Seller shall file or have filed against it a petition in bankruptcy or for reorganization or adjustment of Default under this Lease.
25.2 its debts or if Seller shall make an assignment for the benefit of creditors; (vii) a tax lien shall be filed against Seller; (viii) a judgment shall be entered against Seller which is not promptly satisfied or if a levy attachment shall be filed against Seller or its property; and/or (ix) if Purchaser shall PLEASE INITIAL HERE _______ Factoring Agreement. page 4 of 5. deem itself insecure for any reason whatsoever. In the event of any Event of a Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall occur: i) Purchaser shall have the right to require Seller to immediately terminate this Lease repurchase all of the Purchased Accounts for an amount equal to the sum of the aggregate unpaid balances of all the Purchased Accounts then owned by Purchaser plus all Charges and other amounts due Purchaser hereunder; ii) Seller shall pay to Purchaser all other damages costs and losses caused to it by reason of such Default, including, but not limited to reasonable attorneys' fees, court costs, other collection expenses and all rights other expenses and costs incurred or paid by Purchaser to obtain performance or to enforce any covenant or agreement of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(aSeller hereunder; and iii) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and Purchaser shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) enforce all rights which it may have with respect to the security interest granted to it pursuant to this Factoring Agreement and specifically, but not by way of limitation, to notify all Account Debtors of Seller's Accounts to make all payments directly to Purchaser, to notify and require the U.S. Post Office to deliver Seller's mail to Purchaser, and to open Seller's mail and take and endorse for deposit in the name of Seller all payments received upon any of Seller's Accounts and to deposit same for benefit of Purchaser. In addition to the Charges provided for elsewhere herein, Seller shall pay Purchaser a late payment charge equal to eighteen per cent ( 18%) per annum of any indebtedness of Tenant to Landlord other than rent amounts not paid when due hereunder from Tenant;
(b) to the date of payment of all costs and expenses incurred thereof. To the extent permitted by Landlord in connection with such reletting;
(c) to the payment of the cost law, Seller hereby irrevocably authorizes any attorney of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's defaultrecord to appear for Seller in such court, Landlord may in term time or vacation, at any time after a default hereunder and confess judgment against Seller, without process in favor of Purchaser, its successors or assigns, for such reletting elect amount as may appear due, owing and unpaid hereunder, together with costs of collection including reasonable attorney's fees, and to terminate this Lease because of waive and release all errors which may intervene in any such defaultproceedings, and consent to immediate execution upon such judgment, hereby ratifying and confirming all that said attorney may do by virtue hereof.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Factoring Agreement (Dynagen Inc)
Default and Remedies. 25.1 The occurrence of any A. Each of the following shall constitute be deemed an event of default by Debtor (each, an "EVENT OF DEFAULT" under this Lease by Tenant:Event of Default"):
(a1) Any failure by Tenant to pay when due If any representation or warranty of Debtor or Lessee set forth in any of the Rent required to be Loan Documents is false in any material respect, or if Debtor or Lessee renders any false statement or account.
(2) If any principal, interest or other monetary sum due under the Notes, the Mortgages or any other Loan Document is not paid by Tenant hereunder where such failure continues for within five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlorddate when due; provided, that if however, notwithstanding the nature occurrence of such default is such that the same cannot with due diligence be cured within said periodan Event of Default, Tenant FFCA shall not be deemed entitled to be in default if it exercise its rights and remedies set forth below unless and until FFCA shall within said have given Debtor notice thereof and a period commence of five days from the delivery of such during and thereafter diligently prosecutes the same to completion;notice shall have elapsed without such Event of Default being cured.
(c3) Any default by Tenant under If Debtor fails to observe or perform any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premisesother covenants (except with respect to a breach of the Fixed Charge Coverage Ratio, provided that which breach is addressed in subitem (6) below), conditions, or obligations of this Agreement; provided, however, if Tenant has vacated any such failure does not involve the Premises payment of any monetary sum, is not willful or intentional, does not place any rights or interest in collateral of FFCA in immediate jeopardy, and is actively seeking within the reasonable power of Debtor to promptly cure after receipt of notice thereof, all as determined by FFCA in its reasonable discretion, then such failure shall not constitute an Event of Default hereunder, unless otherwise expressly provided herein, unless and until FFCA shall have given Debtor notice thereof and a subtenant period of 30 days shall have elapsed, during which period Debtor may correct or assigneecure such failure, no default upon failure of which an Event of Default shall be deemed to exist have occurred hereunder without further notice or demand of any kind being required. If such failure cannot reasonably be cured within such 30-day period, as determined by FFCA in its reasonable discretion, and Debtor is diligently pursuing a cure of such failure, then Debtor shall have a reasonable period to cure such failure beyond such 30-day period, which shall not exceed 90 days after receiving notice of the failure from FFCA. If Debtor shall fail to correct or cure such failure within such 90-day period, an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind being required.
(4) If Debtor or Lessee becomes insolvent within the meaning of the Code, files or notifies FFCA that it intends to file a petition under this the Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, an "Action"), becomes the subject of either a petition under the Code or an Action, or is not generally paying its debts as the same become due.
(5) If there is an "Event of Default" under any other Loan Document, the Lease so long or a breach or default, after the passage of all applicable notice and cure or grace periods, under any of the Other Agreements.
(6) If there is a breach of the Fixed Charge Coverage Ratio requirement and FFCA shall have given Debtor notice thereof and Debtor shall have failed within a period of 30 days from the delivery of such notice to either (i) pay to FFCA the FCCR Amount (without premium or penalty) with respect to such of the Premises (starting with the Premises with the lowest Fixed Charge Coverage Ratio and proceeding in ascending order to the Premises with the next lowest Fixed Charge Coverage Ratio) as Tenant is paying necessary to cure the Rent required breach of the Fixed Charge Coverage Ratio requirement and for which the then Fixed Charge Coverage Ratio (with the definitions in Section 7.B being deemed to be paid hereunder; and
modified as applicable to provide for the calculation of the Fixed Charge Coverage Ratio for each such Premises on an individual basis rather than on an aggregate basis with the other Premises) is below 1.50:1 (eeach, a "Subject Premises"), (ii) Any other event herein specified prepay the Note or Notes corresponding to the Subject Premises in whole but not in part (without premium or penalty), or (iii) notify FFCA of Debtor's election to substitute a Substitute Premises for each Subject Premises in accordance with the terms of Section 13 (the failure of Debtor to complete such substitution within 60 days after FFCA shall have given the notice discussed above shall be deemed to be an Event of Default under this Lease.
25.2 In the event without further notice or demand of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do sokind being required). If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time For purposes of the award preceding sentence, "FCCR Amount" means that sum of money which, when subtracted from the outstanding principal amount of the unpaid rent payable hereunder which had been earned at Note corresponding to a Subject Premises, and assuming the date resulting principal balance is reamortized in equal monthly payments over the remaining term of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest Note at the rate of twelve (12%) percent per annum (interest set forth therein, will result in an adjusted aggregate Fixed Charge Coverage Ratio for all of the "INTEREST RATE")Premises of at least 1.50:1 based on the prior year's operations. As used Promptly after Debtor's payment of the FCCR Amount, Debtor and FFCA shall execute an amendment to each such Note in subparagraph (c) above, form and substance reasonably acceptable to FFCA reducing the "worth principal amount payable to FFCA under such Note and reamortizing the principal amount of such Note in equal monthly payments over the then remaining term of such Note at the time rate of interest set forth therein. Notwithstanding the foregoing, to the extent that, in accordance with the provisions of Section 7.B, FFCA shall have imposed an aggregate Fixed Charge Coverage Ratio requirement with respect to all of the award" is computed by discounting such amount at Premises corresponding to the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of Loans in any Securitized Loan Pool, then, in order to prevent an Event of Default from occurring by Tenantreason of a breach of such aggregate Fixed Charge Coverage Ratio requirement, Landlord shall also have Debtor must either (i) pay to FFCA the right, Modified FCCR Amount (without premium or penalty) within the aforesaid 30 day period with or without terminating this Lease, respect to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant corresponding to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Loans in such Securitized Loan Pool (starting with the Premises or any part or parts thereof for such term or terms with the lowest Fixed Charge Coverage Ratio and upon such provisions as Landlord, proceeding in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) ascending order to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to Premises with the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.next
Appears in 1 contract
Default and Remedies. 25.1 The occurrence of any of the following shall constitute be an "EVENT OF DEFAULT" under this Lease by Tenant:
event of default: (a) Any Sublessee’s failure by Tenant to pay any rent or any other amount payable by Sublessee as and when due any and Sublessee’s continued failure to cure such nonpayment for fifteen (15) days following written notification by Sublessor of the Rent such nonpayment; provided, however, Sublessor shall not be required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of provide written notice that the same is overdue;
of monetary defaults more than twice in any 12‐ month period, and accordingly an event of default shall occur upon Sublessee’s second failure to pay any rent or any other amount payable by Sublessee as and when due within any 12‐month period; (b) A Sublessee’s failure by Tenant to observe and perform any other provision obligation of this Lease to be observed or performed by Tenant where Sublease if such failure continues for is not cured within thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is has been given to Sublessee by Sublessor; or (c) Sublessee’s continued breach of any term or condition of the Lease after Sublessee has been notified by Sublessor of said term or condition. Upon default, Sublessor shall have any or all of the following remedies, in addition to all other rights and remedies allowed to Lessor under the Lease and all rights and remedies now or hereafter available at law or equity: (i) Sublessor may terminate this Sublease by written notice to Sublessee unless any such that default has been cured prior to such termination notice becoming effective. Any such termination by Sublessor shall not release Sublessee from the same canobligations contained herein, including the obligation to pay rent; or (ii) Sublessor shall be entitled to recover damages from Sublessee, including, but not limited to the balance of rent due under this Sublease for the remainder of the term of this Sublease, and if Sublessor relets the Subleased Property, the reasonable cost of re‐ letting the Subleased Property, including but not limited to the cost of the cleanup and removal of Sublessee’s property and equipment, and any other resulting expenses, together with due diligence any loss of rent suffered by Sublessor over the balance of the term of this Sublease following the default. These remedies, in addition to any other remedy available to Sublessor under applicable law, shall be cured within said period, Tenant cumulative. Pursuit by Sublessor of any remedy shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as constitute an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such defaultremedies.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Moorage Sublease Agreement
Default and Remedies. 25.1 The occurrence (a) In the event the business being conducted in the Leased Premises shall at any time be subsequently terminated, or in the event that Tenant shall be in default in the payment of any installment of rent herein, reserved after Landlord has given Tenant Five (5) days prior written notice of such non-payment, or in the event Tenant shall be in default in the performance of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by terms, covenants, conditions or provisions herein contained binding upon Tenant to pay when due any of the Rent required to be paid by after Landlord has given Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of prior written notice that of such non-performance, or in the same event Tenant shall be adjudicated a bankrupt or shall become insolvent or shall make a general assignment for the benefit of its creditors, or in the event a receiver shall be appointed for Tenant or a substantial part o£ its property and such receiver is overdue;
not removed within five (b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (305) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equityappointment, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted all other rights and remedies provided by applicable California law from time law) to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating terminate this Lease, to re-enter and take possess ion of the Premises and remove all property and persons therefromLeased Premises, peaceable or by force, and to remove any such property may be removed and stored in a public warehouse or elsewhere at the cost and therein, without liability for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by lawdamage to, and if Landlord has not elected without obligation to terminate this Leasestore, such property. In event of .such termination, Landlord may continue this Lease and may either recover all rental as it becomes due or (but shall be under no obligation to) relet the Premises Leased Premises, or any part thereof, from time to time, in the name of Landlord or parts thereof Tenant, without further notice, for such term or terms terms, on such conditions and upon for such provisions uses and purposes as Landlord, in its sole judgmentuncontrolled discretion may determine, and Landlord may deem advisable collect and shall have receive all rents derived there from and apply the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaidsame, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment after deduction of all costs and expenses incurred by Landlord in connection with such reletting;
(c) appropriate expenses, to the payment of the cost of rent payable hereunder, Tenant remaining liable for any alterations of and repairs deficiency. Landlord shal1 not be responsible or liable for any failure to so relet the Premises; andLeased Premises or any part thereof, or for any failure to collect any rent connected therewith.
(db) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated further agrees to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, all attorneys fees and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all court costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because on account of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such defaultdefault hereunder.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Lease Agreement (Dollar Tree Inc)
Default and Remedies. 25.1 The occurrence of any of the following events shall constitute an "EVENT OF DEFAULT" under a default or breach of this Lease by Tenant:
(a) Any failure by : If Tenant shall fail to pay when due perform or comply with any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision material conditions of this Lease to be observed or performed by Tenant where such failure continues for within thirty (30) days after written notice thereof from Landlordby Landlord to Tenant specifying the condition to be performed or complied with; providedor, that if the nature of such default is such that the same performance cannot with due diligence be cured reasonably had within said the thirty (30) day period, Tenant shall not be deemed in good faith have commenced performance within the thirty (30) day period and shall not diligently proceed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation completion of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 performance. In the event of any Event of Default default by Tenant hereunder, Landlord at any time thereafter, may re-enter the Premises and expel, remove, and put out Tenant or any person or persons occupying the Premises and may remove all personal property therefrom. Upon re-entry Landlord may, at its option, relet the Premises or any part thereof as aforesaidthe agent of Tenant, in addition and Tenant shall pay Landlord the difference between the rent hereby reserved for the portion of the term remaining at the time of re-entry and the amount received under such reletting for such portion of the term. All actions taken by Landlord pursuant to this Section shall be without prejudice to any and all other remedies available that otherwise might be used for the collection of arrears of rent or for the preceding breach of covenant or conditions. If Tenant has failed to cure any default hereunder within the applicable periods of grace and/or notice and cure set forth above, Landlord at law may elect, but shall not be obligated, to comply with any condition, agreement, or in equityterm required hereby to be performed by Tenant, and Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting correcting or remedying any rental due from such default and to remain until the default has been corrected or remedied, but any expenditure for such correction by Landlord shall not be deemed to waive or release the default of Tenant or enforcing the right of Landlord to take any other covenant action as may be otherwise permissible hereunder in the case of this Leaseany default. In the event any termination by Landlord takes place hereunder, Tenant shall pay the reasonable fees of such attorney for his services regardless rights and obligations of the fact that no legal proceeding or action may have been filed or commencedparties under Section 22 hereof shall survive any such termination until October 31, 2003.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Lease Agreement (Nelson Thomas Inc)
Default and Remedies. 25.1 The occurrence of If the Tenant fails to make payments, when due, in any of the following shall constitute an "EVENT OF DEFAULT" under amount required by this Lease or if Tenant fails to perform as required by Tenant:
(a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said periodLease, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 default. In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equitysuch default, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings and have Tenant and Tenant’s property removed. In the event of such default or pursuant to any notice provided by laweviction, all remaining rent shall become immediately due and if Landlord has not elected to terminate this Leasepayable without further notice. In the event of such default or eviction, Landlord may continue this Lease re-let the Premises upon terms and conditions as deemed appropriate by Landlord and such re-letting shall in no way affect the liability of Tenant. Any amounts obtained by Landlord via such re-letting shall be first applied toward the expenses associated with the re-letting of the Premises with the remainder, if any, to be applied toward Tenant’s obligations hereunder. Tenant agrees that Landlord is not limited to the remedies referenced above and may either recover all rental seek any other remedy against Tenant as it becomes due or relet the Premises or allowed under applicable law. Tenant agrees to be responsible and pay for any part or parts thereof for legal expense, attorney fees, discovery fees, court costs and other such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs fees and expenses incurred by Landlord in connection with such reletting;
Landlord’s effort to enforce the terms and conditions of this Lease. As noted above, all remedies available to Landlord pursuant to this Section (cand/or in Section 2 above and/or elsewhere in this Lease) shall be cumulative (and not exclusive) of all relief otherwise available to the payment Landlord pursuant to this Lease, at law, and/or in equity. No exercise or enforcement of the cost of any alterations of and repairs to the Premises; and
Landlord’s rights in this Section (dand/or in Section 2 above and/or elsewhere in this Lease) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing exhaust any other covenant right or remedy of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding Landlord hereunder or action may have been filed at law or commencedin equity.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Lease Agreement
Default and Remedies. 25.1 The occurrence of any one or more of the following events shall constitute an "EVENT OF DEFAULT" under a material default and breach of this Lease by Tenant:
(a) Any The failure by Tenant to pay when due make any payment of the Rent rent or any other payment required to be paid made by Tenant hereunder where such failure continues for five as and when due and after ten (510) business days after Tenant's receipt of written notice that the same is overdue;to Tenant by Landlord to pay same.
(b) A The occurrence of an event described in Paragraphs "Bankruptcy and Insolvency" and "Receivership", hereof (c) The failure by Tenant to observe and or perform any other provision of the covenants, conditions or provisions of this Lease to be observed or performed by Tenant Tenant, other than described in subparagraph (b) and (c) above, where such failure continues shall continue for a period of thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed Landlord to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the PremisesTenant, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assigneesuch failure cannot be cured within such thirty (30) day time period, no then it shall not be an event of default shall be deemed to exist under this Lease so long as Tenant is paying diligently pursuing the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event cure of Default under this Lease.
25.2 such matter. In the event of any Event of Default such material default or breach by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equityTenant, Landlord shall may at any time thereafter, with or without notice or demand and without limiting Landlord in the exercise of any right or remedy which Landlord may have the right to immediately terminate this Lease and all rights by reason of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenantsuch default or breach:
(a) The Terminate Tenant's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Tenant shall immediately surrender possession of the Premises to Landlord. In such event, Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant's default, including, but not limited to expenses of reletting, reasonable attorney's fees, and any real estate commission actually paid; the worth at the time of the award by a court having jurisdiction of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned eared after termination and until the time of the such award exceeds the amount of such rental loss which that the Tenant proves could have been reasonably avoided; plus
(c) The the worth at the time of the such award of the amount by which the unpaid rent for the balance of the term after the time of the such award exceeds the amount of such rental loss which that the Tenant proves could be reasonably avoided; plus
and the portion of any real estate commission payable by Landlord applicable to the unexpired term of this Lease. Unpaid installments of rent or other sums shall bear interest from the date due at the rate of ten percent (d10%) Any other amounts necessary to compensate per annum. In the event Tenant shall have abandoned the Premises, Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in shall have the ordinary course option of affairs, would likely result therefrom; and
(ei) At Landlord's election, such other amounts in addition to or in lieu retaking possession of the foregoing as may be permitted by applicable California law Premises and recovering from time to time.
25.3 As used Tenant the amount specified in subparagraphs this subparagraph (a), or (ii) and proceeding against subparagraph (b) above). For purposes of subparagraph (a), the term "worth at the time of the such award" is computed by allowing interest at shall have the rate of twelve (12%meaning provided in Section 1951.2(b) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate California Civil Code.
(b) As provided in Section 1951.4 of the Federal Reserve Bank of San Francisco at California Civil Code, maintain Tenant's right to possession, in which case this Lease shall continue in effect whether or not Tenant shall have abandoned the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by TenantPremises. In such event, Landlord shall also have the right, with or without terminating be entitled to enforce all of Landlord's rights and remedies under this Lease, including the right to re-enter recover the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental rent as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premiseshereunder.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) Pursue any other remedy now or hereafter available to Landlord under the payment laws or judicial decisions of the cost State of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.California
Appears in 1 contract
Samples: Lease (Coast Bancorp)
Default and Remedies. 25.1 The occurrence 7.1 If an event of default has occurred and is continuing with respect to any LCCCA Bond Documents, then notwithstanding any agreement, expressed or implied, between or among the Bank, the Trustee, the County and the LCCCA to waive, modify or suspend enforcement of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any rights of the Rent required Bank or obligations of the LCCCA, the LCCCA shall immediately notify the Trustee and the parties hereto that a default has occurred and for the purpose of instructing the Trustee to direct the County Treasurer to remit 100% of the HRRT into the Convention Center Authority Trust Fund which will be paid used by Tenant hereunder where such failure continues the LCCCA to meet its obligations under the LCCCA Bond Documents.
7.2 An “Event of Default”, for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision purposes of this Lease Agreement, shall occur by any party hereunder if that party fails to be observed comply with any provision or performed by Tenant where such failure continues for thirty requirement contained or referenced in this Agreement or the Recognition Agreements (30) days after written notice thereof from Landlordas amended); provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed occur hereunder unless written notice shall have been given to exist under all parties to this Lease Agreement and ten (10) days shall have elapsed after receipt of such notice without the cure thereof, provided, however, that if such default is not reasonably capable of being cured within such ten (10) day period and if the defaulting party shall have commenced to cure same, no default shall occur so long as Tenant is paying such defaulting party continuously and diligently pursues the Rent required cure thereof to be paid hereunder; andcompletion, but in no event to exceed sixty (60) days.
(e) Any other event herein specified to be 7.3 Upon the occurrence and continuation of an Event of Default under this Lease.
25.2 In Agreement, any or all of the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord non-defaulting parties shall have the right to immediately terminate bring an action for specific performance of this Lease and Agreement, all parties hereto agreeing that monetary damages are not sufficient to make the other parties whole for a default under this Agreement.
7.4 The parties hereto waive all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Leaseclaim or assert consequential, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination special and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord punitive damages in connection with such reletting;this Agreement.
(c7.5 In any proceeding arising under this Agreement, the prevailing party(ies) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion recover the costs of such rentals received from such reletting during any monththe proceeding, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon well as ascertained and upon demand, all costs reasonable attorneys’ fees and expenses incurred by Landlord before and at trial, on appeal, in connection with such reletting bankruptcy and in making any post judgment collection, as such alterations and repairs which are not covered post judgment costs may be awarded by the rentals received from such relettingcourt.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Collaboration Agreement
Default and Remedies. 25.1 16.01. The Tenant will be in default under this Lease upon the occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by events or conditions as to the Tenant or any guarantor of the Tenant:
's obligations hereunder: (ai) Any the Tenant's failure by Tenant to pay when due any of rent or make the Rent required to be paid by Tenant hereunder where other payments at the times and in the manner provided for herein, such failure continues having continued for five a period of 5 days (5) business days after Tenant's receipt of written no notice that the same is overdue;of
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 16.02. In the event of default, it will be lawful for the Landlord thereupon, or at any Event time thereafter, at the Landlord's option, and with or without process of Default law, to terminate this Lease and to enter upon t he Leased Premises and to expel the Tenant and those claiming under the Tenant, without being guilty of any manner of trespass, and thenceforth peacefully and quietly hold and enjoy the Leased Premises as if this Lease had not been made; without prejudice, however, to any right to sue xxx and recover any rent and other sums then due under this Lease, or to any claim for damages or right of action or remedy for preceding breach of any covenant, agreement or condition herein contained which the Landlord might otherwise have or use.
16.03. In case of entry and termination of the Lease as hereinabove provided, the Tenant will pay to the Landlord as damages for the Tenant's breach of the lease the amount by which the rent provided for the remainder of the term exceeds the fair rental value of the Leased Premises for the remainder of the term.
16.04. Or, in the event of default, alternatively, at the Landlord's option, the Landlord may enter upon the Leased Premises as the agent of the Tenant, and if the Landlord desires, expel the Tenant and those claiming under the Tenant, without being guilty of any manner of trespass, and may rent the Leased Premises as aforesaidsuch agent, applying the net proceeds of such rentals on account of the rent and other sums due from the Tenant, holding the Tenant liable for any deficiency, and accounting to the Tenant for any surplus.
16.05. In the event of default, this Lease will not, except at the option of the Landlord, continue for the benefit of any attaching creditor, assignee for the benefit of creditors, permanent receiver, or trustee in bankruptcy.
16.06. In the event of default, in addition to any other sums due to the Landlord hereunder, the Tenant will pay the Landlord's reasonable attorneys' fees and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable enforcing its rights hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Lease Agreement (Cytation Com Inc)
Default and Remedies. 25.1 15.01 The occurrence of any one of the following shall constitute an "EVENT OF DEFAULT" a default by Tenant under this Lease by Tenant:
Agreement: (a) Any failure by Tenant shall fail to pay when due and Landlord has not received any of the Rent required to be paid or any other sum payable by Tenant hereunder where when due, and such failure continues for five is not cured within three (53) business days after Tenant's receipt of Tenant receives written notice thereof from Landlord (provided, however, that the same notice requirement contained in this subsection (a) is overdue;
not in addition to any legal requirement that notice be given and may be satisfied by sending the notice required by any applicable law or statute including, but not limited to, Section 1161 of the California Code of Civil Procedure); or (b) A failure by Tenant shall fail to observe and perform or comply with any of the other provision covenants or conditions of this Lease to be observed or performed by Tenant where Agreement, and such failure continues for is not cured within thirty (30) days after Tenant receives written notice thereof from Landlord; provided, however, that if the nature of such default is such that the same failure to perform or comply cannot with due diligence reasonably be cured within said periodthirty (30) days, Tenant shall not be deemed to be in default if it shall Tenant commences to cure the failure to perform or comply within said the thirty (30) day period commence such during and thereafter diligently prosecutes and in good faith continues to cure the same thereafter. Notices given by Landlord to completion;
(c) Any default by Tenant under this section shall specify the provision(s) of this Lease Agreement with which Tenant is not in compliance, and shall demand that Tenant pay the Rent or perform or comply with any other lease between Landlord and Tenant for other premises in provision of this Lease Agreement, as the Center;
(d) The abandonment or vacation case may be, within the applicable period of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default time. No such notice shall be deemed to exist forfeiture or a termination of this Lease Agreement unless it specifically provides therefore.
15.02 If Tenant commits a default under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaidAgreement, Landlord shall have, in addition to any and all other rights and remedies which Landlord may have under this Lease Agreement, all rights and remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) 15.03 The worth at the time various rights, options, elections, powers and remedies of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right not be deemed to recover damages by reason of Landlord's efforts be exclusive; they are cumulative and in addition to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's rightany other remedies, as rights or priorities contained elsewhere in this Lease elsewhere provided, to indemnification against liability for injury Agreement or damage to persons now or property occurring prior to a termination of this Leaselater allowed by law or in equity.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Office Lease Agreement
Default and Remedies. 25.1 The occurrence Should (i) a Default occur under the Power Purchase Agreement, as provided and defined therein; (ii) Trustor fail to pay any amount when due under this Deed of Trust or other amounts due under any Ground Lease, BLM Grant, Appurtenance Instrument, any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same Transmission and Common Facility Agreements, or other Intangible Rights and Interests, which is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for not cured within thirty (30) days after receiving written notice thereof from LandlordBeneficiary or such shorter cure period that may be provided under any such Ground Lease, BLM Grant, Appurtenance Instrument, or any of the Transmission and Common Facility Agreements; providedor (iii) Trustor fail to perform any of its other material duties or obligations under this Deed of Trust, which failure is not cured within sixty (60) days after receipt of written of such failure from Beneficiary (provided that if (A) such breach cannot be cured within such period, (B) such breach is susceptible of cure within an additional thirty (30) days, (C) Trustor is proceeding with diligence and in good faith to cure such breach, and (D) the existence of such breach has not resulted in, and would not after considering the nature of the cure be reasonably expected to give rise to, a termination by the counterparty to any Ground Lease, BLM Grant, Appurtenance Instrument, or Transmission and Common Facility Agreement, or other Intangible Rights and Interests which is subject to breach, or to otherwise have a material adverse effect on the Subject Property or the validity or priority of Beneficiary’s security interests and lien on the Subject Property, then such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said cure period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
extended an additional thirty (e30) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaiddays), in addition to any and all other remedies available to Landlord at law or in equity, Landlord then Beneficiary shall have the right to immediately terminate foreclose the lien of this Lease and all rights Deed of Tenant hereunder by giving written notice Trust. In addition, Beneficiary may exercise any remedy available at law or in equity or under the Power Purchase Agreement to Tenant of its election Beneficiary, including but not limited to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or whichthose listed below, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts sequence or combination as Beneficiary may determine in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its Beneficiary’s sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as followsdiscretion:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Power Purchase Agreement (First Wind Holdings Inc.)
Default and Remedies. 25.1 The occurrence of any a. Each of the following shall constitute an "EVENT OF DEFAULT" under be deemed a breach of this Lease and a default by TenantLessee:
(ai) Any failure by Tenant to pay If any material representation or warranty of Lessee herein or as Seller in the Purchase Agreement was false when made, or in the event that any such representation or warranty is continuing and becomes false at any time, or if Lessee renders any false statement or account;
ii) If any rent of or other monetary sums due any of the Rent required to be paid by Tenant hereunder where such failure continues remain unpaid for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; providedto Lessee;
iii) If Lessee becomes insolvent, that if the nature performs any act of such default bankruptcy or is such that not generally paying its debts as the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completionbecome due;
(civ) Any If Lessee fails to perform any of the covenants, conditions or obligations of this Lease; or
v) If there is a breach or default by Tenant under the Purchase Agreement, under any license or franchise permitting Lessee or Guarantors to operate the Premises in the manner authorized or if such license or franchise otherwise terminates or expires, under any Guarantee of Lessee's obligations under this Lease or under any other lease agreement between Landlord Lessor and Tenant for Lessee.
b. If any such breach or default does not involve the payment of any rental or other premises monetary sum, is not willful or intentional, does not place any rights or property of Lessor in the Center;
immediate jeopardy, is not known to Lessee (dunless Lessor has given Lessee notice thereof) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking within the reasonable power of Lessee to cure within 30 days after receipt of notice thereof, all as determined by Lessor in its reasonable discretion, then such event shall not constitute a subtenant default hereunder, unless otherwise expressly provided herein, unless and until Lessor shall have given Lessee notice thereof and a period of 30 days shall have elapsed, during which period Lessee may correct or assigneecure such event, no upon failure of which a default shall be deemed to exist under this Lease so long have occurred hereunder without further notice or demand of any kind. If such breach or default cannot reasonably be cured with the 30 day period, as Tenant determined by Lessor, in its reasonable discretion, and Lessee is paying the Rent required diligently pursuing a cure of such breach or default, then Lessee shall, after receiving notice specified herein, have a reasonable period to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Leasecure such breach or default.
25.2 c. In the event of any Event of Default breach or default, and without any notice, except, if applicable, the notice prior to default required under certain circumstances by Tenant Paragraph b above or such other notice as aforesaid, in addition to any may be required by law and cannot be waived by Lessee (all other notices being hereby waived), Lessor shall be entitled to exercise, at its option, concurrently, successively or in any combination, all remedies available to Landlord at law or in equity, Landlord including without limitation any one or more of the following:
i) To terminate this Lease;
ii) To reenter and take possession of the Premises or any part thereof (which reentry shall have the right not operate to immediately terminate this Lease unless Lessor expressly so elects), of any or all personal property or fixtures of Lessee upon the Premises, the Equipment and of all franchises, licenses, permits and other rights or privileges of Tenant hereunder by giving written notice Lessee pertaining to Tenant the use and operation of its election the Premises and to do so. If Landlord conduct business thereon in the name of Lessor or of Lessee but for the sole profit and benefit of Lessor and without compensation to Lessee;
iii) To seize all personal property, the Equipment or fixtures upon the Premises which Lessee owns or in which it has an interest, in which Lessor shall elect have a landlord's lien and is hereby granted a security interest, and to terminate this Lease, then it may recover from Tenant:
(a) The worth dispose thereof in accordance with laws prevailing at the time of the award of the unpaid rent payable hereunder which had been earned at the date and place of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount seizure or to remove all or any portion of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may cause the same to be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.Lessee;
25.5 If Landlord (in accordance with California Civil Code Section 1951.4iv) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or To relet the Premises or any part or parts thereof for such term or terms (including a term which extends beyond the original term of this Lease, at such rentals and upon such provisions other terms as LandlordLessor, in its sole judgmentdiscretion, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaiddetermine, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of with all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals proceeds received from such reletting during any month, which is being applied to the payment rentals and other sums due from Lessee in such order as Lessor may, in its sole discretion, determine, with Lessee remaining liable for deficiency;
v) To recover from Lessee an amount equal to the difference between the rentals and such other sums (including all sums required to be paid by Lessee, such as taxes and insurance) to be received from the date of rent hereundersuch breach to the expiration of the original term hereof and the reasonable long term rental value of the Premises for the same period; and/or
vi) To recover from Lessee all expenses, including attorney fees, reasonably paid or incurred by Lessor as a result of such breach. In addition, in the event of any breach or default by Lessee, Lessor may, but shall not be less than the rent payable hereunder during that month by Tenantobligated to, then Tenant shall pay such deficiency to Landlord forthwith upon demandimmediately or at any time thereafter, and said deficiency shall be calculated without notice, except as required herein, correct such breach or default without, however, curing the same for the account and at the expense of the Lessee. Any sum or sums so paid monthly. Tenant shall also pay Landlord as soon as ascertained by Lessor, together with interest at the then existing maximum legal rate, but not higher than 18% per annum, and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article damages, shall be construed as an election deemed to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article additional rent hereunder and shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental be immediately due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commencedLessee to Lessor.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Termination and Modification Agreement (Quality Dining Inc)
Default and Remedies. 25.1 The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant Lessee shall be in default hereunder if (i) Lessee fails to pay when due Rent or any other payment required hereunder within five (5) days of the Rent required due date thereof, (ii) Lessee fails to be paid by Tenant hereunder where observe, keep or perform any other term or condition of this Lease and such failure continues for five twenty (520) business days after Tenant's following receipt of written notice thereof from Lessor, (iii) any representation or warranty made by Lessee herein or in any document delivered to Lessor in connection herewith shall prove to be false or misleading, (iv) Lessee defaults under any other obligation to Lessor, or (v) at any time there shall occur under (A) any lease between Lessee and a party other than Lessor as lessor or (B) under any lease wholly or partially guaranteed by Lessee, the exercise by the lessor of its possessory remedies or commencement of legal proceedings by the lessor for default under the lease; provided that the same is overdue;aggregate future payments remaining to be made or guaranteed by Lessee exceed $25,000, and that under a lease described in (B) above within ten days of notice to Lessee of such exercise of remedies and demand for payment by Lessee any such amount guaranteed by Lessee remains unpaid.
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; providedIf Lessee is in default, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord Lessor shall have the right to immediately terminate take any one or more of the following actions: (i) proceed by appropriate court action or actions at law or in equity to enforce performance by Lessee of the term and conditions of this Lease and all rights of Tenant hereunder and/or recover damages for the breach thereof; and/or (ii) by giving written notice to Tenant Lessee, which notice shall apply to all Schedules hereunder except as specifically excluded therefrom by Lessor, declare due and payable, and Lessee shall without further demand, forthwith pay to Lessor an amount equal to any unpaid Rent then due as of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such terminationnotice plus, as liquidated damages or loss of the bargain and not as a penalty, an amount equal to the Stipulated Loss Value as set forth in the Schedules, and Lessee shall return the Equipment to Lessor as provided in Section 13. Should Lessee fail to return the Equipment within five (5) days of receipt of such notice, Lessor may, personally, or by its agents, and with or without notice of legal process, enter upon the premises where the Equipment is located, without liability for trespass or other damages, and repossess the Equipment free from all claims by Lessee. Return or repossession of the Equipment shall not constitute a termination of this Lease unless Lessor so notifies Lessee in writing. With respect to Equipment returned to or repossessed by Lessor, if Lessor has not terminated this Lease, Lessor will, in such manner and upon such terms as Lessor may determine in its sole discretion, either sell such Equipment at one of more public or private sales or re-lease the Equipment. The proceeds of sale or re-lease shall be applied in the following order or priority: (i) to pay all Lessor's fees, costs and expenses for which Lessee is obligated pursuant to (c), below; plus
(bii) to the extent not previously paid by Lessee, to pay Lessor its liquidated damages hereunder and all other sums then remaining unpaid hereunder; and (iii) to reimburse Lessee for any sums previously paid by Lessee to Lessor as liquidated damages; and (iv) any surplus shall be retained by Lessor. In the event the proceeds of sale or re-lease are less than the sum of the amounts payable under (i) and (ii), Lessee shall pay Lessor such deficiency, forthwith. The worth Proceeds of a credit sale or re-lease shall be discounted to their present value at the time prime rate in effect at the inception of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plusSchedules plus four hundred (400) basis points (4%).
(c) The worth at Lessee shall be liable for all legal and collection fees, costs and expenses arising from Lessee's default and the time exercise of Lessor's remedies hereunder, including costs of repossessions, storage, repairs, reconditioning and sale or re-leasing of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plusEquipment.
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in In the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and event that any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding jurisdiction determines that any reletting without termination by Landlord because provision of Tenant's defaultthis Section 15 is invalid or unenforceable in whole or in part, Landlord may at such determination shall not prohibit Lessor from establishing its damages sustained as a result of any time after such reletting elect to terminate breach of this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right any action or proceeding in which Lessor seeks to recover such damages. Any repossession of sale or re-lease of the Equipment shall not bar an action for damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant breach of this Lease, Tenant as hereinabove provided, and the bringing of an action or the entry of judgment against Lessee shall pay not bar Lessor's right to repossess the reasonable fees Equipment. No express or implied waiver by Lessor of such attorney for his services regardless any default shall in any way be, or be construed to be, a continuing waiver or a waiver of the fact that no legal proceeding any future or action may have been filed or commencedsubsequent default.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Default and Remedies. 25.1 The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any If the purchase and sale of the Rent required Property contemplated hereby does not close in accordance with the terms and conditions of this Agreement as the result of actions, failures or circumstances which constitute a breach or default by Purchaser of Purchaser’s obligations under this Agreement, and if the Purchaser fails or refuses to be paid by Tenant hereunder where cure such failure continues for five default within ten (510) business days after Tenant's receipt delivery of written notice thereof from Seller describing the default and, if any action is possible to cure the same, describing such action, then Purchaser shall be in default under this Agreement and Escrow Agent shall pay the Xxxxxxx Money to Seller as full and complete liquidated damages and as Seller’s sole remedy for such default by Purchaser; it being acknowledged and agreed by Seller and Purchaser that as of the date hereof damages to Seller in such event are incapable of being determined with a reasonable degree of certainty and that the same Xxxxxxx Money is overdue;a reasonable pre- loss estimate of all damages Seller would sustain in such event. Upon payment by Escrow Agent of the Xxxxxxx Money to Seller, as above provided, no party to this Agreement shall have any further liability to any other party to this Agreement.
(b) A failure by Tenant to observe If the purchase and perform any other provision sale of the Property contemplated hereby does not close in accordance with the terms and conditions of this Lease Agreement as the result of actions, failures or circumstances which constitute a breach or default by Seller of Seller’s obligations under this Agreement, and if the Seller fails or refuses to be observed or performed by Tenant where cure such failure continues for thirty default within ten (3010) days after delivery of written notice thereof from LandlordPurchaser describing the default and, if any action is possible to cure the same, describing such action, then at Purchaser’s election (i) Escrow Agent shall upon request of Purchaser shall return the Xxxxxxx Money to Purchaser and this Agreement shall terminate and no party shall have further obligations hereunder except those which specifically survive termination; providedand (ii) Purchaser may pursue any action for specific performance, except that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation event specific performance is not a practically available remedy for Purchaser, Purchaser shall be entitled to bring an action to recover its actual out of pocket costs of investigation of the PremisesProperty and preparation for Closing up to a maximum amount of $25,000. The foregoing are the Purchaser’s sole and exclusive remedies, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to Purchaser waiving any and all other remedies available to Landlord at law or in equityclaims, Landlord shall have the right to immediately terminate this Lease causes of action and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to timedamages.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Default and Remedies. 25.1 The occurrence (a) In the event of any breach of any covenant or condition of this Lease or if the premises are deserted or vacated by Tenant, the Landlord shall have the right to enter, by force if necessary, as Tenant's agent to relate the leased premises, on behalf of the Tenant and to apply there income to the payment of rent due under this Lease and to hold Tenant liable and to xxx the Tenant for any deficiencies resulting therefrom, including rent not yet due under this Lease for the unexpired balance of the term of this Lease and including reasonable attorneys' fees and court costs.
(b) If the rent agreed to be paid, including all other sums of money which under the provisions hereof may be considered as additional rent, shall be in arrears in whole or in part for Thirty (30) or more days, Landlord may distrain therefor (and in connection with distraint proceedings Tenant agrees that a nominal bond not to exceed Five Hundred Dollars ( $500.00) shall be sufficient), and the covenant to pay rent herein shall be considered breached by Tenant. If enant shall be in breach of any of the following shall constitute an "EVENT OF DEFAULT" under covenants set forth in this Lease Agreement, Landlord may at its option, after having given notice set forth below, and if Tenant, after such notice, shall fail to remedy such breach as set forth below, reenter the leased premises without the need for resort to judicial proceedings, and declare this Lease and the tenancy hereunder terminated, and Landlord shall be entitled to the benefit of all provisions of the law respecting the speedy recovery of lands and tenements held over by tenants or proceedings in forcible entry and detained. Tenant agrees that if Landlord shall so reenter or if this Lease shall be terminated by Landlord because of breach hereunder by Tenant:
(a) Any failure by Tenant to pay when If the rent shall become due any of the Rent required to thereupon and be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt up to the time of written notice that the same is overdue;reentry, dispossession, expiration or termination, together with reasonable express Landlord as hereinafter defined; and
(b) A Landlord may relate the leased premises or any part thereof, either in the name of Landlord or otherwise, for a term or terms which may, at Landlord's option, be less than or exceed the period which would otherwise have constituted the balance of the terms which may, at Landlord's option, be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and may grant reasonable concessions; and c Tenant shall also pay to Landlord as liquidated damages upon demand by Landlord at any time following such reentry or termination for the failure by of Tenant to observe and perform any other provision the covenants of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
any deficiency between (a) The worth at the sum of ( i ) the minimum monthly rent as adjusted in this Lease for changes in the cost of living for the month immediately preceding such reentry or termination, plus ( ii ) the additional rent (adjusted to a monthly payment) payable hereunder for the month immediately preceding such reentry or termination times the number of months constituting the balance of the lease term, and (b) the amount, if any, of rents actually collected up to the time of the award Landlord's demand for liquidated damages on account of the unpaid rent payable hereunder which had been earned at leased premises for any of the period following the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent reentry, dispossession, expiration, or termination which would otherwise have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for constituted the balance of the term after the time of the award exceeds the amount of Lease. In computing such rental loss liquidated damages, which Tenant proves could shall be reasonably avoided; plus
(d) Any other amounts necessary payable to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet demand as aforesaid, then rentals received by Landlord therefrom there shall be applied as follows:
(a) added to the payment of any indebtedness of Tenant to said deficiency such reasonable expenses as Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord may incur in connection with reletting, such as court costs, attorneys' fees, real estate brokerage commissions, and for keeping the leased premises in good order or for preparing the same for reletting;
(c) to the payment . All liquidated damages hereinabove described shall be payable in full upon termination of the cost Lease or reentry by Landlord as aforesaid. In the event Landlord shall determine that Tenant shall be in breach in the performance of any alterations of and repairs the covenants on its part to the Premises; and
(d) to be performed hereunder, except for the payment of rent due and unpaid hereunder and and/or additional rent, Landlord shall be required to give written notice thereof to Tenant. Tenant shall have ten (10) days following receipt of such written notice to cure the residuebreaches described in such notice, unless Landlord shall agree in writing to any extension of such period; PROVIDED, HOWEVER, if anyTenant shall proceed with due diligence to cure said breaches after said notice, then such ten (10) day period shall be held by Landlord extended to such a period of time as may be required, in the Landlord's reasonable discretion, to cure such listed breaches while proceeding with due diligence. The provisions herein dealing with notice and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied granting to the Tenant a grace period for performance shall not be applicable to a Tenant's breach of this Lease Agreement because of nonpayment of rent and/or additional rent. There shall be no notice requirements required or grace periods allowed (other than those specifically applicable to payment of rent hereunder, be less than or additional rent) in the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession case of the Premises by Landlord under this Article shall be construed as an election to terminate a breach of this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder Agreement by Tenant shall bear interest at the maximum lawful rate per annum from the due date for nonpayment of rent (minimum and until payment thereofadditional).
Appears in 1 contract
Default and Remedies. 25.1 The occurrence of Seller or Buyer shall be in default under this Contract if either fails to comply with any of material covenant, agreement or obligation within any time limits required by this Contract. Following a default by either Seller or Buyer under this Contract, the other party shall have the following shall constitute an "EVENT OF DEFAULT" under remedies, subject to the provisions of Article 22 of this Lease by TenantContract:
(a) Any If Seller defaults, except with respect to the failure to close by Tenant the date of Closing (for which Seller shall have no right to pay when due any cure), Seller shall have ten (10) days to cure said default. If Seller refuses or is unable to cure said default as set forth herein, Buyer may (i) specifically enforce this Contract and recover damages suffered by Buyer as a result of the Rent required to be paid delay in the acquisition of the Property; or (ii) terminate this Contract by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that to Seller and receive the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation return of the PremisesXxxxxxx Money and interest accrued thereon and, provided that if Tenant has vacated the Premises at Buyer’s option, pursue any remedy and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies damages available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect Buyer elects to terminate this LeaseContract, then it may recover from Tenant:
(a) The worth at the time of Xxxxxxx Money and interest accrued thereon shall be returned to Buyer upon written demand to the award of Escrow Agent and the unpaid rent payable hereunder which had been earned at Escrow agent is hereby authorized by Buyer and Seller to so return the date of such termination; plusXxxxxxx Money to Buyer.
(b) The worth at the time If Buyer defaults, Seller may (i) specifically enforce this Contract and recover damages suffered by Seller as a result of the award delay in the sale of the amount Property; or (ii) terminate this Contract by which written notice to Buyer and, at Seller's option, either retain the unpaid rent which Xxxxxxx Money as liquidated damages as Seller's sole remedy (the parties recognizing that it would have been earned after termination be extremely difficult to ascertain the extent of actual damages caused by Buyer's breach, and until that the time of the award exceeds the amount Xxxxxxx Money represents a fair approximation of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth actual damages as the parties can now determine), or pursue any other remedy and damages available at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to law or in lieu equity. If, as a result of the foregoing as may be permitted by applicable California law from time a default under this Contract, either Seller or Buyer employs an attorney to time.
25.3 As used in subparagraphs (a) and (b) aboveenforce its rights, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) abovelosing party shall, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided unless prohibited by law, and if Landlord has not elected to terminate this Leasereimburse the prevailing party for all reasonable attorneys’ fees, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all court costs and other legal expenses incurred by Landlord the prevailing party in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunderdefault. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.Seller(s)______/______ Buyer(s)______/______
Appears in 1 contract
Samples: Purchase and Sale Agreement (Windgate Acquisition LTD)
Default and Remedies. 25.1 The occurrence of In the event: --------------------
a. Tenant shall at any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant time fail to pay when due rent, or any other payment to Landlord required hereunder, within ten (10) days following the date the same is due; provided, in the event Tenant fails to timely pay its rent hereunder, Landlord shall give written notice specifying such delinquency, a maximum of the Rent required to be paid by two occasions each lease year, and Tenant hereunder where such failure continues for shall have five (5) business days after Tenant's following its receipt of such notice to cure such delinquency (it being understood that Landlord shall not be required to give written notice that the same is overduefor any default under this subparagraph a. more than two occasions in any lease year);
(b) A failure by b. Tenant shall fail to keep, perform, or observe and perform any other provision of this Lease covenant, agreement, condition, or undertaking hereunder, and shall fail to be observed or performed by Tenant where remedy such failure continues for default within thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed has been mailed by Landlord to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completionTenant;
(c) Any default by c. Tenant under any other lease between Landlord and Tenant makes an assignment for other premises in the Centerbenefit of creditors;
(d) The abandonment or vacation of the Premises, provided that if d. Tenant has filed against it a petition for bankruptcy and such petition is not vacated the Premises and is actively seeking or stayed within ninety (90) days after its entry; or
e. Tenant files a subtenant petition for bankruptcy or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunderarrangement in settlement of liabilities or reorganization; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, then Landlord shall have the right pursuant to immediately terminate this Lease and all rights of Tenant hereunder by giving written legal process, without further notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from or demand upon Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter or take exclusive possession of the Premises and remove all property and persons therefromPremises, and to refuse to allow Tenant to enter the same or have possession thereof; to change the locks on the doors to the Premises; and to remove any such furniture or other property may be removed and stored in a public warehouse or elsewhere at upon the cost and for the account of TenantPremises, all in accordance with all Legal Requirements.
25.5 If without being liable to Tenant for any damages or to any prosecution therefor. Should Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided permitted in this paragraph, or shall should it take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided for by law, and if Landlord has not elected it may either terminate this Lease or it may, from time to terminate time without terminating this Lease, Landlord make such alterations and repairs as may continue this Lease and may either recover all rental as it becomes due or be necessary in order to relet the Premises, and relet said Premises or any part or parts thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rent or rents (including rent concessions) and upon such provisions other terms and conditions as Landlord, in its sole judgmentdiscretion, may deem advisable and shall have advisable, for its own account or as agent for Tenant's account in the right to make repairs to and alterations name of the Premises.
25.6 If Landlord shall elect to relet as aforesaidTenant, then rentals or its own name. Upon each such reletting, all rents received by Landlord therefrom from such reletting shall be applied as follows:
(a) applied, first, to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) Tenant to Landlord; second, to the payment of all any costs and expenses incurred by Landlord in connection with of such reletting;
(c) to , including brokerage fees, attorneys' fees, and the payment costs of the cost of any such re-entry, alterations of and repairs to the Premisesrepairs; and
(d) third, to the payment of rent due and unpaid hereunder hereunder; and the residue, if any, and if Landlord shall have relet as agent of Tenant for Tenant's account, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder, or if Landlord has relet on its own account, then the residue shall belong to Landlord. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of If such rentals rents received from such reletting during any month, which is applied to the payment of rent hereunder, month shall be less than the rent payable hereunder that to be paid during that month by TenantTenant hereunder, then Tenant shall pay any such deficiency to Landlord forthwith upon demand, and said Landlord. Such deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with No such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election on its part to terminate this Lease unless a written notice of such intention is be given to Tenant or unless the termination thereof be adjudged decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination by Landlord because of Tenant's defaulttermination, Landlord may at any time after such reletting thereafter elect to terminate this Lease because of for such default.
25.8 Nothing contained previous breach. Should Landlord at any time terminate this Lease for any breach, in this Article shall constitute a waiver of Landlord's right addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of Landlord's efforts such breach, including the cost of recovering the Premises, reasonable attorneys' fees, and the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as rent reserved in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination the remainder of the stated term over the fair market rental value of the Premises for the unexpired term of this Lease.
25.9 Subject only Lease as reasonably estimated by Landlord, all of which amounts shall be immediately due and payable from Tenant to Article 31, if Landlord shall retain an attorney Landlord. If the Premises or any part thereof be relet by Lessor for the purpose of collecting any rental due from Tenant or enforcing any other covenant unexpired term of this Lease, the amount of rent reserved upon such reletting shall be deemed to be the fair market rental value of the Premises for the calculation of the preceding sentence. In addition to its other rights and remedies available hereunder, if Tenant refuses or neglects to perform any covenant contained herein, Landlord may upon ten (10) days' advance written notice to Tenant specifying Tenant's failure to perform (provided no such notice shall be required upon circumstances which Landlord reasonably regards as an emergency) perform such covenant and Tenant shall pay the reasonable fees of such attorney cost thereof on demand. All rights and remedies expressly provided in this Lease for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent Landlord's protection shall be cumulative and in addition to any other sums due rights and payable hereunder remedies provided by law or equity. Tenant agrees to reimburse Landlord for reasonable attorneys' fees and costs for any proceedings necessary to enforce any remedies available to Landlord hereunder. A waiver by Landlord of a breach of default by Tenant under the terms and conditions of this Lease shall not be construed to be a waiver of any subsequent breach or default or of any other term or condition of this Lease, and the failure of Landlord to assert any breach or to declare a default by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereofnot be construed to constitute a waiver thereof so long as such breach or default continues unremedied.
Appears in 1 contract
Samples: Lease (Viking Office Products Inc)
Default and Remedies. 25.1 The occurrence If and whenever an Event of Default occurs, then without prejudice to any of other rights which it has pursuant to this lease or at law, the Landlord shall have the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenantrights and remedies, which are cumulative and not alternative:
(a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five terminate this lease:
(5i) business 10 days after Tenant's receipt of written notice that has been given to the same is overdueTenant of a financial default, which default has not been cured by the Tenant during such 10 day period; and
(ii) 20 days after written notice has been given to the Tenant of a non-financial default, which default has not been cured by the Tenant during such 20 day period;
(b) A failure by to enter the Premises as agent of the Tenant and to relet the Premises for whatever term, and on such terms as the Landlord in its discretion may determine and to receive the rent therefor and as agent of the Tenant to observe and perform take possession of any other provision property of this Lease to be observed or performed by the Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of on the Premises, provided that if to store such property at the expense and risk of the Tenant has vacated or to sell or otherwise dispose of such property in such manner as the Landlord may see fit without notice to the Tenant; to make alterations to the Premises to facilitate their reletting; and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying apply the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event proceeds of any Event such sale or reletting first, to the payment of Default any expenses incurred by Tenant as aforesaid, in addition the Landlord with respect to any and all other remedies available to Landlord at law such reletting or in equitysale; second, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of the Tenant to the Landlord other than rent due hereunder from Tenant;
(b) Rent; and third, to the payment of all costs Rent in arrears; with the residue to be held by the Landlord and expenses incurred by Landlord applied in connection with such relettingpayment of future Rent as it becomes due and payable. The Tenant shall remain liable for any deficiency to the Landlord;
(c) with prior written notice to the payment Tenant, to remedy or attempt to remedy any default of the cost Tenant under this lease for the account of the Tenant and to enter upon the Premises for such purposes. No notice of the Landlord's intention to perform such covenants need be given the Tenant unless expressly required by this lease. The Landlord shall not be liable to the Tenant for any loss, injury or damage caused by acts of the Landlord in remedying or attempting to remedy such default and the Tenant shall pay to the Landlord all expenses incurred by the Landlord in connection with remedying or attempting to remedy such default;
(d) to recover from the Tenant all damages and expenses incurred by the Landlord as a result of any alterations breach by the Tenant including, if the Landlord terminates this lease, any deficiency between those amounts which would have been payable by the Tenant for the portion of the Term following such termination and repairs the net amounts actually received by the Landlord during such period of time with respect to the Premises; and
(de) to recover from the payment Tenant the full amount of rent due the current month's Rent together with the next 1 month's instalment of Rent, all of which shall accrue on a day-to-day basis and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may immediately become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such relettingaccelerated rent.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Default and Remedies. 25.1 The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any If the purchase and sale of the Rent required Property contemplated hereby does not close in accordance with the terms and conditions of this Agreement as the result of actions, failures or circumstances which constitute a breach or default by Purchaser of Purchaser’s obligations under this Agreement, and if the Purchaser fails or refuses to be paid by Tenant hereunder where cure such failure continues for five default within ten (510) business days after Tenant's receipt delivery of written notice that thereof from Seller describing the same default and, if any action is overdue;possible to cure the same, describing such action, Seller shall retain the Xxxxxxx Money as bargained for liquidated damages incurred by the Seller arising from the Purchaser’s failure to close, and not a penalty.
(b) A failure by Tenant to observe If the purchase and perform any other provision sale of the Property contemplated hereby does not close in accordance with the terms and conditions of this Lease Agreement as the result of actions, failures or circumstances which constitute a breach or default by Seller of Seller’s obligations under this Agreement, and if the Seller fails or refuses to be observed or performed by Tenant where cure such failure continues for thirty default within ten (3010) days after written delivery of notice thereof from LandlordPurchaser describing the default and, if any action is possible to cure the same, describing such action, Purchaser shall elect either: (i) to terminate this Agreement by delivery of written Notice of Termination to the Seller, in which case the Xxxxxxx Money shall be promptly refunded to Purchaser, and Purchaser shall have the right within six (6) months thereafter to commence an action for damages incurred by the Purchaser; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
or (cii) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of alternative, the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord Purchaser shall have the right to immediately terminate sue Seller for specific performance of this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this LeaseAgreement, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent and, if Seller should receive an order for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or whichspecific performance, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord Purchaser shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any receive a monetary award of damages not in excess rental received by Landlord over of Purchaser’s attorney’s fees and above that which Tenant is obligated costs of the litigation actually incurred. The inability of Seller to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied convey the Property to the payment Purchaser on the Closing Date with the quality of rent hereunder, be less than the rent payable hereunder during that month title required by Tenant, then Tenant this Agreement shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred not constitute a default by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord Seller under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or Agreement unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time title restriction causing such inability arises after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages the Effective Date by reason of Landlord's efforts to mitigate a willful action of the damages to it caused by Tenant's default; nor shall anything Seller in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination violation of this LeaseAgreement or the failure to take an action required by this Agreement which Seller could have taken.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Default and Remedies. 25.1 The occurrence of any (a) Each of the following shall constitute an "EVENT OF DEFAULT" under be deemed a breach of this Lease and a default ("Default") by TenantLessee:
(ai) Any failure by Tenant to pay If any material representation or warranty of Lessee herein or the Seller in the Agreement was false when made, or in the event that any such representation or warranty is continuing and becomes false at any time, or if Lessee renders any false statement or account;
(ii) If any Rent due any of the Rent required to be paid by Tenant hereunder where such failure continues remains unpaid for five (5) business days after Tenant's receipt the due date thereof;
(iii) If Lessee becomes insolvent, makes a general assignment for the benefit of written notice that creditors, seeks or consents to the appointment of a trustee or liquidator, shall dissolve or liquidate all or a material portion of its assets, performs any act of bankruptcy or is not generally paying its debts as the same become due;
(iv) If Lessee fails to perform any of the covenants, conditions or obligations of this Lease;
(v) If Lessee ceases to operate financial institution activities at the Premises;
(vi) If there is overdue;a breach, default, termination or expiration under any of those leases shown on Exhibit B attached hereto ("Counterpart Leases").
(b) A failure If any breach or default does not involve the payment of any rental or other monetary sum, is not willful or intentional, does not place any rights or property of Lessor in immediate jeopardy, is not known to Lessee (unless Lessor has given Lessee notice thereof) and is within the reasonable power of Lessee to cure within 20 days after notice thereof (all as determined by Tenant to observe Lessor in its reasonable discretion), then such event shall not constitute a default hereunder, unless otherwise expressly provided herein, until Lessor shall have given Lessee notice thereof and perform any other provision a period of this Lease to be observed or performed by Tenant where such failure continues for thirty twenty (3020) days after written notice thereof from Landlord; providedshall have elapsed, that if the nature during which period Lessee may correct or cure such event, upon failure of such default is such that the same cannot with due diligence be cured within said period, Tenant which a Default shall not be deemed to have occurred 101 hereunder without further notice or demand of any kind. If any breach or default cannot reasonably be cured with the 20-day period, as determined by Lessor in default if it shall within said its reasonable discretion, and Lessee is diligently pursuing a cure of such breach or default, then Lessee shall, after receiving notice specified herein, have a reasonable period commence as determined by the Lessor to cure such during and thereafter diligently prosecutes the same to completion;breach or default.
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default breach or default, and without any notice, except, if applicable, the notice required under certain circumstances by Tenant paragraph (b) above or such other notice as aforesaid, in addition to any may be required by law and cannot be waived by Lessee (all other notices being hereby waived), Lessor shall be entitled to exercise, at its option, concurrently, successively or in any combination, all remedies available to Landlord at law or in equity, Landlord including, without limitation, any one or more of the following:
(i) To terminate this Lease;
(ii) To re-enter and take possession of the Premises or any part thereof (which re-entry shall have the right not operate to immediately terminate this Lease unless Lessor expressly so elects), of any or all personal property or fixtures of Lessee upon the Premises, and of all franchises, licenses, permits and other rights or privileges of Tenant hereunder by giving written notice Lessee pertaining to Tenant the use and operation of its election to do so. If Landlord shall elect to terminate this Leasethe Premises, then it may recover from Tenant:if any and if assignable;
(aiii) The worth To seize all personal property and fixtures upon the Premises which Lessee owns or in which it has an interest, in which Lessor shall have a landlord's lien and is hereby granted a security interest, and to dispose thereof in accordance with laws prevailing at the time of the award of the unpaid rent payable hereunder which had been earned at the date and place of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount seizure or to remove all or any portion of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may cause the same to be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.Lessee;
25.5 If Landlord (in accordance with California Civil Code Section 1951.4iv) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or To relet the Premises or any part or parts thereof for such term or terms (including a term which extends beyond the original term of this Lease), at such rentals and upon such provisions other terms as LandlordLessor, in its sole judgmentdiscretion, may deem advisable determine, with all proceeds received from such reletting being applied to the rentals and other sums due from Lessee in such order as Lessor may, in its sole discretion, determine, with Lessee remaining liable for any deficiency;
(v) To recover from Lessee an amount equal to the difference between the rentals and such other sums (including all sums required to be paid by Lessee, such as taxes and insurance) to be received from the date of such Default to the expiration of the original term hereof and the reasonable long term rental value of the Premises for the same period; and/or
(vi) To recover from Lessee all expenses, including attorneys' fees, reasonably paid or incurred by Lessor as a result of such breach. In addition, in the event of any Default by Lessee, Lessor may, but shall not be obligated to, immediately or at any time thereafter, and without notice, except as required herein, 102 correct such default for the account and at the expense of Lessee. Any sum or sums so paid by Lessor, together with interest at the Default Rate and all costs and damages, shall be deemed to be additional Rent hereunder and shall be immediately due from Lessee to Lessor. If any Default or threatened Default by Lessee of any of the agreements, terms, covenants, or conditions contained in this Lease shall occur, Lessor shall be entitled to enjoin such Default or threatened Default and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet invoke any right or remedy allowed at law or in equity, or by statute or otherwise, as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No though re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained summary proceedings and other remedies were not provided for in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Argo Bancorp Inc /De/)
Default and Remedies. 25.1 The occurrence of any (a) Each of the following shall constitute an "EVENT OF DEFAULT" under be deemed a breach of this Lease and a default ("Default") by TenantLessee:
(ai) Any failure by Tenant to pay If any material representation or warranty of Lessee herein or the Seller in the Agreement was false when made, or in the event that any such representation or warranty is continuing and becomes false at any time, or if Lessee renders any false statement or account;
(ii) If any Rent due any of the Rent required to be paid by Tenant hereunder where such failure continues remains unpaid for five (5) business days after Tenant's receipt the due date thereof;
(iii) If Lessee becomes insolvent, makes a general assignment for the benefit of written notice that creditors, seeks or consents to the appointment of a trustee or liquidator, shall dissolve or liquidate all or a material portion of its assets, performs any act of bankruptcy or is not generally paying its debts as the same become due;
(iv) If Lessee fails to perform any of the covenants, conditions or obligations of this Lease;
(v) If Lessee ceases to operate financial institution activities at the Premises;
(vi) If there is overdue;a breach, default, termination or expiration under any of those leases shown on Exhibit B attached hereto ("Counterpart Leases").
(b) A failure If any breach or default does not involve the payment of any rental or other monetary sum, is not willful or intentional, does not place any rights or property of Lessor in immediate jeopardy, is not known to Lessee (unless Lessor has given Lessee notice thereof) and is within the reasonable power of Lessee to cure within 20 days after notice thereof (all as determined by Tenant to observe Lessor in its reasonable discretion), then such event shall not constitute a default hereunder, unless otherwise expressly provided herein, until Lessor shall have given Lessee notice thereof and perform any other provision a period of this Lease to be observed or performed by Tenant where such failure continues for thirty twenty (3020) days after written notice thereof from Landlord; providedshall have elapsed, that if the nature during which period Lessee may correct or cure such event, upon failure of such default is such that the same cannot with due diligence be cured within said period, Tenant which a Default shall not be deemed to have occurred 12 44 hereunder without further notice or demand of any kind. If any breach or default cannot reasonably be cured with the 20-day period, as determined by Lessor in default if it shall within said its reasonable discretion, and Lessee is diligently pursuing a cure of such breach or default, then Lessee shall, after receiving notice specified herein, have a reasonable period commence as determined by the Lessor to cure such during and thereafter diligently prosecutes the same to completion;breach or default.
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default breach or default, and without any notice, except, if applicable, the notice required under certain circumstances by Tenant paragraph (b) above or such other notice as aforesaid, in addition to any may be required by law and cannot be waived by Lessee (all other notices being hereby waived), Lessor shall be entitled to exercise, at its option, concurrently, successively or in any combination, all remedies available to Landlord at law or in equity, Landlord including, without limitation, any one or more of the following:
(i) To terminate this Lease;
(ii) To re-enter and take possession of the Premises or any part thereof (which re-entry shall have the right not operate to immediately terminate this Lease unless Lessor expressly so elects), of any or all personal property or fixtures of Lessee upon the Premises, and of all franchises, licenses, permits and other rights or privileges of Tenant hereunder by giving written notice Lessee pertaining to Tenant the use and operation of its election to do so. If Landlord shall elect to terminate this Leasethe Premises, then it may recover from Tenant:if any and if assignable;
(aiii) The worth To seize all personal property and fixtures upon the Premises which Lessee owns or in which it has an interest, in which Lessor shall have a landlord's lien and is hereby granted a security interest, and to dispose thereof in accordance with laws prevailing at the time of the award of the unpaid rent payable hereunder which had been earned at the date and place of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount seizure or to remove all or any portion of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may cause the same to be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.Lessee;
25.5 If Landlord (in accordance with California Civil Code Section 1951.4iv) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or To relet the Premises or any part or parts thereof for such term or terms (including a term which extends beyond the original term of this Lease), at such rentals and upon such provisions other terms as LandlordLessor, in its sole judgmentdiscretion, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaiddetermine, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of with all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals proceeds received from such reletting during any month, which is being applied to the payment of rent hereunderrentals and other sums due from Lessee in such order as Lessor may, be less than in its sole discretion, determine, with Lessee remaining liable for any deficiency;
(v) To recover from Lessee an amount equal to the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by difference between the rentals and such other sums (including all sums required to be paid by Lessee, such as taxes and insurance) to be received from the date of such reletting.
25.7 No re-entry or taking possession Default to the expiration of the original term hereof and the reasonable long term rental value of the Premises for the same period; and/or
(vi) To recover from Lessee all expenses, including attorneys' fees, reasonably paid or incurred by Landlord under this Article shall be construed Lessor as an election to terminate this Lease unless a written notice result of such intention is given to Tenant breach. In addition, in the event of any Default by Lessee, Lessor may, but shall not be obligated to, immediately or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's rightthereafter, and without notice, except as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.required herein,
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Argo Bancorp Inc /De/)
Default and Remedies. 25.1 The occurrence xxxxx.xxx
7.1 If an event of default has occurred and is continuing with respect to any LCCCA Bond Documents, then notwithstanding any agreement, expressed or implied, between or among the Bank, the Trustee, the County and the LCCCA to waive, modify or suspend enforcement of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any rights of the Rent required Bank or obligations of the LCCCA, the LCCCA shall immediately notify the Trustee and the parties hereto that a default has occurred and for the purpose of instructing the Trustee to direct the County Treasurer to remit 100% of the HRRT into the Convention Center Authority Trust Fund which will be paid used by Tenant hereunder where such failure continues the LCCCA to meet its obligations under the LCCCA Bond Documents.
7.2 An “Event of Default”, for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision purposes of this Lease Agreement, shall occur by any party hereunder if that party fails to be observed comply with any provision or performed by Tenant where such failure continues for thirty requirement contained or referenced in this Agreement or the Recognition Agreements (30) days after written notice thereof from Landlordas amended); provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed occur hereunder unless written notice shall have been given to exist under all parties to this Lease Agreement and ten (10) days shall have elapsed after receipt of such notice without the cure thereof, provided, however, that if such default is not reasonably capable of being cured within such ten (10) day period and if the defaulting party shall have commenced to cure same, no default shall occur so long as Tenant is paying such defaulting party continuously and diligently pursues the Rent required cure thereof to be paid hereunder; andcompletion, but in no event to exceed sixty (60) days.
(e) Any other event herein specified to be 7.3 Upon the occurrence and continuation of an Event of Default under this Lease.
25.2 In Agreement, any or all of the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord non-defaulting parties shall have the right to immediately terminate bring an action for specific performance of this Lease and Agreement, all parties hereto agreeing that monetary damages are not sufficient to make the other parties whole for a default under this Agreement.
7.4 The parties hereto waive all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Leaseclaim or assert consequential, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination special and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord punitive damages in connection with such reletting;this Agreement.
(c7.5 In any proceeding arising under this Agreement, the prevailing party(ies) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion recover the costs of such rentals received from such reletting during any monththe proceeding, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon well as ascertained and upon demand, all costs reasonable attorneys’ fees and expenses incurred by Landlord before and at trial, on appeal, in connection with such reletting bankruptcy and in making any post judgment collection, as such alterations and repairs which are not covered post judgment costs may be awarded by the rentals received from such relettingcourt.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Collaboration Agreement
Default and Remedies. 25.1 The occurrence of If any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenantoccur:
(a) Any failure by Tenant fails, for any reason, to pay make any payment of Rent as and when the same is due any of the Rent required to be paid by Tenant hereunder where and such failure default continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant given to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) Tenant fails, for any reason, to observe or perform any obligation of Tenant pursuant to this Lease other than the payment of any Rent, and such default continues for fifteen (15) days, or such shorter period as expressly provided herein, after notice thereof to Tenant, provided that if the default could not, in the reasonable opinion of Landlord, be remedied within fifteen (15) days after notice and provided Tenant has commenced to remedy such failure not later than five (5) days after notice and proceeds thereafter to diligently and continuously remedy it, the number of days shall be extended to that number of days which would in the opinion of Landlord, acting reasonably, then suffice for the remedying of such default;
(c) Tenant shall purport to make a Transfer affecting the Premises, or the Premises shall be used by any person or for any purpose, other than in compliance with this Lease;
(d) Tenant or any other occupant of the Premises makes an assignment for the benefit of creditors or becomes bankrupt or insolvent or takes the benefit of any statute for bankrupt or insolvent debtors or makes any proposal or arrangement with creditors, or Tenant makes any sale in bulk of any property on the Premises (other than in conjunction with a Transfer approved in writing by Landlord and made pursuant to all costs applicable legislation), or steps are taken for the winding up or other termination of Tenant’s existence or liquidation of its assets;
(e) a trustee, receiver, receiver-manager, or similar person is appointed in respect of the assets or business of Tenant or any other occupant of the Premises;
(f) Tenant attempts to or does abandon the Premises or remove or dispose of any goods from the Premises, so that there would not be sufficient goods on the Premises subject to distress to satisfy all arrears of Rent and all Rent payable hereunder for a further period of at least six (6) months, or if the Premises are vacant or unoccupied for a period of five (5) consecutive days or more without the prior written consent of Landlord;
(g) this Lease or any other property of Tenant is at any time seized or taken in execution which remains unsatisfied for a period of five (5) days or more;
(h) termination or re-entry by Landlord is permitted under any provision of this Lease or at law; then the then current and the next three (3) months’ Rent shall be forthwith due and payable and, in addition to any other rights or remedies to which Xxxxxxxx is entitled hereunder or at law, Landlord shall have the following rights and remedies, which are cumulative and not alternative, namely:
(i) to terminate this Lease in respect of the whole or any part of the Premises by written notice to Xxxxxx;
(ii) as agent of Tenant to relet the Premises and take possession of any furniture, fixtures, equipment or other property thereon and, upon giving notice to Tenant, to store the same at the expense and risk of Tenant or sell or otherwise dispose of the same at public or private sale without further notice, and to make alterations to the Premises to facilitate their reletting and to apply the net proceeds of the sale of any furniture, fixtures, equipment, or other property or from the reletting of the Premises, less all expenses incurred by Landlord in connection with such reletting;
(c) to making the payment Premises ready for reletting and in reletting the Premises, on account of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent Rent due and unpaid hereunder to become due under this Lease and the residue, if any, Tenant shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency liable to Landlord forthwith upon demand, for any deficiency and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, for all costs and such expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises as aforesaid; nothing done by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention termination is given by Landlord to Tenant;
(iii) to remedy any default of Tenant in performing any repairs, work or other obligations of Tenant hereunder, and in so doing to enter upon the Premises, without any liability to Tenant therefor and without constituting a re-entry of the Premises or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose Lease or breach of collecting any rental due from Tenant or enforcing any other Landlord’s covenant of this Leasequiet enjoyment, and, in such case, Tenant shall pay the to Landlord forthwith upon demand all reasonable fees costs of Landlord in remedying or attempting to remedy any such default plus fifteen (15%) percent of such attorney amounts and charges for his services regardless inspection and supervision; and
(iv) to obtain damages from Tenant including, without limitation, if this Lease is terminated, all deficiencies between all amounts which would have been payable by Tenant for what would have been the balance of the fact that no legal proceeding or action may have been filed or commencedTerm, but for such termination, and all net amounts actually received by Landlord for such period.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Default and Remedies. 25.1 The occurrence of If Lessee shall default in making any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay payment when due or if Lessee fails to comply with any other provision of the Rent required to be paid by Tenant hereunder where this rental/lease agreement and such failure continues default shall continue for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; providedto Lessee by Lessor, that or if Lessee becomes insolvent or makes an assignment for the benefit of creditors, or if any proceeding in bankruptcy, receivership, or insolvency shall be commenced by or against Lessee or its property, or if Lessee shall have made or intends to make a bulk transfer of Equipment or inventory, or if the nature of such default Lessee's financial condition shall adversely change, or if the Lessee shall undergo any change so that in the Lessor's sole opinion Lessor’s risk is such that the same cannot with due diligence be cured within said periodmaterially increased, Tenant shall not be deemed to be in default or if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under Lessee has breached any other rental/lease agreement between Landlord Lessor and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this LeaseLessee, then it Lessor may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the rightoption, with or without terminating this Leaserental/lease agreement, repossess the Equipment with or without demand or notice to re-enter the Premises and remove all property and persons therefromLessee, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by lawwithout court proceeding, and if Landlord has not elected Lessee waives any and all claims against Lessor with respect to terminate this Leasesuch retaking. Upon Lessee's default, Landlord may continue this Lease the total payments contracted for hereunder shall immediately become due and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of payable together with all costs and expenses incurred by Landlord set forth in connection with such reletting;
(c) Paragraphs 14 & 15. In addition to the foregoing, Lessor may pursue any other remedy available to it at law or in equity. LATE CHARGES AND INTEREST: If Lessee fails to make any payment of required by this rental/lease agreement when due, Lessee shall pay to Lessor interest on such delinquent payment from the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, date until paid. The interest rate shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful contract rate allowable in the jurisdiction where the Lessee’s principal place of business is located but will not exceed eighteen percent (18%) per annum from the due date and until payment thereofannum.
Appears in 1 contract
Samples: Master Rental/Lease Agreement
Default and Remedies. 25.1 The occurrence If Lessee defaults in the payment of any sum of the following shall constitute an "EVENT OF DEFAULT" money to be paid under this Lease by Tenant:
and such default continues for a period of ten (a10) Any failure by Tenant days after written notice to pay when due Lessee of such default or if Lessee fails to perform any of the Rent covenant or condition required to be paid performed by Tenant hereunder where such Lessee, which failure continues for five shall not be remedied within ten (510) business days after Tenant's receipt notice thereof by Lessor to Lessee or if Lessee shall dissolve, make or commit any act of written notice that the bankruptcy or if any proceeding under any bankruptcy or insolvency statute or any laws relating to relief of debtors is commenced by Lessee or if any such proceeding is commenced against Lessee and same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for shall not have been removed within thirty (30) days after written notice of the date of the filing thereof from Landlord; providedor if a receiver, that trustee or liquidator is appointed for Lessee or for all or a substantial part of Lessee’s assets with Lessee’s consent or, if the nature of such default is such that without Lessee’s consent, the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall have been removed within said period commence such during and thereafter diligently prosecutes the same to completion;
thirty (c30) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation days of the Premisesdate of the appointment thereof or if an order, provided that judgment or decree is entered by a court of competent jurisdiction and continues unpaid and in effect for any period of thirty (30) consecutive days without a stay of execution or if Tenant has vacated the Premises a writ of attachment or execution is levied on any car and is actively seeking a subtenant not discharged within ten (10) days thereafter, Lessor may exercise one or assignee, no default shall be deemed more of the following remedies with respect to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; andcars:
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately 1. Immediately terminate this Lease and all Lessee’s rights hereunder;
2. Require Lessee to return the cars to Lessor at Lessee’s expense, and if Lessee fails to so comply, Lessor may take possession of Tenant hereunder such cars without demand or notice and without court order or legal process. Lessee hereby waives any damages occasioned by giving written notice to Tenant such taking of its election to do so. If Landlord shall elect to terminate this Leasepossession, then it may recover from Tenant:
(a) The worth whether or not Lessee was in default at the time possession was taken, so long as Lessor reasonably believes that Lessee was in default at such time. Lessee acknowledges that it may have a right to notice of possession and the award taking of possession with a court order or other legal process. Lessee, however, knowingly waives any right to such notice of possession and the unpaid rent payable hereunder which had been earned at the date taking of such termination; pluspossession without court order or legal process;
(b) The worth 3. Lease the cars to such persons, at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefromrental, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon period of time as Lessor shall elect. Lessor shall apply the proceeds from such provisions as Landlordleasing, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of less all costs and expenses incurred by Landlord in connection with the recovery, repair, storage and renting of such reletting;
(c) to cars, toward the payment of the cost of Lessee’s obligations hereunder. Lessee shall remain liable for any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residuedeficiency, if anywhich, at Lessor’s option, shall be held by Landlord paid monthly as suffered or immediately, or at the end of the Lease term as damages for Lessee’s default;
4. Bring legal action to recover all rent or other amounts then accrued or thereafter accruing from Lessee to Lessor under any provision hereunder;
5. Pursue any other remedy which Lessor may have. Each remedy is cumulative and applied in payment of future rent as the same may become due and payable hereunderbe enforced separately or concurrently. In no the event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any monthdefault, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant Lessee shall pay such deficiency to Landlord forthwith Lessor upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, demand all costs and expenses incurred expenses, including reasonable attorneys’ fee expended by Landlord Lessor in connection with such reletting the enforcement of its rights and in making any such alterations remedies hereunder, and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant Lessee shall pay interest on any amount owing to Lessor from the reasonable fees of time such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums amount becomes due and payable hereunder by Tenant shall bear interest at the maximum lawful a rate per annum from equal to three percentage points above the due date prime rate of Chase Manhattan Bank (or its successor), such rate to be reduced, however, to the extent it exceeds the maximum rate permitted by applicable law. In addition, Lessee shall, without expense to Lessor, assist Lessor in repossessing the cars and until payment thereofshall, for a reasonable time, if required, furnish suitable trackage space for the storage of the cars. If Lessee fails to perform any of its obligations hereunder, Lessor, at Lessee’s expense, and without waiving any rights it may have against Lessee for such nonperformance, may itself render such performance. Lessee shall reimburse Lessor on demand for all sums so paid by Lessor on Lessee’s behalf, together with interest at a rate equal to three percentage points above the prime rate of Chase Manhattan Bank (or its successor), such rate to be reduced, however, to the extent it exceeds the maximum rate permitted by applicable law.
Appears in 1 contract
Samples: Railroad Car Lease Agreement (Otter Tail Ag Enterprises, LLC)
Default and Remedies. 25.1 The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any A. Failure to Pay Rent Tenants failure by Tenant to pay when due rent, or any of the Rent other sum required to be paid by Tenant hereunder where such hereunder, when due, and after expiration of any applicable cure period, shall constitute a default by Tenant under this Lease.
B. Performance of Covenants Other than Tenant's failure continues for five to pay any rental payment when due, if Tenant shall fail to make any other payment within thirty (530) business days after Tenant's receipt of a written notice that the same is overdue;
(b) A failure by Tenant to observe and from Landlord specifying such default or perform any other provision of Tenant's obligations under this Lease Lease, or if such default is of a nature to be observed or performed by Tenant where such failure continues for require more than thirty (30) days after written notice thereof from Landlordfor to cure and Tenant has initiated procedures to cure the default within such thirty (30) day period and diligently pursues such efforts to cure to completion, Tenant shall be allowed such additional time, not to exceed sixty (60) days, to cure any such default; provided, that if notwithstanding the nature of such default is such that the same cannot with due diligence be cured within said periodforegoing, Tenant shall not be deemed allowed any grace period to be in cure a default if it shall within said which creates an imminent danger to the public or to the safety and integrity of the Leased Premises. Landlord may, after expiration of any applicable cure period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by provided herein, without waiving or releasing Tenant from any obligations of Tenant under any other lease between this Lease, cure the default, in such a manner and to such extent as Landlord deems reasonable. All sums so paid by Landlord and Tenant for other premises all necessary costs and expenses in connection with the Center;
(d) The abandonment or vacation performance of the Premisesany such obligation by Landlord, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to additional rent hereunder and shall be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available payable to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
within ten (a10) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned days after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver receipt of Landlord's right to recover damages by reason statement of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Leaseaccount thereon.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Default and Remedies. 25.1 The occurrence (a) Tenant covenants and agrees to pay the Basic Rent, together with all other sums of any of money which under the following shall constitute an "EVENT OF DEFAULT" provisions hereof may be considered as additional rent, at the times and in the manner hereinabove set forth, and to pay other sums that may be due Landlord under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;promptly upon their becoming due.
(b) A failure Subject to the notice and cure period set forth in Section 15(c) below, if the Basic Rent or additional rent agreed to be paid, including all other sums of money which under the provisions hereof may be considered as additional rent, or other sums due to Landlord shall not be paid when due, Landlord may exercise any and all available remedies to the full extent allowed by law. If said rent, including all such other sums, shall not be paid when due, Landlord may at its option declare the tenancy hereunder terminated, and/or forthwith be entitled to the benefit of any public general or public local laws, now or hereafter enacted, relating to the speedy recovery of possession of lands and tenements held over by tenants.
(c) If Tenant shall fail to observe and perform pay any installment of Basic Rent, additional rent, or any other provision sums due to Landlord within ten (10) days of this written notice from Landlord, violate any other covenant or agreement made by it in the Lease and fail to be observed or performed by Tenant where cure such failure continues for violation within thirty (30) days after written notice thereof from Landlord; provided, that Landlord (but if the nature of such default is such that the same Tenant cannot with due diligence be cured cure and such non-monetary default within such grace period, and as long as Tenant has commenced efforts to cure within such grace period and is diligently pursuing said periodcure, Tenant shall have a reasonable time to cure said default before being in default, not be deemed to be exceed a total of ninety (90) days from the date of Landlord's notice, hereunder, or if Tenant shall abandon, vacate, or cease to operate said Premises for a continuous period of more than thirty (30) days, then in default if it shall within any of said period commence such during events, Landlord may, at its option, reenter and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation resume possession of the Premises, provided that and declare this Lease, and the tenancy hereby created, terminated, and thereupon remove all persons and property from the Premises, but not with process of
(i) If Tenant shall generally not pay its debts as they become due or shall admit in writing its inability to pay its debts, or shall make a general assignment for the benefit of creditors, or (ii) if Tenant has vacated shall commence any case, proceeding or other action seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, or (iii) if Tenant shall take any corporate action to authorize any of the actions set forth in subparagraphs (i) or (ii) above, or (iv) if any case, proceeding or other action against Tenant shall be commenced seeking to have an order for relief entered against it as debtor, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, and such case, proceeding or other action (a) results in the entry of an order for relief against it which is not fully stayed within fifteen (15) days after the entry thereof, or (b) remains undismissed for a period of, fifteen (15) days, or (v) if any execution, attachment or mechanics' lien against Tenant or the Premises and is actively seeking a subtenant be unsatisfied or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying unsecured by adequate corporate surety bond or cash security (the Rent required election of the surety bond or cash to be paid hereunder; andin the sole but reasonable discretion of Landlord) for more than ten (10) days, Landlord, may at its option, in any of such events, terminate the Lease, retaining all rights against Tenant, and its receiver, trustee, custodian or similar official permitted, under subparagraphs (c) and (d).
(e) Any other event herein specified Notwithstanding the provisions in subparagraph (d) above, to be an Event of Default under this Lease.
25.2 In the extent permitted by applicable federal or state law, in the event of an assignment by operation of law under the federal Bankruptcy Code, or any Event of Default by Tenant as aforesaid, in addition to any state bankruptcy or insolvency law and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect elects not to terminate this the Lease, then it may recover from Tenant:
(a) The worth at the time assignee shall provide Landlord with adequate assurance of future performance of all of the award terms, conditions and covenants of the unpaid rent payable hereunder Lease, which had been earned at shall include, but which shall not be limited to, assumption of all the date of such termination; plus
(b) The worth at the time terms, covenants and conditions of the award Lease by the assignee and the making by the assignee of the amount by which following express covenants to Landlord: (i) that assignee has sufficient capital to pay the unpaid Basic Rent, additional rent which would have been earned after termination and until other charges due under the time Lease for the entire Term; (ii) that assumption of the award exceeds Lease by the amount assignee will not cause Landlord to be in violation or breach of any provision in any other lease, financing agreement or operating agreement relating to the Building; and (iii) that such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at assignment and assumption by the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder assignee will not substantially disrupt or which, materially impair any existing tenant mix in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to timeBuilding.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Lease Agreement (Nfo Worldwide Inc)
Default and Remedies. 25.1 The occurrence a) In the event of default by Purchaser under this Agreement, and provided Seller is not in default hereunder, then Seller may elect to declare forfeiture and obtain the entire Xxxxxxx Money as liquidated damages, in full termination of this Agreement, and the parties shall have no further liability or obligation under this Agreement, except for the obligations which expressly survive termination. Seller and Purchaser acknowledge and agree that the Xxxxxxx Money is a reasonable estimate of any damages that it may have suffered as a result of Purchaser’s default. SELLER AND PURCHASER AGREE THAT PAYMENT OF THE XXXXXXX MONEY TO SELLER UNDER THIS SECTION 5 SHALL BE AS LIQUIDATED DAMAGES AND NOT AS A PENALTY.
b) If Seller breaches any of its covenants, agreements, representations or warranties contained in this Agreement, or if said representations and warranties are not true and correct on the date hereof and on the Closing Date, or if Seller fails to perform any affirmative obligation or consummate the sale contemplated herein for any reason, then provided that Purchaser is not in default hereunder and provided further that Purchaser has given Seller ten (10) days’ written notice specifying the exact nature of such breach or failure, and if such breach or failure has not been cured within the earlier of ten (10) days after the date such notice was delivered and the Closing Date, Purchaser may elect either (1) the immediate refund of the following entire Xxxxxxx Money and full termination of this Agreement, and the parties shall constitute an "EVENT OF DEFAULT" have no further liability or obligation under this Lease by Tenant:
Agreement, except that Purchaser shall remain obligated pursuant to the provisions hereof which survive termination, or (2) sue for specific performance of this Agreement, provided that such specific performance remedy shall be available to Purchaser only upon (a) Any failure by Tenant Purchaser's full satisfaction of each of Purchaser's obligations under this Agreement, including without limitation Purchaser's obligation to pay when due any of deliver the Rent required Xxxxxxx Money to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice the Escrow Agent and delivering sufficient proof to the Title Company and Seller that the same Purchaser is overdue;
ready, willing and able to close this transaction, and (b) A failure by Tenant to observe and perform any other provision Purchaser commences its action of this Lease to be observed or performed by Tenant where such failure continues for specific performance against Seller within thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunderClosing Date. In no event shall Tenant be entitled Purchaser have the right to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion seek consequential damages, lost profit, or other monetary damages as a result of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord Seller’s default under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such defaultAgreement.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Sale and Purchase Agreement
Default and Remedies. 25.1 The occurrence of any A. If the Closing does not occur due to Acquiror's default hereunder, or the breach of the following shall constitute an "EVENT OF DEFAULT" under representations, warranties, covenants or other terms of this Lease by Tenant:
Agreement, and such default or breach is not cured or remedied within ten (a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (510) business days after Tenantreceipt of written notice thereof given by Contributor to Acquiror, or otherwise waived by Contributor, Contributor may terminate this Agreement and, as its sole remedy, receive the Xxxxxxx Money from the Escrowee, as liquidated damages, in which event this Agreement shall be deemed null and void and the parties shall be released from all further obligations and liabilities under this Agreement, except with respect to the indemnity set forth in Section 15B. It is recognized by Contributor and Acquiror that the damages Contributor will sustain by reason of Acquiror's default, breach or failure will be substantial, but difficult, if not impossible, to ascertain. The Xxxxxxx Money has been determined by the parties as a reasonable sum for damages and is intended not as a penalty, but as full liquidated damages.
B. If, prior to the Closing, Contributor is in default with respect to, or breaches, or fails to perform one or more of the representations, covenants, warranties or other terms of this Agreement, and such default, breach or failure is not cured or remedied within ten (10) business days after receipt of written notice thereof given by Acquiror to Contributor, or otherwise waived by Acquiror, Acquiror as its sole remedy may either (a) terminate this Agreement, in which event the Xxxxxxx Money shall be returned by the Escrowee to Acquiror and Contributor shall reimburse Acquiror for its reasonable out-of-pocket expenses incurred by Acquiror (not to exceed $50,000 in the aggregate) pursuant to this Agreement and, upon such return and reimbursement, the parties shall be released from all further obligations and liabilities under this Agreement, except with respect to the Surviving Indemnities, or (b) xxx for specific performance (except in such case where such default, breach or failure to perform is the result of the good faith failure despite best efforts by Contributor to obtain the consent of Manufacturers, Traders & Trust Company and Xxxxxx & Xxxxxx, Inc.). In the event Acquiror elects the remedy set forth in (a) above, Contributor shall reimburse Acquiror for such expenses within fifteen (15) days after Contributor's receipt of written notice that the same is overdue;
(b) A failure from Acquiror accompanied by Tenant to observe and perform any other provision copies of this Lease to be observed invoices detailing such expenses or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to timedocumentation that reasonably substantiates such expenses.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Contribution Agreement (American Real Estate Investment Corp)
Default and Remedies. 25.1 The occurrence If Tenant shall default in the payment of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any installment of the Rent or in the payment of any other sum required to be paid by Tenant hereunder where under this Lease and such failure continues default shall continue for five (5) business days after Tenant's receipt of written notice to Tenant that such payment is past due (provided that such notice need be given only once in any twelve (12) month period during the same Term), or if Tenant shall default in the observance or performance of any of the other covenants or conditions in this Lease which Tenant is overdue;
(b) A failure by Tenant required to observe or perform and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues default shall continue for thirty (30) days after written notice thereof from Landlord; provided, that if to Tenant (or such longer period of time as may be reasonably required to effectuate the nature of cure provided Tenant has commenced the cure within such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said 30 day period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default ), or if the interest of Tenant in this Lease shall be levied upon under execution or other legal process, or if any voluntary petition in bankruptcy or for corporate reorganization or any similar relief shall be filed by Tenant, or if any involuntary petition in bankruptcy shall be filed against Tenant under any federal or state bankruptcy or insolvency act and shall not have been dismissed within ninety (90) days following the filing thereof, or if a receiver shall be appointed for Tenant or any of the property of Tenant by any court and such receiver shall not be dismissed within ninety (90) days from the date of appointment, or within three (3) years following the Commencement Date the Premises are abandoned or vacant (for a period of more than 90 days) for a cause other lease between than a casualty, or if Tenant shall make an assignment for the benefit of creditors, then Landlord may treat the occurrence of any one or more of the foregoing events as a breach of this Lease and thereupon at its option may, without notice or demand of any kind to Tenant for or any other premises person, exercise one or more of the following described remedies, in the Center;addition to all other rights and remedies provided at law or in equity:
(da) The abandonment or vacation of the PremisesLandlord may terminate this Lease, provided that if Tenant has vacated in which event Landlord may immediately repossess the Premises and is actively seeking a subtenant or assignee, no default shall be deemed entitled to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaidrecover, in addition to any other sums or damages for which Tenant may be liable to Landlord, as damages, an amount, if any, equal to the Rent which would have been payable during any period of rent-free occupancy provided to Tenant by this Lease, the cost of all leasing commissions paid by Landlord in connection with this Lease, the cost to Landlord of the initial leasehold improvements to the Premises, and all other remedies available amounts paid to Landlord at law or on behalf of Tenant in equity, Landlord shall have the right to immediately terminate connection with Tenant's entry into this Lease and occupancy of the Premises (including without limitation any moving cost allowance, payments on lease(s) assumed by Landlord, payment for preparation of floor plans and the like), including Landlord's interest expense thereon, all rights of Tenant hereunder by giving written notice to Tenant which amounts shall be amortized over the term of its election to do so. If Landlord shall elect to terminate this the Lease, then it may recover from Tenant:
(a) The worth and Tenant shall only be responsible for the portion which has not yet amortized at the time of termination, together with a sum of money equal to the award excess of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount Rent provided to be paid by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after Term over the time fair market rental value of the award exceeds Premises, after deduction of all reasonably anticipated expenses of reletting for said period. Should the amount fair market rental value of the Premises after deduction of all anticipated expenses of reletting for the balance of the then existing Term exceed the Rent to be paid by Tenant for the balance of the Term, Landlord shall have no obligation to pay to Tenant the excess or any part thereof or to credit such rental loss excess or any part thereof against any other sums or damages for which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time liable to timeLandlord.
25.3 As used in subparagraphs (a) and (b) aboveLandlord may terminate Tenant's right of possession and may repossess the Premises by forcible entry (to the extent permitted by law) or unlawful detainer suit, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) abovetaking peaceful possession, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or otherwise without terminating this Lease, in which event Landlord shall exercise its reasonable efforts to re-enter relet the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and same for the account of Tenant, all in accordance with all Legal Requirements.
25.5 for such rent and upon such terms as shall be reasonably satisfactory to Landlord. For the purpose of such reletting, Landlord is authorized to decorate, repair, remodel or alter the Premises. If Landlord (in accordance with California Civil Code Section 1951.4) shall elect fail to re-enter as above provided or relet the Premises, Tenant shall take possession pay to Landlord a sum equal to the amount of the Rent due for each month as the same becomes due and payable for the balance of the Term. If the Premises pursuant to legal proceedings or pursuant to are relet and a sufficient sum shall not be realized from such reletting after payment of the reasonable costs and expenses of all decoration, repairs, remodeling, alterations and additions and the expenses of such reletting (including broker's fees) (provided, however, that such costs and expenses shall be amortized over the term of any notice provided by lawnew lease of the Premises, and if Landlord has not elected Tenant shall only be responsible for the portion amortizing during the remainder of the Lease Term) to terminate this Lease, Landlord may continue satisfy the Rent provided for in this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received amounts recoverable by Landlord therefrom shall be applied as follows:
from Tenant pursuant to subparagraph (a) of this paragraph, Tenant shall satisfy and pay the same upon demand therefor from time to time. Landlord may file suit to recover any sums falling due from time to time and no suit or recovery of any portion due Landlord hereunder shall be any defense to any subsequent action brought for any amount not previously reduced to judgment in favor of Landlord. Landlord shall use reasonable efforts to mitigate its damages upon a default by Tenant. No waiver of any default by Tenant shall be implied from any omission by Landlord to take any action on account of said default if such default persists or shall be repeated, and no express waiver shall affect any default other than the default specified in the express waiver and then only for the time and to the payment extent therein stated. No failure of Landlord to exercise any indebtedness of Tenant power given Landlord hereunder or to Landlord other than rent due insist upon strict compliance with any obligation hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment no custom or practice of the cost of any alterations of and repairs to parties at variance with the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article terms hereof shall constitute a waiver of Landlord's right to recover damages by reason demand exact compliance with the terms hereof. The provisions of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor this section shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a survive any termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Office Lease (Stereotaxis, Inc.)
Default and Remedies. 25.1 The occurrence of any of the following shall constitute an "EVENT OF DEFAULT" 8.1 If a Party fails to comply with its obligations under this Lease ICA, including the Application Form and the Subsidy Rules, this will be considered a breach.
8.2 In the event that the Management Board identifies a breach by Tenant:
(a) Any failure by Tenant to pay when due any of a Party, the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of Coordinator will give written notice to such Party, requiring that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to breach be observed or performed by Tenant where such failure continues for remedied within thirty (30) days after written notice thereof from Landlord; provided, that if calendar days.
8.3 If such breach is substantial and is not remedied within the nature of such default is such that the same cannot with due diligence be cured within said abovementioned period, Tenant shall or is not be deemed capable of remedy, the Management Board may decide to declare the Party to be in default if it shall within said period commence such during a Default- ing Party and thereafter diligently prosecutes to decide on the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises consequences thereof, which consequences will not infringe the Subsidy Rules, which may include a decrease or full termination of the Defaulting Party’s participation in the Center;
(d) ICA. The abandonment or vacation of Coordinator is entitled to withhold any payments due to the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this LeaseDefaulting Party.
25.2 In 8.4 Save otherwise agreed between the event of any Event of Default by Tenant as aforesaidManagement Board and the Defaulting Party, the fol- lowing shall apply in addition case the Management Board decides to decrease or fully terminate the Defaulting Party’s participation:
i) any and all Access Rights granted to the Defaulting Party by the other remedies available to Landlord at law or in equityParties under this ICA shall cease immediately, Landlord shall have the right to immediately terminate this Lease while any and all rights of Tenant hereunder Access Rights granted by giving written notice the Defaulting Party to Tenant of its election to do so. If Landlord the other Parties under this ICA shall elect to terminate this Lease, then it may recover from Tenant:remain in full force and effect;
(aii) The worth at the time part of the award work under the Project remaining to be performed by the Defaulting Party, and other rights and obligations under the ICA, may be assigned or redis- tributed, by decision of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time Management Board, to one or more of the award Parties;
iii) the Defaulting Party shall, within the limits of article 9, subsection 2, of this ICA: - assume all reasonable direct cost increase (if any) resulting form the assign- ment referred to in ii) above in comparison with the costs of the amount work to be performed by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, Defaulting Party as specified in the ordinary course of affairs, would likely result therefromApplication Form; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may - be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and liable for any such property may be removed and stored in a public warehouse or elsewhere at the so resulting additional direct cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord the other Parties; - sign a non-disclosure agreement with a duration of ten (10) years in connection with such reletting;
(c) order to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for protect the purpose of collecting any rental due from Tenant this ICA.
8.5 If a Party commits a breach and this leads to the diminution or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless reclamation of the fact financial contribution by the NAME, that no legal proceeding or action may have been filed or commencedParty will bear the financial consequences thereof. If any of the other Parties suffer damages as a consequence of the breach, the defaulting Party will be liable for these damages.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Intra Consortium Agreement
Default and Remedies. 25.1 The occurrence of any A. Each of the following shall constitute be deemed an event of default by Debtor (each, an "EVENT OF DEFAULT" under this Lease by Tenant:Event of Default"):
(a1) Any failure by Tenant to pay when due If any representation or warranty of Debtor set forth in any of the Rent required to be Loan Documents is false and such falsity would result in a Material Adverse Effect in any material respect, or if Debtor renders any false statement or account in any material respect.
(2) If any principal, interest or other monetary sum due under the Notes, the Mortgages or any other Loan Document is not paid by Tenant hereunder where such failure continues for within five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlorddate when due; provided, that if however, notwithstanding the nature occurrence of such default is such that the same cannot with due diligence be cured within said periodan Event of Default, Tenant FFCA shall not be deemed entitled to be in default if it exercise its rights and remedies set forth below unless and until FFCA shall within said have given Debtor notice thereof and a period commence of five days from the delivery of such during and thereafter diligently prosecutes the same to completion;notice shall have elapsed without such Event of Default being cured.
(c3) Any default by Tenant under If Debtor fails to observe or perform any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premisesother covenants (except with respect to a breach of the CFCCR requirements, provided that conditions, or obligations of this Agreement; provided, however, if Tenant has vacated any such failure does not involve the Premises payment of any monetary sum, is not willful or intentional, does not place any rights or property of FFCA in immediate jeopardy, and is actively seeking within the reasonable power of Debtor to promptly cure after receipt of notice thereof, all as determined by FFCA in its reasonable discretion, then such failure shall not constitute an Event of Default hereunder, unless otherwise expressly provided herein, unless and until FFCA shall have given Debtor notice thereof and a subtenant period of 30 days shall have elapsed, during which period Debtor may correct or assigneecure such failure, no default upon failure of which an Event of Default shall be deemed to exist under this Lease so long have occurred hereunder without further notice or demand of any kind being required. If such failure cannot reasonably be cured within such 30-day period, as Tenant determined by FFCA in its reasonable discretion, and Debtor is paying diligently pursuing a cure of such failure, then Debtor shall have a reasonable period to cure such failure beyond such 30-day period, which shall not exceed 90 days after receiving notice of the Rent required failure from FFCA. If Debtor shall fail to be paid hereunder; and
(e) Any other event herein specified to be correct or cure such failure within such 90-day period, an Event of Default under this Lease.
25.2 In the event shall be deemed to have occurred hereunder without further notice or demand of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to timekind being required.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Default and Remedies. 25.1 The occurrence Continuation of Lease in Effect
Section 12.01. Should District breach this lease and abandon the Premises before the natural expiration of the lease’s term, City may continue this lease in effect by not terminating District’s right to possession of the Premises, in which event City shall be entitled to enforce all of City’s rights and remedies under this lease, including the right to recover the rent specified in this lease as it becomes due under this lease. Termination and Unlawful Detainer
Section 12.02. In the event of a default by District which remains uncured by the end of any of the following shall constitute an "EVENT OF DEFAULT" under and all applicable cure periods, City may terminate this Lease lease by Tenant:
(a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of providing one year’s written notice that to the same is overdue;District and/or utilize any or all legal options available to City. Breach and Default by District
(b) A failure by Tenant Section 12.03. All covenants and agreements contained in this lease are declared conditions to observe this lease and to the term hereby lease to District. Should District fail to perform any other provision of covenant, condition or agreement contained in this Lease to be observed or performed by Tenant where such failure continues for lease and the default is not cured within thirty (30) days days, unless this lease specifies a longer cure period, after written notice thereof from Landlord; providedof default is served on District by City, that then District shall be in default under this lease. Notwithstanding the foregoing, if the nature of such the default is such that the same it cannot with due diligence reasonably be cured within said period30 days, Tenant the District shall not be deemed to be in default if it shall commences the cure within said that 30- day period commence such during and thereafter diligently prosecutes proceeds to implement the same cure until complete. In addition to completion;
(c) Any District’s failure to perform any covenant, condition, or agreement contained in this lease within the cure period permitted by this section, the following shall constitute a default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist District under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenantlease:
(a) The worth at the time appointment of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary a receiver to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by lawImprovements, or of District’s interest in, to, and if Landlord has not elected to terminate under this Leaselease, Landlord may continue this Lease and may either recover all rental as it becomes due the leasehold estate, or relet of District’s operations on the Premises for any reason, including, without limitation, assignment for benefit of creditors or any part voluntarily or parts thereof involuntary bankruptcy proceedings, when not released within ninety (90) days.
b) An assignment by District for such term the benefit of creditors; or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations voluntarily filing by District of the Premises.
25.6 If Landlord shall elect involuntary filing against District of a petition, other than court action, or suit under any law for any purpose of (1) adjudicating District a bankrupt; (2) extending time for payment, (3) satisfaction of District’s liabilities, or (4) reorganization, dissolution, or arrangement on account of, or to relet as aforesaidprevent, bankruptcy or insolvency; provided, however, that in the case of an involuntary proceeding, if all consequent orders, adjudications, custodies, and supervisions are dismissed, vacated or otherwise permanently stayed or terminated within ninety (90) days after the filing or other initial event, then rentals received by Landlord therefrom District shall not be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premisesdefault under this Section; and
(dc) The subjection of any right or interest of District to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election lease to terminate this Lease unless a written notice of such intention attachment, execution, or other levy, or to seizure under legal process when the claim against District is not released within ninety (90) days. Cumulative Remedies
Section 11.04. The remedied given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained City in this Article shall not be exclusive but shall be cumulative with and in addition to all remedies now or hereafter allowed by law and elsewhere provided in this lease. Waiver of Breach
Section 11.05. The waiver by City of any breach by District of any of the provisions of this lease shall not constitute a continuing waiver or a waiver of Landlord's right to recover damages any subsequent breach by reason District of Landlord's efforts to mitigate either the damages to it caused by Tenant's default; nor shall anything in same or a different provision of this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury lease. Surrender of Premises
Section 11.06. On expiration or damage to persons or property occurring prior to a earlier termination of this Leaselease, District shall surrender the Premises and all improvements, including significant improvements in or on the Premises to City in as good, safe, and clean condition as practicable, reasonable wear and tear expected.
25.9 Subject only Section 11.07. should the City fail to Article 31perform any covenant, condition or agreement contained in this lease and the default is not cured within thirty (30) days, unless this lease specifies a longer cure period, after written notice of default is served on the City by the District, then the City shall be in default under this lease. Notwithstanding the foregoing, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless nature of the fact default is such that no legal proceeding or action may have been filed or commencedit cannot reasonably be cured within 30 days, the City shall not be in default if it commences the cure within that 30-day period and thereafter diligently proceeds to implement the cure until complete.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Ground Lease
Default and Remedies. 25.1 The occurrence of any A. Each of the following shall constitute be deemed an event of default by Debtor (each, an "EVENT OF DEFAULT" under this Lease by Tenant:Event of Default"):
(a1) Any failure by Tenant to pay when due If any representation or warranty of Debtor or any Guarantor set forth in any of the Rent required to be Loan Documents is false in any material respect, or if Debtor or any Guarantor renders any false statement or account.
(2) If any principal, interest or other monetary sum due under the Note or any other Loan Document is not paid by Tenant hereunder where such failure continues for within five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlorddate when due; provided, that if however, notwithstanding the nature occurrence of such default is such that the same cannot with due diligence be cured within said periodan Event of Default, Tenant FFCA shall not be deemed entitled to be in default if it exercise its rights and remedies set forth below unless and until FFCA shall within said have given Debtor notice thereof and a period commence of five days from the delivery of such during and thereafter diligently prosecutes the same to completion;notice shall have elapsed without such Event of Default being cured.
(c3) Any default by Tenant under If Debtor fails to observe or perform any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premisesother covenants, provided that conditions, or obligations of this Agreement or the other Loan Documents (except with respect to a breach of the Corporate Fixed Charge Coverage Ratio, which is addressed in subitem [6] below); provided, however, if Tenant has vacated any such failure does not involve the Premises payment of any monetary sum, is not willful or intentional, does not place any rights or property of FFCA in immediate jeopardy, and is actively seeking within the reasonable power of Debtor to promptly cure after receipt of notice thereof, all as determined by FFCA in its reasonable discretion, then such failure shall not constitute an Event of Default hereunder, unless otherwise expressly provided herein, unless and until FFCA shall have given Debtor notice thereof and a subtenant period of 30 days shall have elapsed, during which period Debtor may correct or assigneecure such failure, no default upon failure of which an Event of Default shall be deemed to exist under this Lease so long have occurred hereunder without further notice or demand of any kind being required. If such failure cannot reasonably be cured within such 30-day period, as Tenant determined by FFCA in its reasonable discretion, and Debtor is paying diligently pursuing a cure of such failure, then Debtor shall have a reasonable period to cure such failure beyond such 30-day period, which shall not exceed 90 days after receiving notice of the Rent required failure from FFCA. If Debtor shall fail to be paid hereunder; and
(e) Any other event herein specified to be correct or cure such failure within such 90-day period, an Event of Default under this Leaseshall be deemed to have occurred hereunder without further notice or demand of any kind being required.
25.2 In (4) If Debtor or any Guarantor becomes insolvent within the event meaning of the Code, files or notifies FFCA that it intends to file a petition under the Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, an "Action"), becomes the subject of either a petition under the Code or an Action, or is not generally paying its debts as the same become due.
(5) If there is an "Event of Default by Tenant as aforesaidDefault" under any other Loan Document or a breach or default, in addition to after the passage of all applicable notice and cure or grace periods, under any of the Other Agreements.
(6) If there is a breach of the Corporate Fixed Charge Coverage Ratio requirement and all other remedies available to Landlord at law or in equity, Landlord FFCA shall have given Debtor notice thereof and Debtor shall have failed within a period of 30 days from the right to immediately terminate this Lease and all rights delivery of Tenant hereunder by giving written such notice to Tenant of its election either (i) pay to do so. If Landlord shall elect FFCA the FCCR Amount (without premium or penalty) as is necessary to terminate this Lease, then it may recover from Tenant:
(a) The worth at cure the time breach of the award Corporate Fixed Charge Coverage Ratio requirement or (ii) prepay the Note in whole but not in part (without premium or penalty). For purposes of the unpaid rent payable hereunder which had been earned at preceding sentence, "FCCR Amount" means that sum of money which, when subtracted from the date of such termination; plus
(b) The worth at the time outstanding principal amount of the award Note, and assuming the resulting principal balance is reamortized in equal monthly payments over the remaining term of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest Note at the rate of twelve (12%) percent per annum (interest set forth therein, will result in an adjusted Corporate Fixed Charge Coverage Ratio of at least 1.25:1 based on the "INTEREST RATE")prior year's operations. As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the Promptly after Debtor's payment of the cost of any alterations of XXXX Xxxxxx, Xxxxxx and repairs FFCA shall execute an amendment to the Premises; and
(d) Note in form and substance reasonably acceptable to FFCA reducing the payment of rent due principal amount payable to FFCA under the Note and unpaid hereunder and reamortizing the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession principal amount of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless Note in equal monthly payments over the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless then remaining term of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest Note at the maximum lawful rate per annum from the due date and until payment thereofof interest set forth therein.
Appears in 1 contract
Samples: Loan Agreement (Easyriders Inc)
Default and Remedies. 25.1 The occurrence An “Event of any of the following Default” by Landlord shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
occur if: (ai) Any failure by Tenant Landlord fails to pay when to Tenant any amounts due any of the Rent required to be paid by Tenant Landlord hereunder where and such failure continues for five (5) business days after Tenant's receipt of written notice that from Tenant, or Landlord shall be in default in the same is overdue;
(b) A failure by Tenant to observe and perform performance of any other provision material covenant or condition of this Lease on the part of Landlord to be observed or performed by Tenant where such failure continues for a period of thirty (30) days after written notice thereof from LandlordTenant of such default; provided, that however, if the nature of such the default is such that the same it cannot with due diligence be cured practicably within said periodthirty (30) days, but Landlord commences the curing within thirty (30) days after notice from Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in curing, then the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default cure period shall be deemed to exist under this Lease so long as Tenant is paying extended for the Rent amount of time practicably required to be paid hereunder; and
(e) Any other event herein specified to be effect the cure. If an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaidLandlord shall occur, then, in addition to any and all other remedies available to Landlord Tenant at law law, in equity or pursuant to the terms hereof, Tenant may at its option incur the expense necessary to perform said obligation of Landlord. If Tenant shall incur any expense, including reasonable attorneys’ fees, in equityinstituting, prosecuting or defending any action or proceedings instituted by reason of any Event of Default by Landlord, then Landlord shall have the right to immediately terminate this Lease and all rights of reimburse Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds for the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth expense, with interest thereon at the time of the award of the amount by which the unpaid rent for the balance of the term Interest Rate from and after the time date of demand. If Tenant shall recover judgment against Landlord for failure to perform Landlord’s obligations under this Lease, or if the award exceeds matter is submitted by Tenant to arbitration in accordance with this Section 18.6 and it is determined that Tenant was entitled to incur such expense, then in either event, Tenant may offset the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder judgment or whichaward remaining unpaid, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing with interest at the rate of twelve (12%) percent per annum (Interest Rate, against Rent and other charges coming due hereunder. In the "INTEREST RATE"). As used in subparagraph (c) above, event the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Tenant to cure a default of Landlord in connection with such reletting;
(c) to exceed the payment amount recouped by Tenant by its withholding from Rent and other charges as aforesaid through the balance of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied Term then in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenanteffect, then Tenant shall pay have the right, but not the obligation, to extend the Term for a period of time sufficient for Tenant to recover such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all unrecouped costs and expenses incurred by Landlord in connection with from Rent and other charges otherwise payable during such reletting and in making any such alterations and repairs which are not covered by the rentals received from such relettingextended period.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Default and Remedies. 25.1 The occurrence of Lessee shall be in default under this Rental Agreement if any of the following shall constitute events occur: (i) Lessee fails to make any payment in accordance with the terms of this Rental Agreement and such failure continues for a period of five (5) days, (ii) Lessee fails to comply with any other term or provision of this Rental Agreement and such failure continues for a period of ten (10) days after receipt of notice of such failure from Lessor, (iii) Lessee becomes bankrupt, insolvent or makes an "EVENT OF DEFAULT" under this Lease assignment for the benefit of its creditors, (iv) involuntary bankruptcy or receivership proceedings are instituted against Lessee or its direct or indirect parent company and such petition or proceeding is not stayed or withdrawn within forty-five (45) days, (v) Lessor reasonably believes that Lessee is unable to comply with the payment terms hereof or is likely to become bankrupt, insolvent or make an assignment for the benefit of its creditors, (vi) the Equipment is lost, damaged, stolen, destroyed or seized by Tenanta governmental agency after it had been placed in the possession of Lessee, (vii) Lessor has a reasonable belief that a material risk of damage to the Equipment exists or that Lessee cannot adequately protect the Equipment, or (vii) a Force Majeure event that lasts longer than fifteen (15) days. Upon any such default, Lessor may at its option, upon prior notice in writing exercise any one or more of the following remedies:
(a) Any failure suspend Lessee’s right to use the Equipment and related services, (b) terminate this Rental Agreement, (c) during normal business hours enter any premises owned, operated or controlled by Tenant Lessee where any Equipment is used or otherwise may be found (each, an “Equipment Location”) and remove the same therefrom. Except in the case of gross negligence or willful misconduct, Lessor shall not be guilty of trespass or wrong or liable for any damages because of such removal of equipment, and Lessee agrees to pay when due all expenses of Lessor and Lessee incidental to said removal. Lessor has a credit facility with Comerica Bank (“Lender”), pursuant to which Lessor has pledged its assets to Lender as collateral. If Lessor defaults under its agreement with Lender, then Lender, may, at its option and upon prior notice, enter during normal business hours any Equipment Location and remove the Equipment therefrom. Except in the case of gross negligence or willful misconduct, Lender shall not be guilty of any trespass or wrong or liable for any damages because of such removal of equipment, and Lessee agrees to pay all of Lessee’s expenses incidental to said removal. Lessee waives any right to claim damages resulting from any of the Rent required to be paid above remedies exercised by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform Lessor. Lessee further waives any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; provided, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease additional notice and all rights of Tenant hereunder by giving written notice opportunity to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises cure pursuant to legal proceedings or pursuant to this Section 13 for any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations default following Lessee’s cure of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such prior default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Rental Agreement
Default and Remedies. 25.1 The occurrence of any one or more of the following events shall constitute be an "EVENT OF DEFAULTEvent of Default" under this Lease by Tenanthereunder:
(a) Any failure by Tenant to pay when due any if Sublessee causes an Event of Default under the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;Master Lease; or
(b) A failure by Tenant if Sublessee fails to perform or observe and perform any other provision requirement of this Lease Sublease which is to be observed kept or performed by Tenant where or on behalf of the Sublessee and such failure continues for thirty default is not cured within fifteen (3015) days after written notice thereof from Landlord; providedto Sublessee (or, that if the nature same is not reasonably susceptible of cure within 15 days, if Sublessee does not promptly commence to cure such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes pursue the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation completion thereafter); Upon an occurrence of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaidhereunder, in addition to any and all other remedies available to Landlord at law or in equity, Landlord Sublessor shall have the right to immediately terminate this Lease Sublease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time immediate possession of the award of Subleased Premises and to exercise any rights or remedies against Sublessee as Landlord may exercise against Sublessor under the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or whichMaster Lease. In addition, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following upon the occurrence of an Event of Default by Tenanthereunder, Landlord Sublessor shall also have the right, with or without terminating this Lease, be entitled to re-enter the Premises and remove recover all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided damages permitted by law, including reasonable attorneys' fees and if court costs, and to enforce all rights and remedies available to Sublessor at law or in equity, which remedies shall be cumulative, the exercise of one not to preclude the later exercise of another. Sublessor shall request the Landlord has supply a simultaneous copy of each notice of default under the Master Lease to Sublessee, and whether or not elected to terminate this LeaseLandlord so agrees, Sublessor shall supply Sublessee a copy of each notice of default from Landlord may continue this Lease and may either recover all rental as it becomes due or relet within five business days after receiving the Premises or any part or parts thereof for such term or terms and upon such provisions as same from Landlord, in its sole judgment, may deem advisable and shall have afford Sublessee opportunity to cure said default within any applicable period for notice and cure under the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Master Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Sublease (Genta Incorporated /De/)
Default and Remedies. 25.1 The occurrence A. If Tenant defaults in the payment of Basic Rent or any Additional Rent within fifteen (15) days after the due date thereof (no notice thereof being required to be given by Landlord), or if the Premises shall be deserted, abandoned or vacated, or if Tenant defaults in compliance with any of the following shall constitute an "EVENT OF DEFAULT" under other covenants or conditions of this Lease by Tenant:
and fails to cure the same within thirty (30) days after the receipt of notice specifying the default, then upon such rental default or at the expiration of such 30 days, as the case may be, Landlord may (a) Any failure by cancel and terminate this Lease upon written notice to Tenant (whereupon the Term shall terminate and expire, and Tenant shall then quit and surrender the Premises to pay when due Landlord, but Tenant shall remain liable as hereinafter provided) and/or (b) at any time thereafter re-enter and resume possession of the Premises as if this Lease had not been made. Anything above to the contrary notwithstanding, the said 30 day period of time for cure of non-monetary defaults shall extend beyond such 30 days for the period of time necessary to effect the cure provided that Tenant shall diligently commence the cure during such 30 day period and shall diligently and continuously prosecute the cure to completion.
B. If this Lease shall be terminated or if Landlord shall be entitled to re-enter the Premises and dispossess or remove Tenant under the provisions of this Section (either or both of which events are hereinafter referred to as a "Termination"), Landlord or Landlord's Agents may immediately or at any time thereafter re-enter the Premises and remove therefrom Tenant, its Agents, and any subtenants and other persons, firms or corporations, and all or any of its or their property therefrom, either by summary dispossess proceedings or by any suitable action or proceeding at law or by peaceable reentry without being liable to indictment, prosecution or damages therefor, and may repossess and enjoy the Premises, including all additions, alterations and improvements thereto.
C. In case of Termination, the Basic Rent and all other charges required to be paid by Tenant hereunder where such failure continues shall thereupon become due and shall be paid by Tenant up to the time of the Termination, and Tenant shall also pay to Landlord all reasonable expenses which Landlord may then or thereafter incur as a result of or arising out of a Termination, including but not limited to court costs, attorneys' fees, brokerage commissions, and costs of terminating the tenancy of Tenant, re-entering, dispossessing or otherwise removing Tenant and restoring the Premises to the condition as of the date hereof, reasonable wear and tear excepted, and from time to time altering and otherwise preparing the same for five re-letting (5) business days after including but not limited to costs of removing all or any part of the Alterations made by Tenant). Upon a Termination, Landlord may, at any time and from time to time (but shall not except to the extent required by law, be obligated to), re-let the Premises, in whole or in part, either in its own name or as Tenant's receipt agent, for a term or terms which, at Landlord's option, may be for the remainder of written notice the Term, or for any longer or shorter period.
D. In addition to the payments required hereinabove in this Section, Tenant shall be obligated to, and shall, pay to Landlord, upon demand and at Landlord's option:
(i) damages in an amount which, at the time of Termination, is equal to the excess, if any, of the then present amount of the installments of Basic Rent and Additional Rent reserved hereunder, for the period which would otherwise have constituted the unexpired portion of the Term over the then present rental value of the Premises for such unexpired portion of the Term discounted at prime + 2% (the word "Term" for purposes of this clause (i) and the ensuing clause (ii) being deemed to include any Renewal Term then in effect or for which the option shall have theretofore been exercised); or
(ii) damages payable in monthly installments, in advance, on the first day of each calendar month following the Termination, and continuing until the date originally fixed herein for the expiration of the Term, in amounts equal to the excess, if any, of the sums of the aggregate expenses paid by Landlord during the month immediately preceding such calendar month for all such items as, by the terms of this Lease, are required to be paid by Tenant, plus an amount equal to the installment of Basic Rent which would have been payable by Tenant hereunder in respect to such calendar month, had this Lease not been terminated, over the sum of rents, if any, collected by or accruing to Landlord in respect to such calendar month pursuant to a re-letting or to any holding over by any subtenants of Tenant.
E. Except as otherwise required by law in connection with Landlord's obligation to mitigate damages, Landlord shall in no event be liable for failure to relet the Premises, or in the event that the same is overdue;
(b) A Premises are re-let, for failure to collect rent due under such re-letting; and in no event shall Tenant be entitled to receive any excess of rents over the sums payable by Tenant to observe Landlord hereunder but such excess shall be credited to the unpaid rentals due hereunder, and perform to the expenses of reletting and preparing for re-letting as provided herein.
F. Suit or suits for the recovery of damages hereunder, or for any other provision installments of this Lease rent; may be brought by Landlord from time to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; providedtime at its election, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default nothing herein contained shall be deemed to exist require Landlord to postpone suit until the date when the Term would have expired if it had not been terminated under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event provisions of Default under this Lease, or under any provision of law, or had Landlord not reentered into or upon the Premises.
25.2 In the event of any Event of Default by Tenant as aforesaidG. Landlord, at its option, in addition to any and all other remedies available to it, shall have the right to charge a fee for payment of rent received later than fifteen (15) days after the date due, which fee shall be five percent (5%) of the delinquent payment.
H. Tenant hereby waives all rights of redemption to which Tenant or any person claiming under Tenant might be entitled, after an abandonment of the Premises or after a surrender and acceptance of the Premises and Tenant's leasehold estate, or after a dispossession of Tenant from the Premises, or after a termination of this Lease, or after a judgment against Tenant in an action in ejectment, or after the issuance of a final order or warrant of dispossess in a summary proceeding, or in any other proceeding or action authorized by any rule of law or statute now or hereafter in force or effect.
I. No mention in this Lease of any specific right or remedy shall preclude Landlord from exercising any other right or from having any other remedy or from maintaining any action to which Landlord may otherwise be entitled hereunder or at law or in equity.
J. Landlord is hereby granted a lien, in addition to any statutory lien or right to distrain that may exist, upon all property of Tenant in or upon the Premises, to secure payment of the rent and performance of the covenants and conditions of this Lease provided however that such lien shall be junior and subordinate to the lien of existing bank debt, the liens in favor of the Estate of Xxxxx X. Xxxxxxx (the "Estate") for funds advanced by the Estate prior to the date hereof, and for any liens granted in connection with any refinancing, replacement or assignment of such debt. Such lien is agreed to constitute a security interest and this Lease a security agreement within the meaning of the Uniform Commercial Code as applicable to New Jersey. Upon default by Tenant beyond any grace period to cure same, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account as agent of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect and subject to re-enter as above provided or shall the rights of other lienholders including the Estate, to take possession of any furniture, fixtures or other personal property of Tenant found in or about the Premises pursuant to legal proceedings or pursuant to any notice provided by lawPremises, and if Landlord has not elected sell the same at public or private sale and to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet apply the Premises or any part or parts proceeds thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of monies becoming due under this Lease, the Tenant to Landlord other than rent due hereunder from Tenant;
(b) to hereby waiving the payment benefit of all costs laws exempting property from execution, levy and sale under distress or judgment. Tenant agrees to pay, as Additional Rent, all reasonable attorneys' fees and other expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthlyenforcing its lien given above. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred be allowed to pursue any remedies available to it at law or equity in event of default by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such relettingLandlord.
25.7 No re-entry K. If Landlord defaults in compliance with any terms or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant conditions of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding be entitled to pursue any remedy available at law or action may have been filed or commencedin equity in connection therewith.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Default and Remedies. 25.1 8.1 If Purchaser fails to consummate this transaction for any reason Purchaser of an express right of termination granted herein, Seller shall be entitled, as its sole remedy hereunder, to terminate this Agreement and to receive and retain the Xxxxxxx Money as full liquidated damages for such default of Purchaser, the parties hereto acknowledging that it is impossible to estimate more as a penalty, but as full liquidated damages. The occurrence event of default hereunder by Xxxxxxxxx, and Seller hereby waives and releases any of right to (and hereby covenants that it shall not) sue the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
Purchaser: (a) Any failure by Tenant to pay when due any for specific performance of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
this Agreement, or (b) A failure to recover actual damages in excess of the Xxxxxxx Money. Nothing contained in this Section 8.1 to the contrary shall release or absolve Purchaser from its obligation to indemnify, defend and hold Seller harmless under those provisions of this Agreement which by Tenant their express terms survive the termination of this Agreement.
8.2 If Seller fails to observe and perform any other provision of its obligations under this Lease to be observed or performed by Tenant where such failure continues Agreement for thirty (30) days after written notice thereof from Landlord; providedexpressly provided herein, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default Purchaser shall be deemed entitled, as its remedy, either (a) to exist under terminate this Lease so long Agreement -of- pocket costs and expenses incurred with respect to this transaction not to exceed the sum of Fifty Thousand and No/100 Dollars ($50,000.00 U.S.) which shall be reimbursed by Seller to Purchaser within ten (10) and expenses (in such event, the right to retain the Xxxxxxx Money plus costs shall be full liquidated damages and, except as Tenant is paying the Rent required to set forth herein, shall be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In Purchaser's sole and exclusive remedy in the event of a default hereunder by Xxxxxx, and Purchaser hereby waives and releases any Event right to sue Seller for damages), or (b) obligation to execute and deliver the documents required to convey the Property to Purchaser in accordance with this Agreement. If specific performance is not available to Purchaser as a result of Default by Tenant as aforesaidSeller having sold the Property or any portion thereof to another party, in addition to any termination right and reimbursement referenced, Purchaser shall have all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article Section 8.2 to the contrary shall constitute a waiver release or absolve Seller from its obligation to indemnify, defend and hold Purchaser harmless under those provisions of Landlord's right to recover damages this Agreement which by reason of Landlord's efforts to mitigate their express terms survive the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this LeaseAgreement.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Generation Income Properties, Inc.)
Default and Remedies. 25.1 The occurrence a. If any Fixed Rent is due and remains unpaid for ten (10) days after receipt of notice from Landlord, or if Tenant breaches any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision covenants of this Lease and if such other breach continues for thirty (30) days after receipt of notice from Landlord, Landlord shall then, as its sole legal remedy, but in addition to its remedies in equity, if available, have the right to sxx for rent, or to terminate this Lease and re-enter the Leased Premises; but if Tenant shall pay said Fixed Rent within said ten (10) days, or in good faith within said thirty (30) days commence to correct such other breach, and diligently proceed therewith, then Tenant shall not be observed considered in default. Notwithstanding the foregoing, should Tenant be in default, after notice and expiration of the applicable cure period provided above in this Section (a), Landlord shall not be entitled to terminate this Lease and re-enter the Leased Premises as a result thereof if Tenant’s default shall not be deemed material, or performed by if Tenant’s failure to perform is the result of a good faith dispute as to Tenant’s obligation(s) under the terms of this Lease.
b. If Landlord shall from time to time fail to pay any sum or sums due to Tenant where and if such failure continues for thirty (30) days after written receipt of notice thereof from Landlord; provided, that if the nature of Tenant (unless such default is such that the same breach cannot with due diligence be cured in 30 days and Landlord has commenced action to cure the breach and is diligently attempting to cure the breach but in no event greater than 90 days from the date of notice), Tenant shall have the right and is hereby irrevocably authorized and directed to deduct such sum or sums from Fixed Rent and other sums due Landlord, together with interest thereon at the so-called prime rate charged from time to time by JX Xxxxxx Chase Bank (its successors and assigns), plus two percent (2%) until fully reimbursed. If Landlord shall from time to time fail to perform any act or acts required of Landlord by this Lease and if such failure continues for thirty (30) days after receipt of notice from Tenant, Tenant shall then have the right, in addition to such remedies as may be available under law or in equity, at Tenant’s option, to perform such act or acts, in such manner as Tenant deems reasonably necessary, and the full amount of the cost and expense so incurred shall immediately be owing by Landlord to Tenant, and Tenant shall have the right and is hereby irrevocably authorized and directed to deduct such amount from Fixed Rent and other sums due Landlord, together with interest thereon at the so-called prime rate charged from time to time by JX Xxxxxx Cxxxx Bank (its successors and assigns), plus two percent (2%) until fully reimbursed. If Landlord shall in good faith within said periodthirty (30) days commence to correct such breach, Tenant and diligently proceed therewith to completion, then Landlord shall not be considered in
c. No delay on the part of either party in enforcing any of the provisions of this Lease shall be considered as a waiver thereof. Any consent or approval granted by either party under this Lease must be in writing and shall not be deemed to waive or render unnecessary the obtaining of consent or approval with respect to any subsequent act or omission for which consent is required or sought.
d. If Tenant shall fail to pay, when the same is due and payable, any Fixed Rent, or any other charges or amounts hereunder, such amounts shall bear interest at the rate of six percent (6%) per annum from the date after the due date until paid. If Tenant shall fail to pay, when the same is due and payable, any Fixed Rent, or any other charges or amounts hereunder, Tenant shall pay to Landlord a late payment charge in the amount of One Hundred Twenty-Five and 00/100 Dollars ($125.00) to cover Landlord’s additional administrative expenses necessitated by Tenant’s failure to make timely payment; provided, however, the aforesaid late payment charge shall be subject to a six percent (6%) increase at the beginning of the sixth (6th) year of the Term and at the beginning of each Extended Lease Term, if exercised. Landlord need not accept any payments past the due date therefor unless accompanied by the late payment charge. This provision for a late payment charge shall be in default if it shall within said period commence such during addition to all of Landlord’s other rights and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist remedies under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord or at law or in equity, Landlord and shall have not be construed as liquidated damages or as limiting Landlord’s remedies in any manner.
e. If Tenant shall at any time fail to pay, when the right same is due and payable, any Fixed Rent, or any other charges or amounts hereunder, or shall fail to immediately terminate perform or observe any covenant or condition contained in this Lease and all rights Lease, the performance of Tenant hereunder by giving which involves something more than merely the payment of money, then Landlord, after thirty (30) days written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of or upon such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing shorter notice as may be permitted by applicable California law reasonable in case of an emergency), and without waiving or releasing Tenant from time to time.
25.3 As used in subparagraphs (a) any obligation and (b) abovewithout being considered an election of remedies, may perform the "worth at same for the time account of Tenant and charge Tenant the award" is computed by allowing actual cost of any such performance, as well as interest thereon at the rate of twelve percent (12%) percent per annum (form the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time date of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion ’s making of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such relettingpayment.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Default and Remedies. 25.1 The occurrence of any of the following 7.1 Licensee shall constitute an "EVENT OF DEFAULT" be in material and substantial default under this Lease by TenantAgreement if Licensee:
(a) Any failure by Tenant to pay when due Suffers any of the Rent required materialmen’s or mechanic’s lien or attachment to be paid filed against the Airport or Airport Operator’s property because of any act or omission of Licensee, and such lien or attachment is not discharged or contested by Tenant hereunder where such failure continues for five Licensee in good faith by proper legal proceedings within sixty (560) business days after Tenant's receipt of written notice that the same is overduethereof by Licensee;
(b) A failure by Tenant to observe Materially breaches any obligation set forth in this Agreement, and perform any other provision of this Lease to be observed or performed by Tenant where such failure material breach continues for thirty a period of more than sixty (3060) days after delivery by Airport Operator of a written notice thereof from Landlord; provided, that if the nature of such default material breach, except where a shorter period is such that specified herein. With the same cannot exception of the payment of License Fees, which shall be due and payable as herein provided in Article 4.3 and failure to comply with due diligence be cured within said periodGovernmental Regulations as provided in Article 1.5, Tenant Licensee shall not be deemed to be considered in default if it shall of this Agreement where fulfillment of its obligation requires affirmative action over a period of time and Licensee, within said period commence sixty (60) days of notice, commences in good faith to perform the actions that may be required to correct its failure to perform and continues such during and thereafter diligently prosecutes the same to completion;performance without interruption except for causes beyond its control.
(c) Any default by Tenant under 7.2 If Licensee defaults in any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premisescovenants, provided that if Tenant has vacated terms, and conditions herein, Airport Operator may exercise one or more of the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, following remedies in addition to any and all other rights or remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder that are provided by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenantlaw:
(a) The worth at the time Airport Operator may elect to allow this Agreement to continue in full force and effect and to enforce all of the award of the unpaid rent payable hereunder which had been earned at the date of such terminationAirport Operator’s rights and remedies hereunder; plusor
(b) The worth Airport Operator may cancel and terminate this Agreement and, with process of law upon giving sixty (60) days written notice to Licensee of its intention to terminate, at the end of which time all the rights hereunder of Licensee shall terminate, unless the award of the amount by default, which the unpaid rent which would shall have been earned after termination and until the time of the award exceeds the amount of stated in such rental loss which Tenant proves could notice, shall have been reasonably avoided; plus
(c) The worth at the time of the award of the amount cured oris being addressed by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, good faith action fully described in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"Article 7.1(b). As used in subparagraph (c) above, the "worth at the time of the award" Airport Operator is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a standard of reasonableness in determining whether the default is a minor or a material and substantial default. The remedy of termination of this LeaseAgreement may be exercised by Airport Operator only for an uncured material and substantial default by Licensee.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Default and Remedies. 25.1 The occurrence of any (a) Each of the following shall constitute an "EVENT OF DEFAULT" under this Lease by TenantEvent of Default hereunder:
(ai) Any failure by Tenant to pay when due any An Event of Default occurs and is continuing under the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdueNote;
(bii) A failure by Tenant to observe and perform The Debtor defaults in the performance of any other provision obligation of this Lease to be observed the Debtor hereunder or performed by Tenant where such failure continues under the Purchase Agreement for thirty more than fifteen (3015) days after written the Secured Party has given notice thereof from Landlord; provided, that if the nature of such default is such that to the same cannot with due diligence be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completionDebtor;
(ciii) Entertainment delivers a notice to the Debtor that pursuant to the terms of the Operating Agreement, Entertainment is electing its Purchase Right of the Debtor's Membership Interest in the LLC, or an event occurs that pursuant to the terms of the Operating Agreement would subject all of the Debtor's Membership Interest in the LLC to automatic and immediate termination; or
(iv) Any default representation or warranty made herein by Tenant under the Debtor shall prove to have been false or misleading in any other lease between Landlord material respect as of the date hereof or to have been breached and Tenant for other premises in is not cured within fifteen (15) days after the Center;Secured Party has given notice to the Debtor thereof.
(di) The abandonment or vacation of the PremisesSubject to clause (ii), provided that below, if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default shall occur, then the Secured Party may at its option (x) declare the Note to be immediately due and payable in full, whereupon the unpaid principal of and accrued interest on the Note shall become immediately due and payable and (y) the Secured Party may exercise all rights and remedies (not inconsistent with the terms of the Note or this Agreement) with respect to the Collateral as are available to it under this Leasesuch agreements and instruments and applicable law.
25.2 (ii) The following provisions shall apply if an Event of Default shall occur. The principal and accrued interest on the Note shall be immediately due and payable without any notice or other action being required on the part of the Secured Party. If the Event of Default consists of Entertainment's election of a Purchase Right, then the Secured Party's remedies for this Event of Default shall be limited to the extent and in the circumstances provided in the Operating Agreement. If the Event of Default is one that causes the automatic termination of the Debtor's Membership Interest, and the Membership Interest of the Secured Party as a result increases in accordance with the provisions of the Operating Agreement, then the Secured Party shall transfer the Note to the LLC as provided by the Operating Agreement and shall exercise no remedies thereunder inconsistent with its obligations as set out under the Operating Agreement. In the event of any other Event of Default by Tenant hereunder, then Secured Party's remedy shall be limited in the same manner as aforesaidif the Event of Default consists of Entertainment's election of a Purchase Right under the Operating Agreement. In any event, provided all of the applicable provisions of Section 11.2(b) of the Operating Agreement occur, Secured Party shall take no further action against the Debtor to enforce payment under the Note, except for the payment of accrued but unpaid interest.
(iii) Without limiting the generality of the remedies provided for above, following an Event of Default the Secured Party shall (i) be entitled to exercise all rights with respect to the Membership Interest, including the right to vote the Membership Interest and to give all consents, waivers and ratifications in respect thereof, and in such event and for such purpose, the Debtor hereby irrevocably constitutes and appoints the Secured Party as its proxy and attorney-in-fact (which appointment shall be coupled with an interest) with full power of substitution, to do so. To evidence such appointment, the Debtor agrees to execute and deliver such further documents and instruments as the Secured Party reasonably may request. The rights and remedies provided in this Agreement are cumulative and in addition to any rights and all other remedies available to Landlord which the Secured Party may have under the Note or at law or in equity, Landlord . The Secured Party shall have be entitled to reimbursement from the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord Debtor for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or whichreasonable costs, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) attorneys' fees and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord it in connection with exercising such reletting;
(c) to the payment of the cost of any alterations of rights and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such relettingremedies.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Assignment, Pledge and Security Agreement (Black Hawk Gaming & Development Co Inc)
Default and Remedies. 25.1 The occurrence of any To extend a Rental Period, Customer must contact NTBBS within four days of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any expiration of the Rent required Rental Period. Should Customer fail to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt timely return the Equipment at the conclusion of written notice that the same is overdue;
(b) A failure by Tenant Rental Period and/or fail to observe return the Equipment in as good order and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord; providedcondition as we received, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Tenant Customer shall not be deemed to be in default if it shall within said period commence such during the default. If the Equipment is not returned prior to expiration of the Rental Period, Customer will incur and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises be charged an additional rental fee in the Center;
amount identified on invoice on a weekly, recurring basis (d“Additional Rental Fees”) The abandonment until either (i) the Equipment is returned, or vacation (ii) the 30th day after the Rental Period expires, whichever occurs first. As of the Premises30th day after the Rental Period expires, provided that if Tenant has vacated NTBBS may take such steps as permitted by law to secure return of the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying Equipment and/or the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event reasonable value of Default under this Lease.
25.2 In the event Equipment based on the condition of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth Equipment at the time beginning of the award of the unpaid rent payable hereunder which had been earned at the date of Rental Period. In such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord event, Customer shall reimburse NTBBS for all detriment proximately caused by Tenant's failure to perform its obligations hereunder costs incurred including, without limitation, reasonable attorney fees. CUSTOMER EXPRESSLY AGREES AND HEREBY AUTHORIZES NTBBS TO CHARGE TO THE CUSTOMER CARD ALL AMOUNTS SHOWN ON THE INVOICE, AND ALL CHARGES SUBSEQUENTLY INCURRED BY CUSTOMER UNDER OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF OR DAMGE TO THE EQUIPMENT, EXTENSION OF THE RENTAL PERIOD, REPAIR COSTS, AND ANY CHARGES INCURRED FOR FAILURE TO TIMELY RETURN THE EQUIPMENT, INCLUDING ANY ADDITIONAL RENTAL FEES AND/OR EQUIPMENT REPLACEMENT FEES, NOT TO EXCEED $10,000. Customer agrees that a service of 1.5% per month, or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be maximum rate permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) assessed on all delinquent accounts, until paid in full. Deposits will be returned only after all amounts payable to NTBBS are paid in full. If Customer’s payment towards the payment of any indebtedness of Tenant account is returned, denied, or otherwise unable to Landlord other than rent be processed, the balance due hereunder from Tenant;
(b) may be sent to a 3rd party collection agency on the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to 31st day after the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunderRental Period expires. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunderCUSTOMER HEREBY AGREES THAT CUSTOMER IS NOT ENTITLED TO NOTICE OF DEFAULT OR NOTICE OF ANY ACTION OF ENFORCEMENT BY NTBBS OTHER THAN WHAT IS EXPRESSLY PROVIDED FOR UNDER THIS AGREEMENT. Should that portion NTBBS fail to meet any of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord its obligations under this Article shall be construed as an election Agreement, Customer’s only remedy is repair or replacement of deficient Equipment or to terminate this Lease unless receive, at NTBBS option, a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such defaultrental charge adjustment.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Rental Agreement
Default and Remedies. 25.1 The (a) In addition to the circumstances hereinbefore set forth, the occurrence of any of the following shall constitute an "EVENT OF DEFAULT" under a default of this Lease by Tenant:
(ai) Any failure the filing of any voluntary petition or similar pleading under any section or sections of any bankruptcy or insolvency act by or against Tenant or the institution of any voluntary or involuntary proceeding in any court or tribunal to declare Tenant insolvent or unable to pay when Tenant's debts as they mature and, in the case of an involuntary petition or proceeding, the petition or proceeding is not dismissed within sixty (60) days from the date it is filed, or the making of an assignment for the benefit of its creditors by Tenant, or the appointment of a trustee or receiver for Tenant or for the major part of Tenant's property;
(ii) Tenant's failure to pay the monthly Base Rental, Additional Rent or any other sum due any of the Rent required to be paid by Tenant hereunder where hereunder, if such failure nonpayment continues for five (5) business or more days after the date notice of such late payment is received by Tenant's receipt ; provided, however, if more than one (1) payment due of written Tenant hereunder in any twelve (12) month period during the Term is not made until after notice that of such late payment is received by Tenant, then it shall be a default hereunder by Tenant if any subsequent payment due of Tenant hereunder in the same twelve (12) month period is not made within ten (10) days after the date the same is overduedue;
(biii) A failure by Tenant to observe Tenant's default in the prompt and perform full performance of any other provision of this Lease to be observed or performed by and Tenant where such failure continues for does not cure the default within thirty (30) days after written notice thereof from demand by Landlord that the default be cured to the reasonable satisfaction of Landlord or in the event the default cannot be reasonably cured within a thirty (30) day period, Tenant does not commence reasonable action within said thirty (30) day period and proceeds diligently to cure such default. (unless the default involves a condition dangerous to person or property, in which event such default shall be cured forthwith upon Landlord; provided, that if 's demand). Any such written demand shall describe the nature of such the default is such that and the same cannot with due diligence be cured within said period, Tenant shall not be deemed suggested action to be in default if it shall within taken to cure said period commence such during and thereafter diligently prosecutes the same to completion;default.
(civ) Any default by the levy, execution or attachment against assets of Tenant under any other lease between Landlord and Tenant for other premises located in the Center;Premises; or
(dv) The Tenant's failure to take possession or occupancy of, or desertion or abandonment or vacation of the Premisesof, provided that if Tenant has vacated the Premises and is actively seeking a subtenant (or assigneeany substantial portion thereof), no default shall be deemed to exist under this Lease so long as Tenant is paying or the Rent required to be paid hereunder; andPremises (or any substantial portion thereof) otherwise becoming vacant.
(eb) Any other event herein specified to be an Event of Default under this Lease.
25.2 In Upon the event occurrence of any Event of Default default by Tenant as aforesaid, Landlord, in addition to any and all other rights or remedies available to Landlord it may have at law or in equity, shall have the option of pursuing any one or more of the following remedies:
(i) Landlord shall have the immediate right to immediately terminate this Lease of reentry and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in from the Premises to a public warehouse or elsewhere at the cost of, and for the account of Tenant, all without being deemed guilty of trespass or becoming liable for any loss, damage or damages which may be occasioned thereby;
(ii) Landlord may terminate this Lease by giving notice of termination, in accordance which event this Lease shall expire and terminate on the date specified in such notice of termination, with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter the same force and effect as above provided or shall take possession though the date so specified were the date herein originally fixed as the expiration date of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate Term of this Lease, Landlord may continue and all rights of Tenant under this Lease and may either recover in and to the Premises shall expire and terminate, and Tenant shall remain liable for all rental obligations under this Lease arising up to the date of such termination, and Tenant shall surrender the Premises to Landlord on the date specified in such notice;
(iii) Landlord may, without terminating this Lease, declare immediately due and payable all Base Rental, Additional Rent, and other rents and amounts due and coming due under this Lease for the entire remaining Term hereof, together with all other amounts previously due, at once; provided, however, that such payment shall not be deemed a penalty or liquidated damages but shall merely constitute payment in advance of rent for the remainder of said Term; upon making such payment, Tenant shall be entitled to receive from Landlord all rents received by Landlord from other assignees, tenants and subtenants on account of said Premises during the Term of this Lease, provided that the monies to which Tenant shall so become entitled shall in no event exceed the entire amount actually paid by Tenant to Landlord pursuant to this clause (iv) less all costs, expenses and attorneys' fees of Landlord incurred in connection with the reletting of the Premises; or
(iv) Landlord may, from time to time without terminating this Lease, and without releasing Tenant in whole or in part from Tenant's obligation to pay Base Rental, Additional Rent and all other amounts due under this Lease and perform all of the covenants, conditions and agreements to be performed by Tenant provided in this Lease, make such alterations and repairs as it becomes due or necessary to relet the Premises, and, after making such alterations and repairs, Landlord may, but shall not be obligated to, relet the Premises or any part or parts thereof for such term or terms (which may be for a term extending beyond the Term of this Lease) at such rental and upon such provisions other terms and conditions as Landlord, Landlord in its sole judgment, discretion may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaidor acceptable; upon each reletting, then all rentals received by Landlord therefrom from such reletting shall be applied as follows:
(a) first, to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) Tenant to Landlord; second, to the payment of all any costs and expenses incurred by Landlord in connection with of such reletting;
(c) , including brokerage fees and attorneys' fees, and of costs of such alterations and repairs; third, to the payment of the cost of any alterations of Base Rental, Additional Rent and repairs to the Premises; and
(d) to the payment of rent other charges due and unpaid hereunder hereunder; and the residue, if any, shall be held by Landlord and applied in payment against payments of future rent Base Rental, Additional Rent or other charges as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above charges that which Tenant is obligated to pay hereunder. Should that portion of , including Base Rental, Additional Rent and all other charges; if such rentals received from such reletting during any month, which is applied month are less than those to be paid during the payment of rent month by Tenant hereunder, be less than the rent payable hereunder during that month by Tenantincluding Base Rental, then Additional Rent and all other charges, Tenant shall pay any such deficiency to Landlord forthwith upon demandLandlord, and said which deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, demand all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of ; notwithstanding any such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's defaulttermination, Landlord may at any time after such reletting thereafter elect to terminate this Lease because of for such defaultprevious breach.
25.8 Nothing contained (c) Landlord's reentry, demand for possession, notice that the tenancy hereby created will be terminated on the date therein named, institution of an action of forcible detainer or ejectment or the entering of a judgment for possession in this Article such action or any other act or acts resulting in the termination of Tenant's right to possession of the Premises shall not relieve Tenant from Tenant's obligation to pay all sums due hereunder, except as herein expressly provided. Landlord may collect and receive any Base Rental, Additional Rent or other charges due from Tenant, and the payment thereof shall not constitute a waiver of or affect any notice or demand given, suit instituted or judgment obtained by Landlord's right , or be held to recover damages waive, affect, change, modify or alter the rights or remedies which Landlord has in equity or at law or by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination virtue of this Lease.
25.9 Subject only (d) If Landlord commences any proceedings for nonpayment of Base Rental, Additional Rent or other sums due hereunder, Tenant will not interpose any counterclaim of whatever nature or description which is not directly related to Article 31the Lease in any such proceeding. This shall not, if Landlord shall retain an attorney for the purpose however, be construed as a waiver of collecting Tenant's right to assert such claims in any rental separate action or actions brought by Tenant. Any action brought under or with respect to this Lease must be brought in a court located in Madison County, Alabama, and having jurisdiction therein.
(e) All sums past due from Tenant under this Lease shall bear interest at eighteen percent (18%) per annum, but in no event in excess of the maximum lawful rate, from due date until paid in full.
(f) Except as expressly provided in this Lease, Tenant hereby waives any and every form of demand and notice prescribed by statute or other law, including without limitation the notice of any election of remedies made by Landlord under this Paragraph, demand for payment of any rent, or demand for possession.
(g) All rights and remedies of Landlord created or otherwise existing at law are cumulative, and the exercise of one or more rights or remedies shall not be taken to exclude or waive the right to exercise any other.
(h) Tenant shall and hereby agrees to pay all costs and expenses incurred by Landlord in enforcing any other covenant of the covenants and agreements of this Lease, or as a result of an action brought by Landlord against Tenant shall pay the reasonable fees of such attorney for his services regardless an unlawful detainer of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent Premises, and any other sums due all such costs, expenses and payable hereunder attorneys' fees shall, if paid by Landlord, be paid by Tenant shall bear to Landlord within fifteen (15) days of Landlord's written demand therefor, together with interest at eighteen percent (18%) per annum, but in no event in excess of the maximum lawful rate per annum rate, from the due date and until of Landlord's payment thereof.
Appears in 1 contract
Default and Remedies. 25.1 The occurrence of any This lLease is made entered into by Lessor on the condition that Lessee shall perform all of the following shall constitute an "EVENT OF DEFAULT" under covenants and agreements set forth in this Lease lLease which are to be performed by Tenant:
(a) Any failure by Tenant to pay when due the Lessee. If at any time there be is a default on the part of the Rent required Lessee in the payment of rent (the term rent meaning all rentals and any other sums payable to the Lessor pursuant to this lLease ), taxes, assessments, utility charges or any other charges and payments by Lessee to be paid by Tenant hereunder where made, or any part thereof, and if such failure continues default shall continue for a period of thirty-five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (3035) days after written notice thereof from LandlordLessor as provided for herein; provided, that or if the nature Lessee shall fail, refuse or neglect to forthwith cease the violation of any of the provisions of this lLease, or if there shall be default on the part of the Lessee in the performance of any of the remaining covenants or agreements of this lLease by the Lessee which are to be performed, and such default shall continue for a period of thirty-five (35) days after written notice of such default is being given by the Lessor as provided for herein and Lessee has not diligently commenced action to cure such that default, the same cannot with due diligence be cured within said period, Tenant Lessor shall not be deemed have the right to be in default if pursue all rights and remedies it shall within said period commence such during and thereafter diligently prosecutes the same to completion;
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord may have at law or in equity, Landlord including injunctive relief, or it shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant:
(a) The worth at the time of the award of the unpaid rent payable hereunder which had been earned at the date of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, without further demand or notice (which is hereby waived) at its election, to terminate this lLease and to enter upon the demised pPremises with or without terminating this Leaselegal process and take immediate possession thereof. In addition, Lessor may bring suit for and collect all rents and payments payable to re-enter the Premises and remove all property and persons therefromCityLessor, and any all costs, expenses, attorney fees and damages incurred or suffered by the Lessor. From the time of such property entry, this lLease and all rights, privileges, easements and leasehold interests herein granted shall terminate to all intents and purposes whatsoever; provided also, that for rents due and nonperformance of other conditions, Lessor may be removed sue at once and stored pursue all remedies that it may have at law or in a public warehouse or elsewhere at equity without being required to enter into possession and forfeit the cost Lessee's term as herein provided. Lessor and for Xxxxxx further agree that in the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment event of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to default, the payment of defaulting party shall pay all costs and expenses incurred expenses, including a reasonable attorney's fee, which may arise or accrue from enforcing this leaseLease, or in pursuit of any remedies provided hereunder, or by Landlord in connection with such reletting;
(c) to the payment statutes of the cost State of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residueNevada, if any, shall be held whether such remedy is pursued by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such relettingfiling a suit or otherwise.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Lease Agreement
Default and Remedies. 25.1 The occurrence (a) In the event either party defaults in the performance of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due any of the Rent covenants or obligations required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty party (30such defaulting party being hereinafter referred to as the “Defaulting Party”) days after pursuant to the terms of this Agreement, the non-defaulting party (“Non-Defaulting Party”) before seeking any remedies hereunder, shall provide the Defaulting Party with written notice thereof from Landlord; provided, that if the nature of such default (“Default Notice”). Defaulting Party shall have ten (10) days from receipt of such Default Notice to cure such default before the Non-Defaulting Party may exercise the remedies set forth in Subsections 16(b) and 16(c) below.
(b) In the event Buyer breaches or defaults under any of the terms of this Agreement prior to or on either Closing Date, the sole and exclusive remedy of Seller shall be to receive from Escrow Agent the Xxxxxxx Money Deposit, and Buyer shall have no right therein. Buyer and Seller acknowledge and agree that (i) the Xxxxxxx Money Deposit and any interest earned thereon if received in accordance with the terms of this Agreement is a reasonable estimate of and bears a reasonable relationship to the damages that would be suffered and costs incurred by Seller as a result of having withdrawn the Properties from sale and the failure of either Closing to occur due to a default of Buyer under this Agreement; (ii) the actual damages suffered and costs incurred by Seller as a result of such that withdrawal and failure to close due to a default of Buyer under this Agreement would be extremely difficult and impractical to determine; (iii) Buyer seeks to limit its liability under this Agreement to the same canamount of the Xxxxxxx Money Deposit and any interest earned thereon if the transaction contemplated by this Agreement does not with close due diligence to a default of Buyer under this Agreement; and (iv) such amount shall be cured within said period, Tenant shall not be deemed to be in default if it shall within said period commence such during and thereafter diligently prosecutes the same to completion;constitute valid liquidated damages.
(c) Any default by Tenant under any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event Seller defaults under any of any Event the terms of Default by Tenant as aforesaidthis Agreement on or prior to either Closing Date, Buyer shall be entitled to (i) compel specific performance of this Agreement, in addition to any and which event Buyer may also recover all other remedies available to Landlord at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election out of pocket costs incurred as a result of said default, and/or (ii) if specific performance is not possible or if Buyer elects not to do so. If Landlord shall elect to terminate this Leasepursue specific performance, then it may recover from Tenant:
(a) The worth at the time receive a refund of the award Xxxxxxx Money Deposit and recover its actual out of the unpaid rent payable hereunder which had been earned at the date pocket costs incurred as a result of such termination; plus
(b) The worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or whichdefault. In addition, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition event a Seller default relates to or in lieu less than all of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) aboveProperties, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord Buyer shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that (i) compel specific performance as to those Premises on which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demandSeller has not defaulted, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to (ii) terminate this Lease unless Agreement as to just those Premises on which Seller has defaulted and recover its actual out of pocket costs incurred as a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because result of such default.
25.8 Nothing contained . In the event Seller defaults by breaching a representation or warranty set forth in this Article Agreement and such default is not discovered until after either Closing, Buyer shall constitute a waiver of Landlord's right be entitled to recover all actual damages incurred by reason Xxxxx as a result of Landlord's efforts said default of Seller. Notwithstanding anything to mitigate the damages to it caused by Tenant's default; nor shall anything contrary contained herein, in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination the event Seller defaults under any of the terms of this LeaseAgreement, Seller shall reimburse Buyer for costs as a result of said default up to $100,000.00.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Contract (RumbleOn, Inc.)
Default and Remedies. 25.1 The occurrence Tenant shall be in default of this Lease if Tenant breaches or fails to observe any of its covenants or obligations hereunder on the date set for such performance, including, without limitation, A) fails to timely pay any sum due hereunder, B) if Tenant permits any judgment to be entered against the Leased Premises or makes an assignment for the Benefit of Creditors or commit any other act of Bankruptcy; C) If a petition for adjudication of bankruptcy or for reorganization or rearrangement is filed by or against Tenant and is not dismissed within thirty (30) days; D) if a trustee or receiver is appointed to take possession of substantially all of Tenant’s assets located at the Leased Premises or if Tenant’s interest in this Lease and possession is not restored to Tenant within thirty (30) days; E) if substantially all of Tenant’s assets located at the Leased Premises or if Tenant’s interest in this Lease is subjected to attachment, execution or other judicial seizure which is not discharged within thirty (30) days. If a court of competent jurisdiction determines that any of the following shall constitute an "EVENT OF DEFAULT" acts described in this paragraph is not a default under this Lease by Lease, and a trustee is appointed to take possession (or if Tenant remains a debtor in possession) and such trustee or Tenant transfers Tenant:’s interest hereunder, then Landlord shall receive, as Rent, the excess, if any, of the rent (or any other consideration) paid in connection with such assignment or sublease.
(a) Any failure by Tenant to pay when due If any of the Rent required to be paid by Tenant hereunder where such failure continues for five default covered in section 20 is not cured within fifteen (5) business days after Tenant's receipt of written notice that the same is overdue;
(b) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (3015) days after written notice thereof from Landlord; providedby Landlord to Tenant, that if the nature of such default is such that the same cannot with due diligence be cured within said period, Landlord may :
i) immediately terminate this Lease and Tenant shall not be deemed to be in default if it shall within said period commence such during immediately vacate the Leased Premises and thereafter diligently prosecutes make arrangements for the same to completion;prompt removal of all cargo from the Leased Premises; or
(cii) Any default by Tenant under pursue any other lease between Landlord rights and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premises, provided that if Tenant has vacated the Premises and is actively seeking a subtenant or assignee, no default shall be deemed to exist under this Lease so long as Tenant is paying the Rent required to be paid hereunder; and
(e) Any other event herein specified to be an Event of Default under this Lease.
25.2 In the event of any Event of Default by Tenant as aforesaid, in addition to any and all other remedies available to Landlord at law or in equity.
iii) All remedies shall by cumulative and may be exercised concurrently or otherwise.
b) On the occurrence of any material default by Tenant, Landlord may, at any time thereafter, with or without notice or demand and without limiting Landlord in the exercise of any right or remedy which Landlord may have, terminate Tenant’s right to possession of the Leased Premises by any lawful means, in which case this Lease shall terminate, and Tenant shall immediately surrender possession of the Leased Premises to Landlord. In such event, Landlord shall have the right be entitled to immediately terminate this Lease and all rights of Tenant hereunder by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then it may recover from Tenant all damages incurred by Landlord by reason of Tenant:
’s default, including (a1) The the worth at the time of the award default of the unpaid rent payable hereunder Rent and other charges which had been Landlord has earned at the date of such termination; plus
(b) The worth at the time of the award of the termination; and (2) any other reasonable amount by which the unpaid rent which would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all the detriment proximately caused by Tenant's ’s failure to perform its obligations hereunder under the Lease or which, which in the ordinary course of affairs, things would be likely to result therefrom; and
(e) At Landlord's election, including but not limited to, any cost or expenses Landlord incurs in maintaining or preserving the Leased Premises after such other amounts in addition to or in lieu default, the cost of recovering possession of the foregoing as may be permitted by applicable California law from time to time.
25.3 As used in subparagraphs (a) and (b) aboveLeased Premises, the "worth at the time expenses of reletting, including necessary renovation or alteration of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used Leased Premises, Landlord’s reasonable attorneys’ fees incurred in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefromconnection therewith, and any such property may be removed and stored in a public warehouse real estate commission paid or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 payable. If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord Tenant has not elected to terminate defaulted under this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the option of (i) retaking possession of the Leased Premises and recovering from Tenant the amount specified in this paragraph; (ii) maintaining Tenant’s right to make repairs to possession, in which case this Lease shall continue in effect whether or not Tenant has abandoned the Leased Premises and alterations of the Premises.
25.6 If in such event, Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, enforce all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord Landlord’s rights and remedies under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless Lease, including the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason the Rent and all other charges as they become due; (iii) pursuing any other remedy now or hereafter available to Landlord under the laws or judicial decisions of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything state in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Leasewhich the Leased Premises is located.
25.9 Subject only to Article 31, if Landlord c) Landlord’s exercise of any right or remedy shall retain an attorney for the purpose of collecting any rental due not prevent it from Tenant or enforcing exercising any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding right or action may have been filed or commencedremedy.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
Default and Remedies. 25.1 The occurrence A. Each of the following shall be deemed an event of default by Borrower (each, an “Event of Default”);
(1) If any representation or warranty of any of the following shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) Any failure by Tenant to pay when due Borrower Parties set forth in any of the Rent required to be paid by Tenant hereunder where such failure continues for five (5) business days after Tenant's receipt Loan Documents is false in any material respect when made, or if any of written notice that the same Borrower Parties renders any statement or account which is overdue;false in any material respect.
(b2) A failure by Tenant to observe and perform If any principal, interest or other monetary sum due under the Note, the Mortgage or any other provision of this Lease to be observed or performed by Tenant where such failure continues for thirty Loan Document is not paid within ten (301) days after written notice thereof from Landlordthe date when due; provided, that if however, notwithstanding the nature occurrence of such default is such that the same cannot with due diligence be cured within said periodan Event of Default, Tenant Lender shall not be deemed entitled to be in default if it exercise its rights and remedies set forth below unless and until Lender shall within said have given Borrower notice thereof and a period commence of ten (10) days from the delivery of such during and thereafter diligently prosecutes the same to completion;notice shall have elapsed without such Event of Default being cured.
(c3) Any default by Tenant under If Borrower fails to observe or perform any other lease between Landlord and Tenant for other premises in the Center;
(d) The abandonment or vacation of the Premisesother covenants, provided that conditions, or obligations of this Agreement; provided, however, if Tenant has vacated any such failure does not involve the Premises payment of any monetary sum, is not willful or intentional, does not place any rights or interest in collateral of Lender in immediate jeopardy, and is actively seeking within the reasonable power of Borrower to promptly cure after receipt of notice thereof, all as determined by Lender in its reasonable discretion, then such failure shall not constitute an Event of Default hereunder, unless otherwise expressly provided herein, unless and until Lender shall have given Borrower notice thereof and a subtenant period of 30 days shall have elapsed, during which period Borrower may correct or assigneecure such failure, no default upon failure of which an Event of Default shall be deemed to exist under this Lease so long have occurred hereunder without further notice or demand of any kind being required. If such failure cannot reasonably be cured within such 30-day period, as Tenant determined by Lender in its reasonable discretion, and Borrower is paying diligently pursuing a cure of such failure, then Borrower shall have a reasonable period to cure such failure beyond such 30-day period, which shall not exceed 90 days after receiving notice of the Rent required failure from Lender. If Borrower shall fail to be paid hereunder; and
(e) Any other event herein specified to be correct or cure such failure within such 90-day period, an Event of Default under this Leaseshall be deemed to have occurred hereunder without further notice or demand of any kind being required.
25.2 In (4) If any of the event Borrower Parties or Friendly Ice Cream Corporation becomes insolvent within the meaning of the Code, files or notifies Lender that it intends to file a petition under the Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, an “Action”), becomes the subject of either a petition under the Code or an Action, or is not generally paying its debts as the same become due.
(5) If there is an “Event of Default” or a breach or default by Borrower, after the passage of all applicable notice and cure or grace periods, under the Lease, any of the Other Agreements, or any other Loan Document.
(6) If a final, nonappealable judgment is rendered by a court against any of the Borrower Parties which (a) has a Material Adverse Effect on the operation of the Premises as a Permitted Concept, or (b) is in an amount greater than $100,000.00 and not covered by insurance, and, in either case, is not discharged or provision made for such discharge within 60 days from the date of entry of such judgment.
B. Upon the occurrence and during the continuance of an Event of Default, subject to the limitations set forth in subsection A, Lender may declare all or any part of the obligations of Borrower under the Note, this Agreement and any other Loan Document to be due and payable, and the same shall thereupon become due and payable without any presentment, demand, protest or notice of any Event kind except as otherwise expressly provided herein, and Borrower hereby waives notice of Default intent to accelerate the obligations secured by Tenant as aforesaidthe Mortgage and notice of acceleration. Thereafter, Lender may exercise, at its option, concurrently, successively or in addition to any and combination, all other remedies available to Landlord at law or in equity, Landlord including without limitation any one or more of the remedies available under the Note, the Mortgage or any other Loan Document. Neither the acceptance of this Agreement nor its enforcement shall have the prejudice or in any manner affect Lender’s right to immediately terminate realize upon or enforce any other security now or hereafter held by Lender, it being agreed that Lender shall be entitled to enforce this Lease Agreement and all rights of Tenant hereunder any other security now or hereafter held by giving written notice to Tenant of its election to do so. If Landlord shall elect to terminate this Lease, then Lender in such order and manner as it may recover from Tenant:
(a) The worth in its absolute discretion determine. No remedy herein conferred upon or reserved to Lender is intended to be exclusive of any other remedy given hereunder or now or hereafter existing at the time law or in equity or by statute. Every power or remedy given by any of the award of the unpaid rent payable hereunder Loan Documents to Lender, or to which had been earned at the date of such termination; plus
(b) The worth at the Lender may be otherwise entitled, may be exercised, concurrently or independently, from time of the award of the amount by which the unpaid rent which would have been earned after termination to time and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus
(c) The worth at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; plus
(d) Any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform its obligations hereunder or which, in the ordinary course of affairs, would likely result therefrom; and
(e) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as often as may be permitted deemed expedient by applicable California law from time to timeLender.
25.3 As used in subparagraphs (a) and (b) above, the "worth at the time of the award" is computed by allowing interest at the rate of twelve (12%) percent per annum (the "INTEREST RATE"). As used in subparagraph (c) above, the "worth at the time of the award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1%) percent.
25.4 Following the occurrence of an Event of Default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and remove all property and persons therefrom, and any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all in accordance with all Legal Requirements.
25.5 If Landlord (in accordance with California Civil Code Section 1951.4) shall elect to re-enter as above provided or shall take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, and if Landlord has not elected to terminate this Lease, Landlord may continue this Lease and may either recover all rental as it becomes due or relet the Premises or any part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable and shall have the right to make repairs to and alterations of the Premises.
25.6 If Landlord shall elect to relet as aforesaid, then rentals received by Landlord therefrom shall be applied as follows:
(a) to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder from Tenant;
(b) to the payment of all costs and expenses incurred by Landlord in connection with such reletting;
(c) to the payment of the cost of any alterations of and repairs to the Premises; and
(d) to the payment of rent due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above that which Tenant is obligated to pay hereunder. Should that portion of such rentals received from such reletting during any month, which is applied to the payment of rent hereunder, be less than the rent payable hereunder during that month by Tenant, then Tenant shall pay such deficiency to Landlord forthwith upon demand, and said deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand, all costs and expenses incurred by Landlord in connection with such reletting and in making any such alterations and repairs which are not covered by the rentals received from such reletting.
25.7 No re-entry or taking possession of the Premises by Landlord under this Article shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof be adjudged by a court of competent jurisdiction. Notwithstanding any reletting without termination by Landlord because of Tenant's default, Landlord may at any time after such reletting elect to terminate this Lease because of such default.
25.8 Nothing contained in this Article shall constitute a waiver of Landlord's right to recover damages by reason of Landlord's efforts to mitigate the damages to it caused by Tenant's default; nor shall anything in this Article adversely affect Landlord's right, as in this Lease elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Lease.
25.9 Subject only to Article 31, if Landlord shall retain an attorney for the purpose of collecting any rental due from Tenant or enforcing any other covenant of this Lease, Tenant shall pay the reasonable fees of such attorney for his services regardless of the fact that no legal proceeding or action may have been filed or commenced.
25.10 Any unpaid rent and any other sums due and payable hereunder by Tenant shall bear interest at the maximum lawful rate per annum from the due date and until payment thereof.
Appears in 1 contract
