Default by Tenant - Remedies of Landlord. a. The occurrence of any of the following events shall constitute a default by Tenant under this Lease: i. Failure to make due and punctual payment of rent or any other charges, assessments or amounts within five (5) days or when due or payable or required to be paid under this Lease; or ii. Material breach of any non-monetary term, covenant or condition of this Lease and failure to cure such breach within thirty (30) days after Tenant’s receipt of written notice, if such breach cannot reasonably be cured within the thirty (30) day period, Tenant shall not be in default if Tenant promptly commences to cure the default within the thirty (30) day period and diligently and in good faith continues to cure the default until completion, thereof by Landlord; or iii. Adjudication of Tenant as bankrupt or insolvent, or filing by or against Tenant of any petition in bankruptcy or for reorganization or for the adoption of any arrangement under the Bankruptcy Code that is not resolved within sixty (60) days; application is made for the appointment of receiver or conservator for Tenant’s business or property; or assignment by Tenant is made of its property for the benefit of its creditors; or Tenant’s interest in this Lease or any substantial amount of Tenant’s other real or personal property is levied or executed upon by process of law; or iv. Petition or other proceeding is made by or against Tenant for its dissolution or liquidation; or voluntary dissolution or liquidation of Tenant; or v. Failure by Tenant to timely take possession of the Leased Premises; or vi. The occurrence of any event or condition having a material and adverse effect on the assets, liabilities, financial condition, business or operations of Tenant as they exist on the date of this Lease, or the ability of Tenant to meet its obligations under this Lease on a timely basis as provided herein; or vii. Any representation or warranty by Tenant in this Lease or in any certificate, statement or other document furnished pursuant to or under this Lease, including, without limitation, financial statements, proves to be or becomes incorrect in any material respect. b. If Tenant shall default in the payment of rent or in the keeping of any of the terms, covenants or conditions of this Lease to be kept and/or performed by Tenant or shall otherwise commit any event of default as defined above, Landlord may upon the expiration of any applicable cure, immediately, or at any time thereafter, reenter the Leased Premises, remove all persons and property therefrom, without being liable to indictment, prosecution for damage therefore, or for forcible entry and detainer and repossess and enjoy the Leased Premises, together with all additions thereto or alterations and improvements thereof. Landlord may, at its option, at any time and from time to time thereafter, relet the Leased Premises or any part thereof for the account of Tenant or otherwise, and receive and collect the rents therefore and apply the same first to the payment of such expenses as Landlord may have incurred in recovering possession and for putting the same in good order and condition for re-rental, and expense, commissions and charges paid by Landlord in reletting the Leased Premises. Any such reletting may be for the remainder of the term of this Lease or for a longer or shorter period. In lieu of reletting such Leased Premises, Landlord may occupy the same or cause the same to be occupied by others. Unless Premises are relet, Tenant shall pay Landlord the rent and all other charges required to be paid by Tenant up to the time of the expiration of this Lease or such recovered possession, as the case may be and thereafter, Tenant, if required by Landlord, shall pay to Landlord until the end of the term of this Lease, the equivalent of the amount of all rent reserved herein and all other charges required to be paid by Tenant, less the net amount received by Landlord for such reletting, if any, unless waived by written notice from Landlord to Tenant. No action by Landlord to obtain possession of the Leased Premises and/or to recover any amount due to Landlord hereunder shall be taken as a waiver of Landlord’s right to require full and complete performance by Tenant of all terms hereof, including payment of all amounts due hereunder or as an election on the part of Landlord to terminate this Lease Agreement. If the Leased Premises are reoccupied by Landlord pursuant hereto, and regardless of whether the Leased Premises shall be relet or possessed by Landlord, all fixtures, additions, furniture, and the like then on the Leased Premises may be retained by Landlord. In the event Tenant is in default under the terms hereof beyond any applicable cure period and, by the sole determination of Landlord, has abandoned the Leased Premises, Landlord shall have the right to remove all Tenant’s property from the Leased Premises and dispose of said property in such a manner as determined best by Landlord, at the sole cost and expense of Tenant and without liability of Landlord for the actions so taken. c. In the event an assignment of Tenant’s business or property shall be made for the benefit of creditors, or, if Tenant’s leasehold interest under the terms of this Lease Agreement shall be levied upon by execution or seized by virtue of any writ of any court of law, or, if application be made for the appointment of a receiver for the business or property of Tenant, or, if a petition in bankruptcy shall be filed by or against Tenant, then and in any such case, at Landlord’s option, with or without notice, Landlord may terminate this Lease and immediately retake possession of the Leased Premises without the same working any forfeiture of the obligations of Tenant hereunder. d. In addition to all rights and remedies granted to Landlord by the terms hereof, Landlord shall have available any and all rights and remedies available at law or in equity, or under the statutes of the State of Colorado. No remedy herein or otherwise conferred upon or reserved to Landlord shall be considered exclusive of any other remedy but shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Further, all powers and remedies given by this Lease to Landlord may be exercised, from time to time, and as often as occasion may arise or as Landlord may deem expedient. No delay or omission of Landlord to exercise any right or power arising from any default shall impair any such right or power or shall be considered to be a waiver of any such default or acquiescence thereof. The acceptance of rent by Landlord shall not be deemed to be a waiver of any breach of any of the covenants herein contained or of any of the rights of Landlord to any remedies herein given. e. To the extent allowed by law, Tenant waives any obligation of Landlord to mitigate its damages, whether statutory or at common law. In the event Landlord undertakes to mitigate its damages, Landlord will satisfy any duty to mitigate as long as Landlord’s marketing activities related to the Leased Premises are substantially comparable to the marketing efforts Landlord has historically taken for similarly sized, situated and configured space in the Building. Landlord is not required to specially market the Leased Premises, send out any special fliers to the real estate brokerage community, take out any advertisements in magazines, newspapers or other periodicals, or to provide any leasing incentives, whether to potential tenants or their real estate broker. Landlord specifically has the right to lease other available space in the Building, preferentially to the Leased Premises and Tenant waives any obligation to do so.
Appears in 2 contracts
Samples: Lease Agreement (Advanced Energy Industries Inc), Lease Agreement (Advanced Energy Industries Inc)
Default by Tenant - Remedies of Landlord. a. The occurrence of any (a) Each of the following events shall constitute be deemed a default by Tenant under and a breach of this Lease:: (i) filing of a petition by Tenant for adjudication as a bankrupt or an adjudication as a bankrupt or for reorganization or for an arrangement under any federal or state statute, except a Chapter 11 Bankruptcy where rent is being paid and the terms of the Lease are being complied with; (ii) involuntary dissolution or liquidation of Tenant; (iii) appointment of a permanent receiver or a permanent trustee of all or substantially all the property of Tenant, if such appointment shall not be vacated within one hundred and twenty (120) days; (iv) taking possession of the property of Tenant by any governmental officer or agency pursuant to statutory authority for dissolution, rehabilitation, reorganization or liquidation of the Tenant if such taking of possession shall not be vacated within one hundred and twenty (120) days; (v) making by the Tenant of an assignment for the benefit of creditors. If any event mentioned in this subdivision (a) shall occur, Landlord may thereupon or at any time thereafter elect to cancel this Lease by thirty (30) days notice to the tenant in possession and this Lease shall terminate on the day in such notice specified with the same force and effect as if that date were the date herein fixed for the expiration of the term of the Lease.
i. Failure to make due and punctual (i) Default in the payment of the base rent reserved for a period of twenty (20) days after notice. In the event Tenant deducts from base rent or other charges hereunder such sums expended by Tenant to remedy defects or make repairs upon Landlord's failure to perform its obligations hereunder, such action by Tenant shall not be construed as a default in the payment of fixed rent or other charges hereunder.
(ii) A default in the performance of any other charges, assessments or amounts within five (5) days or when due or payable or required to be paid under this Lease; or
ii. Material breach of any non-monetary term, covenant or condition of this Lease and failure on the part of the Tenant to cure such breach within be performed for a period of thirty (30) days after Tenant’s receipt notice. For purposes of written noticethis subdivision (b) (ii) hereof, no default on the part of Tenant in performance of work required to be performed or acts to be done or conditions to be modified shall be deemed to exist if steps shall have been commenced by Tenant diligently after notice to rectify the same and shall be prosecuted to completion with reasonable diligence, subject, however, to unavoidable delays.
(c) In cases of any such default under Section 26(b) and at any time thereafter following the expiration of the respective grace periods above mentioned, Landlord may serve a notice upon the Tenant electing to terminate this Lease upon a specified date not less than twenty (20) days after the date of serving of such notice and this Lease shall then expire on the date so specified as if that date had been originally fixed as the expiration date of the term herein granted; however, a default under Section 26(b) hereof shall be deemed waived if such breach cannot reasonably default is cured before the date specified for termination in the notice of termination served on Tenant.
(i) a copy of the specified notices shall be cured within served upon the thirty original Tenant herein as well as the party entitled to possession, and (30ii) day period, Tenant shall not be in default if entitled to timely rectify any defaults occurring after such assignment or subletting. If Tenant promptly commences to cure the default within the thirty (30) day period and diligently and in good faith continues to cure the default until completion, thereof by Landlord; or
iii. Adjudication of Tenant as bankrupt or insolvent, or filing by or against Tenant of any petition in bankruptcy or for reorganization or for the adoption of any arrangement under the Bankruptcy Code that is not resolved within sixty (60) days; application is made for the appointment of receiver or conservator for Tenant’s business or property; or assignment by Tenant is made of its property for the benefit of its creditors; or Tenant’s interest in assigns this Lease or sublets the Premises, Landlord, when giving notice to said assignee or subtenant or any substantial amount future assignee or subtenant in respect of any default, shall also serve a copy of such notice upon the original Tenant (herein called the "Original Tenant’s other real or personal property "), and no notice of default shall be effective until a copy thereof is levied or executed upon by process of law; or
iv. Petition or other proceeding is made by or against Tenant for its dissolution or liquidation; or voluntary dissolution or liquidation of so given to the Original Tenant; or
v. Failure by Tenant to timely take possession of the Leased Premises; or
vi. The occurrence Original Tenant shall have the same period after receipt of any event or condition having a material and adverse effect on the assets, liabilities, financial condition, business or operations of such notice to cure such default as is given to Tenant as they exist on the date of therefor under this Lease, or the ability of Tenant to meet its obligations under . If this Lease on terminates or this Lease and the term hereof ceases and expires because of a timely basis as provided herein; or
vii. Any representation default of such assignee or warranty by Tenant in subtenant after an assignment of this Lease or in any certificatesublease shall have been made, statement or other document furnished pursuant Landlord shall promptly give to or under this Lease, including, without limitation, financial statements, proves to be or becomes incorrect in any material respect.
b. If the Original Tenant notice thereof; and the Original Tenant shall default in have the payment of rent or in the keeping of any of the terms, covenants or conditions of this Lease to be kept and/or performed by Tenant or shall otherwise commit any event of default as defined above, Landlord may upon the expiration of any applicable cure, immediately, or at any time thereafter, reenter the Leased Premises, remove all persons and property therefrom, without being liable to indictment, prosecution for damage therefore, or for forcible entry and detainer and repossess and enjoy the Leased Premises, together with all additions thereto or alterations and improvements thereof. Landlord may, at its option, at exercisable by the giving of notice by the Original Tenant to Landlord within ten (10) days after receipt by the Original Tenant of Landlord's notice, to cure any time default and from time to time thereafter, relet the Leased Premises or any part thereof for the account of become Tenant or otherwise, and receive and collect the rents therefore and apply the same first to the payment of such expenses as Landlord may have incurred in recovering possession and for putting the same in good order and condition for re-rental, and expense, commissions and charges paid by Landlord in reletting the Leased Premises. Any such reletting may be under a new lease for the remainder of the term of this Lease or for a longer or shorter period. In lieu (including any renewal periods) upon all of reletting the same terms and conditions as then remain under this Lease, and such Leased new lease shall commence on the date of termination of this Lease, except that if the Original Tenant is occupying less than ten percent (10%) of the Premises, Landlord may occupy deliver to the same Original Tenant, together with Landlord's notice, a release as to all future liability under this Lease.
(d) In case this Lease shall be terminated as hereinbefore provided, or cause by legal proceedings, Landlord or its agents may, immediately or any time thereafter, re-renter and resume possession of the same Premises or such part thereof, and remove all persons and property therefrom, by a suitable action or proceeding at law. No re-entry by Landlord shall be deemed an acceptance of a surrender of this Lease.
(e) In case this Lease shall be terminated as hereinbefore provided, Landlord shall, in its own name but as agent for Tenant, if the Lease be not terminated, or if the Lease be terminated in its own behalf, use its best efforts to mitigate its damages and relet the whole or any portion of the Premises for any sum which may be occupied reasonable, giving due consideration to the rents reserved herein and in connection with any such lease, Landlord may make such changes in the character of the improvements on the Premises as may be appropriate or helpful in effecting such lease. Landlord shall not in any event be required to pay Tenant any surplus of any sums received by others. Unless Landlord on a reletting of the Premises are reletin excess of the rent reserved in this Lease.
(f) In case this Lease be terminated as provided in Section 26(c), subject to rebuttal by Tenant, Landlord shall be entitled to recover from the Tenant, the following: (i) a sum equal to all reasonable expenses, if any, including reasonable counsel fees, incurred by Landlord in recovering possession of the Premises, and all reasonable costs and charges for the care of said Premises while vacant, which damages, less the avails of reletting, shall be due and payable by Tenant to Landlord; and (ii) a sum equal to the amount of all rent and other charges reserved under this Lease which shall pay be due and payable by Tenant to Landlord on the several days on which the rent and all other charges required to be paid by Tenant up to reserved in this Lease would have become due and payable, less the time greater of (1) the fair rental value of the expiration of this Lease Premises, or such recovered possession, as (2) the case may be and thereafter, Tenantnet rent, if required any, collected by LandlordLandlord on reletting the Premises; that is, upon each of such days Tenant shall pay to Landlord the amount of deficiency then existing after receipt of credit for the fair rental value or net rent collected by Landlord. Any excess amounts of rent collected by Landlord shall be credited against future rent. Such net rent collected on reletting shall be computed by deducting from the gross rents collected all necessary expenses incurred in connection with reletting of the Premises or any part thereof, including reasonable brokers' commissions.
(g) Separate actions may be maintained by Landlord against Tenant from time to time to recover any damages which, at the commencement of any such action, have then or theretofore become due and payable to the Landlord under this Section 26 without waiting until the end of the term of this Lease, the equivalent of the amount of all rent reserved herein and all other charges required to be paid by Tenant, less the net amount received by Landlord for such reletting, if any, unless waived by written notice from Landlord to Tenant. No action by Landlord to obtain possession of the Leased Premises and/or to recover any amount due to Landlord hereunder shall be taken as a waiver of Landlord’s right to require full and complete performance by Tenant of all terms hereof, including payment of all amounts due hereunder or as an election on the part of Landlord to terminate this Lease Agreement. If the Leased Premises are reoccupied by Landlord pursuant hereto, and regardless of whether the Leased Premises shall be relet or possessed by Landlord, all fixtures, additions, furniture, and the like then on the Leased Premises may be retained by Landlord. In the event Tenant is in default under the terms hereof beyond any applicable cure period and, by the sole determination of Landlord, has abandoned the Leased Premises, Landlord shall have the right to remove all Tenant’s property from the Leased Premises and dispose of said property in such a manner as determined best by Landlord, at the sole cost and expense of Tenant and without liability of Landlord for the actions so takencurrent term.
c. In the event an assignment of Tenant’s business or property shall be made for the benefit of creditors, or, if Tenant’s leasehold interest under the terms of this Lease Agreement shall be levied upon by execution or seized by virtue of any writ of any court of law, or, if application be made for the appointment of a receiver for the business or property of Tenant, or, if a petition in bankruptcy shall be filed by or against Tenant, then and in any such case, at Landlord’s option, with or without notice, Landlord may terminate this Lease and immediately retake possession of the Leased Premises without the same working any forfeiture of the obligations of Tenant hereunder.
d. In addition to all rights and remedies granted to Landlord by the terms hereof, Landlord shall have available any and all rights and remedies available at law or in equity, or under the statutes of the State of Colorado. No remedy herein or otherwise conferred upon or reserved to Landlord shall be considered exclusive of any other remedy but shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Further, all powers and remedies given by this Lease to Landlord may be exercised, from time to time, and as often as occasion may arise or as Landlord may deem expedient. No delay or omission of Landlord to exercise any right or power arising from any default shall impair any such right or power or shall be considered to be a waiver of any such default or acquiescence thereof. The acceptance of rent by Landlord shall not be deemed to be a waiver of any breach of any of the covenants herein contained or of any of the rights of Landlord to any remedies herein given.
e. To the extent allowed by law, Tenant waives any obligation of Landlord to mitigate its damages, whether statutory or at common law. In the event Landlord undertakes to mitigate its damages, Landlord will satisfy any duty to mitigate as long as Landlord’s marketing activities related to the Leased Premises are substantially comparable to the marketing efforts Landlord has historically taken for similarly sized, situated and configured space in the Building. Landlord is not required to specially market the Leased Premises, send out any special fliers to the real estate brokerage community, take out any advertisements in magazines, newspapers or other periodicals, or to provide any leasing incentives, whether to potential tenants or their real estate broker. Landlord specifically has the right to lease other available space in the Building, preferentially to the Leased Premises and Tenant waives any obligation to do so.
Appears in 1 contract
Samples: Lease Agreement (Value City Department Stores Inc /Oh)
Default by Tenant - Remedies of Landlord. a. The occurrence of any (a) Each of the following events shall constitute be deemed a default by Tenant under and a breach of this Lease:: (i) filing of a petition by Tenant for adjudication as a bankrupt or an adjudication as a bankrupt or for reorganization or for an arrangement under any federal or state statute, except a Chapter 11 Bankruptcy where rent is being paid and the terms of the Lease are being complied with; (ii) involuntary dissolution or liquidation of Tenant; (iii) appointment of a permanent receiver or a permanent trustee of all or substantially all the property of Tenant, if such appointment shall not be vacated within one hundred and twenty (120) days; (iv) taking possession of the property of Tenant by any governmental officer or agency pursuant to statutory authority for dissolution, rehabilitation, reorganization or liquidation of the Tenant if such taking of possession shall not be vacated within one hundred and twenty (120) days; (v) making by the Tenant of an assignment for the benefit of creditors. If any event mentioned in this subdivision (a) shall occur, Landlord may thereupon or at any time thereafter elect to cancel this Lease by thirty (30) days notice to the tenant in possession and this Lease shall terminate on the day in such notice specified with the same force and effect as if that date were the date herein fixed for the expiration of the term of the Lease.
i. Failure to make due and punctual (i) Default in the payment of the base rent reserved for a period of twenty (20) days after notice. In the event Tenant deducts from base rent or other charges hereunder such sums expended by Tenant to remedy defects or make repairs upon Landlord's failure to perform its obligations hereunder, such action by Tenant shall not be construed as a default in the payment of fixed rent or other charges hereunder.
(ii) A default in the performance of any other charges, assessments or amounts within five (5) days or when due or payable or required to be paid under this Lease; or
ii. Material breach of any non-monetary term, covenant or condition of this Lease and failure on the part of the Tenant to cure such breach within be performed for a period of thirty (30) days after Tenant’s receipt notice. For purposes of written noticethis subdivision (b) (ii) hereof, no default on the part of Tenant in performance of work required to be performed or acts to be done or conditions to be modified shall be deemed to exist if steps shall have been commenced by Tenant diligently after notice to rectify the same and shall be prosecuted to completion with reasonable diligence, subject, however, to unavoidable delays.
(c) In cases of any such default under Section 26(b) and at any time thereafter following the expiration of the respective grace periods above mentioned, Landlord may serve a notice upon the Tenant electing to terminate this Lease upon a specified date not less than twenty (20) days after the date of serving of such notice and this Lease shall then expire on the date so specified as if that date had been originally fixed as the expiration date of the term herein granted; however, a default under Section 26(b) hereof shall be deemed waived if such breach cannot reasonably default is cured before the date specified for termination in the notice of termination served on Tenant.
(i) a copy of the specified notices shall be cured within served upon the thirty original Tenant herein as well as the parry entitled to possession, and (30ii) day period, Tenant shall not be in default if entitled to timely rectify any defaults occurring after such assignment or subletting. If Tenant promptly commences to cure the default within the thirty (30) day period and diligently and in good faith continues to cure the default until completion, thereof by Landlord; or
iii. Adjudication of Tenant as bankrupt or insolvent, or filing by or against Tenant of any petition in bankruptcy or for reorganization or for the adoption of any arrangement under the Bankruptcy Code that is not resolved within sixty (60) days; application is made for the appointment of receiver or conservator for Tenant’s business or property; or assignment by Tenant is made of its property for the benefit of its creditors; or Tenant’s interest in assigns this Lease or sublets the Premises, Landlord, when giving notice to said assignee or subtenant or any substantial amount future assignee or subtenant in respect of any default, shall also serve a copy of such notice upon the original Tenant (herein called the "Original Tenant’s other real or personal property "), and no notice of default shall be effective until a copy thereof is levied or executed upon by process of law; or
iv. Petition or other proceeding is made by or against Tenant for its dissolution or liquidation; or voluntary dissolution or liquidation of so given to the Original Tenant; or
v. Failure by Tenant to timely take possession of the Leased Premises; or
vi. The occurrence Original Tenant shall have the same period after receipt of any event or condition having a material and adverse effect on the assets, liabilities, financial condition, business or operations of such notice to cure such default as is given to Tenant as they exist on the date of therefor under this Lease, or the ability of Tenant to meet its obligations under . If this Lease on terminates or this Lease and the term hereof ceases and expires because of a timely basis as provided herein; or
vii. Any representation default of such assignee or warranty by Tenant in subtenant after an assignment of this Lease or in any certificatesublease shall have been made, statement or other document furnished pursuant Landlord shall promptly give to or under this Lease, including, without limitation, financial statements, proves to be or becomes incorrect in any material respect.
b. If the Original Tenant notice thereof; and the Original Tenant shall default in have the payment of rent or in the keeping of any of the terms, covenants or conditions of this Lease to be kept and/or performed by Tenant or shall otherwise commit any event of default as defined above, Landlord may upon the expiration of any applicable cure, immediately, or at any time thereafter, reenter the Leased Premises, remove all persons and property therefrom, without being liable to indictment, prosecution for damage therefore, or for forcible entry and detainer and repossess and enjoy the Leased Premises, together with all additions thereto or alterations and improvements thereof. Landlord may, at its option, at exercisable by the giving of notice by the Original Tenant to Landlord within ten (10) days after receipt by the Original Tenant of Landlord's notice, to cure any time default and from time to time thereafter, relet the Leased Premises or any part thereof for the account of become Tenant or otherwise, and receive and collect the rents therefore and apply the same first to the payment of such expenses as Landlord may have incurred in recovering possession and for putting the same in good order and condition for re-rental, and expense, commissions and charges paid by Landlord in reletting the Leased Premises. Any such reletting may be under a new lease for the remainder of the term of this Lease or for a longer or shorter period. In lieu (including any renewal periods) upon all of reletting the same terms and conditions as then remain under this Lease, and such Leased new lease shall commence on the date of termination of this Lease, except that if the Original Tenant is occupying less than ten percent (10%) of the Premises, Landlord may occupy deliver to the same Original Tenant, together with Landlord's notice, a release as to all future liability under this Lease.
(d) In case this Lease shall be terminated as hereinbefore provided, or cause by legal proceedings, Landlord or its agents may, immediately or any time thereafter, re-renter and resume possession of the same Premises or such part thereof, and remove all persons and property therefrom, by a suitable action or proceeding at law. No re-entry by Landlord shall be deemed an acceptance of a surrender of this Lease.
(e) In case this Lease shall be terminated as hereinbefore provided, Landlord shall, in its own name but as agent for Tenant, if the Lease be not terminated, or if the Lease be terminated in its own behalf, use its best efforts to mitigate its damages and relet the whole or any portion of the Premises for any sum which may be occupied reasonable, giving due consideration to the rents reserved herein and in connection with any such lease, Landlord may make such changes in the character of the improvements on the Premises as may be appropriate or helpful in effecting such lease. Landlord shall not in any event be required to pay Tenant any surplus of any sums received by others. Unless Landlord on a reletting of the Premises are reletin excess of the rent reserved in this Lease.
(f) In case this Lease be terminated as provided in Section 26(c), subject to rebuttal by Tenant, Landlord shall be entitled to recover from the Tenant, the following: (i) a sum equal to all reasonable expenses, if any, including reasonable counsel fees, incurred by Landlord in recovering possession of the Premises, and all reasonable costs and charges for the care of said Premises while vacant, which damages, less the avails of reletting, shall be due and payable by Tenant to Landlord; and (ii) a sum equal to the amount of all rent and other charges reserved under this Lease which shall pay be due and payable by Tenant to Landlord on the several days on which the rent and all other charges required to be paid by Tenant up to reserved in this Lease would have become due and payable, less the time greater of (1) the fair rental value of the expiration of this Lease Premises, or such recovered possession, as (2) the case may be and thereafter, Tenantnet rent, if required any, collected by LandlordLandlord on reletting the Premises; that is, upon each of such days Tenant shall pay to Landlord the amount of deficiency then existing after receipt of credit for the fair rental value or net rent collected by Landlord. Any excess amounts of rent collected by Landlord shall be credited against future rent. Such net rent collected on reletting shall be computed by deducting from the gross rents collected all necessary expenses incurred in connection with reletting of the Premises or any part thereof, including reasonable brokers' commissions.
(g) Separate actions may be maintained by Landlord against Tenant from time to time to recover any damages which, at the commencement of any such action, have then or theretofore become due and payable to the Landlord under this Section 26 without waiting until the end of the term of this Lease, the equivalent of the amount of all rent reserved herein and all other charges required to be paid by Tenant, less the net amount received by Landlord for such reletting, if any, unless waived by written notice from Landlord to Tenant. No action by Landlord to obtain possession of the Leased Premises and/or to recover any amount due to Landlord hereunder shall be taken as a waiver of Landlord’s right to require full and complete performance by Tenant of all terms hereof, including payment of all amounts due hereunder or as an election on the part of Landlord to terminate this Lease Agreement. If the Leased Premises are reoccupied by Landlord pursuant hereto, and regardless of whether the Leased Premises shall be relet or possessed by Landlord, all fixtures, additions, furniture, and the like then on the Leased Premises may be retained by Landlord. In the event Tenant is in default under the terms hereof beyond any applicable cure period and, by the sole determination of Landlord, has abandoned the Leased Premises, Landlord shall have the right to remove all Tenant’s property from the Leased Premises and dispose of said property in such a manner as determined best by Landlord, at the sole cost and expense of Tenant and without liability of Landlord for the actions so takencurrent term.
c. In the event an assignment of Tenant’s business or property shall be made for the benefit of creditors, or, if Tenant’s leasehold interest under the terms of this Lease Agreement shall be levied upon by execution or seized by virtue of any writ of any court of law, or, if application be made for the appointment of a receiver for the business or property of Tenant, or, if a petition in bankruptcy shall be filed by or against Tenant, then and in any such case, at Landlord’s option, with or without notice, Landlord may terminate this Lease and immediately retake possession of the Leased Premises without the same working any forfeiture of the obligations of Tenant hereunder.
d. In addition to all rights and remedies granted to Landlord by the terms hereof, Landlord shall have available any and all rights and remedies available at law or in equity, or under the statutes of the State of Colorado. No remedy herein or otherwise conferred upon or reserved to Landlord shall be considered exclusive of any other remedy but shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Further, all powers and remedies given by this Lease to Landlord may be exercised, from time to time, and as often as occasion may arise or as Landlord may deem expedient. No delay or omission of Landlord to exercise any right or power arising from any default shall impair any such right or power or shall be considered to be a waiver of any such default or acquiescence thereof. The acceptance of rent by Landlord shall not be deemed to be a waiver of any breach of any of the covenants herein contained or of any of the rights of Landlord to any remedies herein given.
e. To the extent allowed by law, Tenant waives any obligation of Landlord to mitigate its damages, whether statutory or at common law. In the event Landlord undertakes to mitigate its damages, Landlord will satisfy any duty to mitigate as long as Landlord’s marketing activities related to the Leased Premises are substantially comparable to the marketing efforts Landlord has historically taken for similarly sized, situated and configured space in the Building. Landlord is not required to specially market the Leased Premises, send out any special fliers to the real estate brokerage community, take out any advertisements in magazines, newspapers or other periodicals, or to provide any leasing incentives, whether to potential tenants or their real estate broker. Landlord specifically has the right to lease other available space in the Building, preferentially to the Leased Premises and Tenant waives any obligation to do so.
Appears in 1 contract
Default by Tenant - Remedies of Landlord. a. The occurrence of any (a) Each of the following events shall constitute be deemed a default by Tenant under and a breach of this Lease:: (i) filing of a petition by Tenant for adjudication as a bankrupt or an adjudication as a bankrupt or for reorganization or for an arrangement under any federal or state statute, except a Chapter 11 Bankruptcy where rent is being paid and the terms of the Lease are being complied with; (ii) involuntary dissolution or liquidation of Tenant; (iii) appointment of a permanent receiver or a permanent trustee of all or substantially all the property of Tenant, if such appointment shall not be vacated within one hundred and twenty (120) days; (iv) taking possession of the property of Tenant by any governmental officer or agency pursuant to statutory authority for dissolution, rehabilitation, reorganization or liquidation of the Tenant if such taking of possession shall not be vacated within one hundred and twenty (120) days; (v) making by the Tenant of an assignment for the benefit of creditors. If any event mentioned in this subdivision (a) shall occur, Landlord may thereupon or at any time thereafter elect to cancel this Lease by thirty (30) days notice to the tenant in possession and this Lease shall terminate on the day in such notice specified with the same force and effect as if that date were the date herein fixed for the expiration of the term of the Lease.
i. Failure to make due and punctual (i) Default in the payment of the base rent reserved for a period of twenty (20) days after notice. In the event Tenant deducts from base rent or other charges hereunder such sums expended by Tenant to remedy defects or make repairs upon Landlord's failure to perform its obligations hereunder, such action by Tenant shall not be construed as a default in the payment of fixed rent or other charges hereunder.
(ii) A default in the performance of any other charges, assessments or amounts within five (5) days or when due or payable or required to be paid under this Lease; or
ii. Material breach of any non-monetary term, covenant or condition of this Lease and failure on the part of the Tenant to cure such breach within be performed for a period of thirty (30) days after Tenant’s receipt of written notice, if such breach cannot reasonably be cured within the thirty (30) day period, Tenant shall not be in default if Tenant promptly commences to cure the default within the thirty (30) day period and diligently and in good faith continues to cure the default until completion, thereof by Landlord; or
iii. Adjudication of Tenant as bankrupt or insolvent, or filing by or against Tenant of any petition in bankruptcy or for reorganization or for the adoption of any arrangement under the Bankruptcy Code that is not resolved within sixty (60) days; application is made for the appointment of receiver or conservator for Tenant’s business or property; or assignment by Tenant is made of its property for the benefit of its creditors; or Tenant’s interest in this Lease or any substantial amount of Tenant’s other real or personal property is levied or executed upon by process of law; or
iv. Petition or other proceeding is made by or against Tenant for its dissolution or liquidation; or voluntary dissolution or liquidation of Tenant; or
v. Failure by Tenant to timely take possession of the Leased Premises; or
vi. The occurrence of any event or condition having a material and adverse effect on the assets, liabilities, financial condition, business or operations of Tenant as they exist on the date For purposes of this Lease, or the ability of Tenant to meet its obligations under this Lease on a timely basis as provided herein; or
vii. Any representation or warranty by Tenant in this Lease or in any certificate, statement or other document furnished pursuant to or under this Lease, including, without limitation, financial statements, proves to be or becomes incorrect in any material respect.
b. If Tenant shall default in the payment of rent or in the keeping of any of the terms, covenants or conditions of this Lease to be kept and/or performed by Tenant or shall otherwise commit any event of default as defined above, Landlord may upon the expiration of any applicable cure, immediately, or at any time thereafter, reenter the Leased Premises, remove all persons and property therefrom, without being liable to indictment, prosecution for damage therefore, or for forcible entry and detainer and repossess and enjoy the Leased Premises, together with all additions thereto or alterations and improvements thereof. Landlord may, at its option, at any time and from time to time thereafter, relet the Leased Premises or any part thereof for the account of Tenant or otherwise, and receive and collect the rents therefore and apply the same first to the payment of such expenses as Landlord may have incurred in recovering possession and for putting the same in good order and condition for re-rental, and expense, commissions and charges paid by Landlord in reletting the Leased Premises. Any such reletting may be for the remainder of the term of this Lease or for a longer or shorter period. In lieu of reletting such Leased Premises, Landlord may occupy the same or cause the same to be occupied by others. Unless Premises are relet, Tenant shall pay Landlord the rent and all other charges required to be paid by Tenant up to the time of the expiration of this Lease or such recovered possession, as the case may be and thereafter, Tenant, if required by Landlord, shall pay to Landlord until the end of the term of this Lease, the equivalent of the amount of all rent reserved herein and all other charges required to be paid by Tenant, less the net amount received by Landlord for such reletting, if any, unless waived by written notice from Landlord to Tenant. No action by Landlord to obtain possession of the Leased Premises and/or to recover any amount due to Landlord hereunder shall be taken as a waiver of Landlord’s right to require full and complete performance by Tenant of all terms subdivision (b) (ii) hereof, including payment of all amounts due hereunder or as an election no default on the part of Landlord to terminate this Lease Agreement. If the Leased Premises are reoccupied by Landlord pursuant hereto, and regardless Tenant in performance of whether the Leased Premises shall be relet or possessed by Landlord, all fixtures, additions, furniture, and the like then on the Leased Premises may be retained by Landlord. In the event Tenant is in default under the terms hereof beyond any applicable cure period and, by the sole determination of Landlord, has abandoned the Leased Premises, Landlord shall have the right to remove all Tenant’s property from the Leased Premises and dispose of said property in such a manner as determined best by Landlord, at the sole cost and expense of Tenant and without liability of Landlord for the actions so taken.
c. In the event an assignment of Tenant’s business or property shall be made for the benefit of creditors, or, if Tenant’s leasehold interest under the terms of this Lease Agreement shall be levied upon by execution or seized by virtue of any writ of any court of law, or, if application be made for the appointment of a receiver for the business or property of Tenant, or, if a petition in bankruptcy shall be filed by or against Tenant, then and in any such case, at Landlord’s option, with or without notice, Landlord may terminate this Lease and immediately retake possession of the Leased Premises without the same working any forfeiture of the obligations of Tenant hereunder.
d. In addition to all rights and remedies granted to Landlord by the terms hereof, Landlord shall have available any and all rights and remedies available at law or in equity, or under the statutes of the State of Colorado. No remedy herein or otherwise conferred upon or reserved to Landlord shall be considered exclusive of any other remedy but shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Further, all powers and remedies given by this Lease to Landlord may be exercised, from time to time, and as often as occasion may arise or as Landlord may deem expedient. No delay or omission of Landlord to exercise any right or power arising from any default shall impair any such right or power or shall be considered work required to be a waiver of any such default performed or acquiescence thereof. The acceptance of rent by Landlord shall not be deemed acts to be a waiver of any breach of any of the covenants herein contained or of any of the rights of Landlord to any remedies herein given.
e. To the extent allowed by law, Tenant waives any obligation of Landlord to mitigate its damages, whether statutory or at common law. In the event Landlord undertakes to mitigate its damages, Landlord will satisfy any duty to mitigate as long as Landlord’s marketing activities related to the Leased Premises are substantially comparable to the marketing efforts Landlord has historically taken for similarly sized, situated and configured space in the Building. Landlord is not required to specially market the Leased Premises, send out any special fliers to the real estate brokerage community, take out any advertisements in magazines, newspapers or other periodicals, or to provide any leasing incentives, whether to potential tenants or their real estate broker. Landlord specifically has the right to lease other available space in the Building, preferentially to the Leased Premises and Tenant waives any obligation to do so.done
Appears in 1 contract
Samples: Lease Agreement (Value City Department Stores Inc /Oh)
Default by Tenant - Remedies of Landlord. a. The occurrence of any (a) Each of the following events shall constitute be deemed a default by Tenant under and a breach of this Lease:: (i) filing of a petition by Tenant for adjudication as a bankrupt or an adjudication as a bankrupt or for reorganization or for an arrangement under any federal or state statute, except a Chapter 11 Bankruptcy where rent is being paid and the terms of the Lease are being complied with; (ii) involuntary dissolution or liquidation of Tenant; (iii) appointment of a permanent receiver or a permanent trustee of all or substantially all the property of Tenant, if such appointment shall not be vacated within one hundred and twenty (120) days; (iv) taking possession of the property of Tenant by any governmental officer or agency pursuant to statutory authority for dissolution, rehabilitation, reorganization or liquidation of the Tenant if such taking of possession shall not be vacated within one hundred and twenty (120) days; (v) making by the Tenant of an assignment for the benefit of creditors. If any event mentioned in this subdivision (a) shall occur, Landlord may thereupon or at any time thereafter elect to cancel this Lease by thirty (30) days notice to the tenant in possession and this Lease shall terminate on the day in such notice specified with the same force and effect as if that date were the date herein fixed for the expiration of the term of the Lease.
i. Failure to make due and punctual (i) Default in the payment of the base rent reserved for a period of twenty (20) days after notice. In the event Tenant deducts from base rent or other charges hereunder such sums expended by Tenant to remedy defects or make repairs upon Landlord's failure to perform its obligations hereunder, such action by Tenant shall not be construed as a default in the payment of fixed rent or other charges hereunder.
(ii) A default in the performance of any other charges, assessments or amounts within five (5) days or when due or payable or required to be paid under this Lease; or
ii. Material breach of any non-monetary term, covenant or condition of this Lease and failure on the part of the Tenant to cure such breach within be performed for a period of thirty (30) days after Tenant’s receipt notice. For purposes of written noticethis subdivision (b) (ii) hereof, no default on the part of Tenant in performance of work required to be performed or acts to be done or conditions to be modified shall be deemed to exist if steps shall have been commenced by Tenant diligently after notice to rectify the same and shall be prosecuted to completion with reasonable diligence, subject, however, to unavoidable delays.
(c) In cases of any such default under Section (b) and at any time thereafter following the expiration of the respective grace periods above mentioned, Landlord may serve a notice upon the Tenant electing to terminate this Lease upon a specified date not less than twenty (20) days after the date of serving of such notice and this Lease shall then expire on the date so specified as if that date had been originally fixed as the expiration date of the term herein granted; however, a default under Section (b) hereof shall be deemed waived if such breach cannot reasonably default is cured before the date specified for termination in the notice of termination served on Tenant.
(i) a copy of the specified notices shall be cured within served upon the thirty original Tenant herein as well as the party entitled to possession, and (30ii) day period, Tenant shall not be in default if entitled to timely rectify any defaults occurring after such assignment or subletting. If Tenant promptly commences to cure the default within the thirty (30) day period and diligently and in good faith continues to cure the default until completion, thereof by Landlord; or
iii. Adjudication of Tenant as bankrupt or insolvent, or filing by or against Tenant of any petition in bankruptcy or for reorganization or for the adoption of any arrangement under the Bankruptcy Code that is not resolved within sixty (60) days; application is made for the appointment of receiver or conservator for Tenant’s business or property; or assignment by Tenant is made of its property for the benefit of its creditors; or Tenant’s interest in assigns this Lease or sublets the Premises, Landlord, when giving notice to said assignee or subtenant or any substantial amount future assignee or subtenant in respect of any default, shall also serve a copy of such notice upon the original Tenant (herein called the "Original Tenant’s other real or personal property "), and no notice of default shall be effective until a copy thereof is levied or executed upon by process of law; or
iv. Petition or other proceeding is made by or against Tenant for its dissolution or liquidation; or voluntary dissolution or liquidation of so given to the Original Tenant; or
v. Failure by Tenant to timely take possession of the Leased Premises; or
vi. The occurrence Original Tenant shall have the same period after receipt of any event or condition having a material and adverse effect on the assets, liabilities, financial condition, business or operations of such notice to cure such default as is given to Tenant as they exist on the date of therefor under this Lease, or the ability of Tenant to meet its obligations under . If this Lease on terminates or this Lease and the term hereof ceases and expires because of a timely basis as provided herein; or
vii. Any representation default of such assignee or warranty by Tenant in subtenant after an assignment of this Lease or in any certificatesublease shall have been made, statement or other document furnished pursuant Landlord shall promptly give to or under this Lease, including, without limitation, financial statements, proves to be or becomes incorrect in any material respect.
b. If the Original Tenant notice thereof; and the Original Tenant shall default in have the payment of rent or in the keeping of any of the terms, covenants or conditions of this Lease to be kept and/or performed by Tenant or shall otherwise commit any event of default as defined above, Landlord may upon the expiration of any applicable cure, immediately, or at any time thereafter, reenter the Leased Premises, remove all persons and property therefrom, without being liable to indictment, prosecution for damage therefore, or for forcible entry and detainer and repossess and enjoy the Leased Premises, together with all additions thereto or alterations and improvements thereof. Landlord may, at its option, at exercisable by the giving of notice by the Original Tenant to Landlord within ten (10) days after receipt by the Original Tenant of Landlord's notice, to cure any time default and from time to time thereafter, relet the Leased Premises or any part thereof for the account of become Tenant or otherwise, and receive and collect the rents therefore and apply the same first to the payment of such expenses as Landlord may have incurred in recovering possession and for putting the same in good order and condition for re-rental, and expense, commissions and charges paid by Landlord in reletting the Leased Premises. Any such reletting may be under a new lease for the remainder of the term of this Lease or for a longer or shorter period. In lieu (including any renewal periods) upon all of reletting the same terms and conditions as then remain under this Lease, and such Leased new lease shall commence on the date of termination of this Lease, except that if the Original Tenant is occupying less than ten percent (10%) of the Premises, Landlord may occupy deliver to the same Original Tenant, together with Landlord's notice, a release as to all future liability under this Lease.
(d) In case this Lease shall be terminated as hereinbefore provided, or cause by legal proceedings, Landlord or its agents may, immediately or any time thereafter, re-renter and resume possession of the same Premises or such part thereof, and remove all persons and property therefrom, by a suitable action or proceeding at law. No re-entry by Landlord shall be deemed an acceptance of a surrender of this Lease.
(e) In case this Lease shall be terminated as hereinbefore provided, Landlord shall, in its own name but as agent for Tenant, if the Lease be not terminated, or if the Lease be terminated in its own behalf, use its best efforts to mitigate its damages and relet the whole or any portion of the Premises for any sum which may be occupied reasonable, giving due consideration to the rents reserved herein and in connection with any such lease. Landlord may make such changes in the character of the improvements on the Premises as may be appropriate or helpful in effecting such lease. Landlord shall not in any event be required to pay Tenant any surplus of any sums received by others. Unless Landlord on a reletting of the Premises are reletin excess of the rent reserved in this Lease.
(f) In case this Lease be terminated as provided in Section (c), subject to rebuttal by Tenant, Landlord shall be entitled to recover from the Tenant, the following: (i) a sum equal to all reasonable expenses, if any, including reasonable counsel fees, incurred by Landlord in recovering possession of the Premises, and all reasonable costs and charges for the care of said Premises while vacant, which damages, less the avails of reletting, shall be due and payable by Tenant to Landlord; and (ii) a sum equal to the amount of all rent and other charges reserved under this Lease which shall pay be due and payable by Tenant to Landlord on the several days on which the rent and all other charges required to be paid by Tenant up to reserved in this Lease would have become due and payable, less the time greater of (1) the fair rental value of the expiration of this Lease Premises, or such recovered possession, as (2) the case may be and thereafter, Tenantnet rent, if required any, collected by LandlordLandlord on reletting the Premises; that is, upon each of such days Tenant shall pay to Landlord the amount of deficiency then existing after receipt of credit for the fair rental value or net rent collected by Landlord. Any excess amounts of rent collected by Landlord shall be credited against future rent. Such net rent collected on reletting shall be computed by deducting from the gross rents collected all necessary expenses incurred in connection with reletting of the Premises or any part thereof, including reasonable brokers' commissions.
(g) Separate actions may be maintained by Landlord against Tenant from time to time to recover any damages which, at the commencement of any such action, have then or theretofore become due and payable to the Landlord under this Section without waiting until the end of the term of this Lease, the equivalent of the amount of all rent reserved herein and all other charges required to be paid by Tenant, less the net amount received by Landlord for such reletting, if any, unless waived by written notice from Landlord to Tenant. No action by Landlord to obtain possession of the Leased Premises and/or to recover any amount due to Landlord hereunder shall be taken as a waiver of Landlord’s right to require full and complete performance by Tenant of all terms hereof, including payment of all amounts due hereunder or as an election on the part of Landlord to terminate this Lease Agreement. If the Leased Premises are reoccupied by Landlord pursuant hereto, and regardless of whether the Leased Premises shall be relet or possessed by Landlord, all fixtures, additions, furniture, and the like then on the Leased Premises may be retained by Landlord. In the event Tenant is in default under the terms hereof beyond any applicable cure period and, by the sole determination of Landlord, has abandoned the Leased Premises, Landlord shall have the right to remove all Tenant’s property from the Leased Premises and dispose of said property in such a manner as determined best by Landlord, at the sole cost and expense of Tenant and without liability of Landlord for the actions so takencurrent term.
c. In the event an assignment of Tenant’s business or property shall be made for the benefit of creditors, or, if Tenant’s leasehold interest under the terms of this Lease Agreement shall be levied upon by execution or seized by virtue of any writ of any court of law, or, if application be made for the appointment of a receiver for the business or property of Tenant, or, if a petition in bankruptcy shall be filed by or against Tenant, then and in any such case, at Landlord’s option, with or without notice, Landlord may terminate this Lease and immediately retake possession of the Leased Premises without the same working any forfeiture of the obligations of Tenant hereunder.
d. In addition to all rights and remedies granted to Landlord by the terms hereof, Landlord shall have available any and all rights and remedies available at law or in equity, or under the statutes of the State of Colorado. No remedy herein or otherwise conferred upon or reserved to Landlord shall be considered exclusive of any other remedy but shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Further, all powers and remedies given by this Lease to Landlord may be exercised, from time to time, and as often as occasion may arise or as Landlord may deem expedient. No delay or omission of Landlord to exercise any right or power arising from any default shall impair any such right or power or shall be considered to be a waiver of any such default or acquiescence thereof. The acceptance of rent by Landlord shall not be deemed to be a waiver of any breach of any of the covenants herein contained or of any of the rights of Landlord to any remedies herein given.
e. To the extent allowed by law, Tenant waives any obligation of Landlord to mitigate its damages, whether statutory or at common law. In the event Landlord undertakes to mitigate its damages, Landlord will satisfy any duty to mitigate as long as Landlord’s marketing activities related to the Leased Premises are substantially comparable to the marketing efforts Landlord has historically taken for similarly sized, situated and configured space in the Building. Landlord is not required to specially market the Leased Premises, send out any special fliers to the real estate brokerage community, take out any advertisements in magazines, newspapers or other periodicals, or to provide any leasing incentives, whether to potential tenants or their real estate broker. Landlord specifically has the right to lease other available space in the Building, preferentially to the Leased Premises and Tenant waives any obligation to do so.
Appears in 1 contract
Samples: Assignment and Assumption of Lease Agreement (Retail Ventures Inc)
Default by Tenant - Remedies of Landlord. a. The occurrence of any (a) Each of the following events shall constitute be deemed a default by Tenant under and a breach of this Lease:: (i) filing of a petition by Tenant for adjudication as a bankrupt or an adjudication as a bankrupt or for reorganization or for an arrangement under any federal or state statute, except a Chapter 11 Bankruptcy where rent is being paid and the terms of the Lease are being complied with; (ii) involuntary dissolution or liquidation of Tenant; (iii) appointment of a permanent receiver or a permanent trustee of all or substantially all the property of Tenant, if such appointment shall not be vacated within one hundred and twenty (120) days; (iv) taking possession of the property of Tenant by any governmental officer or agency pursuant to statutory authority for dissolution, rehabilitation, reorganization or liquidation of the Tenant if such taking of possession shall not be vacated within one hundred and twenty (120) days; (v) making by the Tenant of an assignment for the benefit of creditors. If any event mentioned in this subdivision (a) shall occur, Landlord may thereupon or at any time thereafter elect to cancel this Lease by thirty (30) days notice to the tenant in possession and this Lease shall terminate on the day in such notice specified with the same force and effect as if that date were the date herein fixed for the expiration of the term of the Lease.
i. Failure to make due and punctual (i) Default in the payment of the base rent reserved for a period of twenty (20) days after notice. In the event Tenant deducts from base rent or other charges hereunder such sums expended by Tenant to remedy defects or make repairs upon Landlord's failure to perform its obligations hereunder, such action by Tenant shall not be construed as a default in the payment of fixed rent or other charges hereunder.
(ii) A default in the performance of any other charges, assessments or amounts within five (5) days or when due or payable or required to be paid under this Lease; or
ii. Material breach of any non-monetary term, covenant or condition of this Lease and failure on the part of the Tenant to cure such breach within be performed for a period of thirty (30) days after Tenant’s receipt notice. For purposes of written noticethis subdivision (b) (ii) hereof, no default on the part of Tenant in performance of work required to be performed or acts to be done or conditions to be modified shall be deemed to exist if steps shall have been commenced by Tenant diligently after notice to rectify the same and shall be prosecuted to completion with reasonable diligence, subject, however, to unavoidable delays.
(c) In cases of any such default under Section (b) and at any time thereafter following the expiration of the respective grace periods above mentioned, Landlord may serve a notice upon the Tenant electing to terminate this Lease upon a specified date not less than twenty (20) days after the date of serving of such notice and this Lease shall then expire on the date so specified as if that date had been originally fixed as the expiration date of the term herein granted; however, a default under Section (b) hereof shall be deemed waived if such breach cannot reasonably default is cured before the date specified for termination in the notice of termination served on Tenant.
(i) a copy of the specified notices shall be cured within served upon the thirty original Tenant herein as well as the party entitled to possession, and (30ii) day period, Tenant shall not be in default if entitled to timely rectify any defaults occurring after such assignment or subletting. If Tenant promptly commences to cure the default within the thirty (30) day period and diligently and in good faith continues to cure the default until completion, thereof by Landlord; or
iii. Adjudication of Tenant as bankrupt or insolvent, or filing by or against Tenant of any petition in bankruptcy or for reorganization or for the adoption of any arrangement under the Bankruptcy Code that is not resolved within sixty (60) days; application is made for the appointment of receiver or conservator for Tenant’s business or property; or assignment by Tenant is made of its property for the benefit of its creditors; or Tenant’s interest in assigns this Lease or sublets the Premises, Landlord, when giving notice to said assignee or subtenant or any substantial amount future assignee or subtenant in respect of any default, shall also serve a copy of such notice upon the original Tenant (herein called the "Original Tenant’s other real or personal property "), and no notice of default shall be effective until a copy thereof is levied or executed upon by process of law; or
iv. Petition or other proceeding is made by or against Tenant for its dissolution or liquidation; or voluntary dissolution or liquidation of so given to the Original Tenant; or
v. Failure by Tenant to timely take possession of the Leased Premises; or
vi. The occurrence Original Tenant shall have the same period after receipt of any event or condition having a material and adverse effect on the assets, liabilities, financial condition, business or operations of such notice to cure such default as is given to Tenant as they exist on the date of therefor under this Lease, or the ability of Tenant to meet its obligations under . If this Lease on terminates or this Lease and the term hereof ceases and expires because of a timely basis as provided herein; or
vii. Any representation default of such assignee or warranty by Tenant in subtenant after an assignment of this Lease or in any certificatesublease shall have been made, statement or other document furnished pursuant Landlord shall promptly give to or under this Lease, including, without limitation, financial statements, proves to be or becomes incorrect in any material respect.
b. If the Original Tenant notice thereof; and the Original Tenant shall default in have the payment of rent or in the keeping of any of the terms, covenants or conditions of this Lease to be kept and/or performed by Tenant or shall otherwise commit any event of default as defined above, Landlord may upon the expiration of any applicable cure, immediately, or at any time thereafter, reenter the Leased Premises, remove all persons and property therefrom, without being liable to indictment, prosecution for damage therefore, or for forcible entry and detainer and repossess and enjoy the Leased Premises, together with all additions thereto or alterations and improvements thereof. Landlord may, at its option, at exercisable by the giving of notice by the Original Tenant to Landlord within ten (10) days after receipt by the Original Tenant of Landlord's notice, to cure any time default and from time to time thereafter, relet the Leased Premises or any part thereof for the account of become Tenant or otherwise, and receive and collect the rents therefore and apply the same first to the payment of such expenses as Landlord may have incurred in recovering possession and for putting the same in good order and condition for re-rental, and expense, commissions and charges paid by Landlord in reletting the Leased Premises. Any such reletting may be under a new lease for the remainder of the term of this Lease or for a longer or shorter period. In lieu (including any renewal periods) upon all of reletting the same terms and conditions as then remain under this Lease, and such Leased new lease shall commence on the date of termination of this Lease, except that if the Original Tenant is occupying less than ten percent (10%) of the Premises, Landlord may occupy deliver to the same Original Tenant, together with Landlord's notice, a release as to all future liability under this Lease.
(d) In case this Lease shall be terminated as hereinbefore provided, or cause by legal proceedings, Landlord or its agents may, immediately or any time thereafter, re-renter and resume possession of the same Premises or such part thereof, and remove all persons and property therefrom, by a suitable action or proceeding at law. No re-entry by Landlord shall be deemed an acceptance of a surrender of this Lease.
(e) In case this Lease shall be terminated as hereinbefore provided, Landlord shall, in its own name but as agent for Tenant, if the Lease be not terminated, or if the Lease be terminated in its own behalf, use its best efforts to mitigate its damages and relet the whole or any portion of the Premises for any sum which may be occupied reasonable, giving due consideration to the rents reserved herein and in connection with any such lease, Landlord may make such changes in the character of the improvements on the Premises as may be appropriate or helpful in effecting such lease. Landlord shall not in any event be required to pay Tenant any surplus of any sums received by others. Unless Landlord on a reletting of the Premises are reletin excess of the rent reserved in this Lease.
(f) In case this Lease shall be terminated as provided in Section (c), subject to rebuttal by Tenant, Landlord shall be entitled to recover from the Tenant, the following: (i) a sum equal to all reasonable expenses, if any, including reasonable counsel fees, incurred by Landlord in recovering possession of the Premises, and all reasonable costs and charges for the care of said Premises while vacant, which damages, less the avails of reletting, shall be due and payable by Tenant to Landlord; and (ii) a sum equal to the amount of all rent and other charges reserved under this Lease which shall pay be due and payable by Tenant to Landlord on the several days on which the rent and all other charges required to be paid by Tenant up to reserved in this Lease would have become due and payable, less the time greater of (1) the fair rental value of the expiration of this Lease Premises, or such recovered possession, as (2) the case may be and thereafter, Tenantnet rent, if required any, collected by LandlordLandlord on reletting the Premises; that is, upon each of such days Tenant shall pay to Landlord the amount of deficiency then existing after receipt of credit for the fair rental value or net rent collected by Landlord. Any excess amounts of rent collected by Landlord shall be credited against future rent. Such net rent collected on reletting shall be computed by deducting from the gross rents collected all necessary expenses incurred in connection with reletting of the Premises or any part thereof, including reasonable brokers' commissions.
(g) Separate actions may be maintained by Landlord against Tenant from time to time to recover any damages which, at the commencement of any such action, have then or theretofore become due and payable to the Landlord under this Section without waiting until the end of the term of this Lease, the equivalent of the amount of all rent reserved herein and all other charges required to be paid by Tenant, less the net amount received by Landlord for such reletting, if any, unless waived by written notice from Landlord to Tenant. No action by Landlord to obtain possession of the Leased Premises and/or to recover any amount due to Landlord hereunder shall be taken as a waiver of Landlord’s right to require full and complete performance by Tenant of all terms hereof, including payment of all amounts due hereunder or as an election on the part of Landlord to terminate this Lease Agreement. If the Leased Premises are reoccupied by Landlord pursuant hereto, and regardless of whether the Leased Premises shall be relet or possessed by Landlord, all fixtures, additions, furniture, and the like then on the Leased Premises may be retained by Landlord. In the event Tenant is in default under the terms hereof beyond any applicable cure period and, by the sole determination of Landlord, has abandoned the Leased Premises, Landlord shall have the right to remove all Tenant’s property from the Leased Premises and dispose of said property in such a manner as determined best by Landlord, at the sole cost and expense of Tenant and without liability of Landlord for the actions so takencurrent term.
c. In the event an assignment of Tenant’s business or property shall be made for the benefit of creditors, or, if Tenant’s leasehold interest under the terms of this Lease Agreement shall be levied upon by execution or seized by virtue of any writ of any court of law, or, if application be made for the appointment of a receiver for the business or property of Tenant, or, if a petition in bankruptcy shall be filed by or against Tenant, then and in any such case, at Landlord’s option, with or without notice, Landlord may terminate this Lease and immediately retake possession of the Leased Premises without the same working any forfeiture of the obligations of Tenant hereunder.
d. In addition to all rights and remedies granted to Landlord by the terms hereof, Landlord shall have available any and all rights and remedies available at law or in equity, or under the statutes of the State of Colorado. No remedy herein or otherwise conferred upon or reserved to Landlord shall be considered exclusive of any other remedy but shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Further, all powers and remedies given by this Lease to Landlord may be exercised, from time to time, and as often as occasion may arise or as Landlord may deem expedient. No delay or omission of Landlord to exercise any right or power arising from any default shall impair any such right or power or shall be considered to be a waiver of any such default or acquiescence thereof. The acceptance of rent by Landlord shall not be deemed to be a waiver of any breach of any of the covenants herein contained or of any of the rights of Landlord to any remedies herein given.
e. To the extent allowed by law, Tenant waives any obligation of Landlord to mitigate its damages, whether statutory or at common law. In the event Landlord undertakes to mitigate its damages, Landlord will satisfy any duty to mitigate as long as Landlord’s marketing activities related to the Leased Premises are substantially comparable to the marketing efforts Landlord has historically taken for similarly sized, situated and configured space in the Building. Landlord is not required to specially market the Leased Premises, send out any special fliers to the real estate brokerage community, take out any advertisements in magazines, newspapers or other periodicals, or to provide any leasing incentives, whether to potential tenants or their real estate broker. Landlord specifically has the right to lease other available space in the Building, preferentially to the Leased Premises and Tenant waives any obligation to do so.
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