Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation. 21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either: (a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or (b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
Appears in 2 contracts
Samples: Deed of Office Lease (Mercator Software Inc), Deed of Office Lease (Mercator Software Inc)
Default of Tenant. 21.1 Each The following events shall be a default by Tenant (a “Default”) under this Lease:
(1) Failure of Tenant to pay Rent as and when due; provided, however, that with respect to the following shall constitute an Event of Default: first two (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (32) such Landlord Notices during failures in any twelve (12) month period only, no Default shall be deemed to have occurred unless such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of five (5) business days after written notice thereof from Landlord to Tenant.
(2) Failure of Tenant to comply with or perform any covenant or obligation of Tenant under this Lease, if the failure continues for thirty (30) days after notice thereof from LandlordLandlord to Tenant specifying the failure, or if such violation or failure is remediable but is other than (i) those concerning the payment of such a nature that it cannot be remedied within such thirty Rent, (30ii) day periodthose set forth in any of Sections 21, then for such longer period (not 35, 36 and 38 hereof, as to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If which there shall be an Event of Defaultno cure rights hereunder, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession (iii) those set forth in Sections 8.B. and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession22 hereof, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages entitled to five (5) business days after notice from Landlord to Tenant specifying the failure within which at Landlord's election to cure same, (iv) those set forth in Sections 17 and 26 hereof, as to which Tenant shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal entitled to one (1) whole percentage point above business day after notice from Landlord to Tenant specifying the discount rate then failure within which to cure same, and (v) any Default arising under subsections (5) or (6) of this Section 19.A.; provided, however, that if the failure on the part of Tenant is not capable of being cured within such 30-day period but Tenant expeditiously commences to cure same and diligently proceeds with such cure, Tenant’s time to cure such failure shall be extended for the time necessary to cure same, but in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemptionno event longer than ninety (90) days, re-entry or restoration inclusive of the operation original 30-day period.
(3) [Intentionally omitted.]
(4) If Tenant, any Guarantor or, if Tenant is a partnership, any partner of this Lease Tenant (“Partner”), shall file a voluntary petition in bankruptcy or insolvency, shall be adjudicated bankrupt or insolvent or shall file a petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future lawfederal, including state or other Laws, or shall make an assignment for the benefit of creditors, or shall seek or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or of any Guarantor or Partner or of all or any part of the property of Tenant or of such right Guarantor or Partner.
(5) If, within thirty (30) days after the commencement of any proceeding against Tenant or any Guarantor or Partner, whether by the filing of a petition or otherwise, seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future applicable federal, state or other Laws, such proceeding shall not have been dismissed or if, within thirty (30) days after the appointment of any trustee, receiver or liquidator of Tenant or any Guarantor or Partner, or of all or any part of the property of Tenant or of any Guarantor or Partner, without the acquiescence of such individual or entity, such appointment shall not have been vacated or otherwise discharged, or if any execution or attachment shall have been issued against the property of Tenant or of any Guarantor or Partner, pursuant to which the Premises shall be taken or occupied or attempted to be taken or occupied.
(6) If Tenant would otherwise have fails to take possession of the Premises on the Lease Commencement Date or vacates, abandons or ceases to carry on its ordinary activities in the Premises prior to the Lease Expiration Date, with or without an intention of paying Rent; provided, however, that if (i) Tenant gives Landlord at least thirty (30) days prior written notice that it intends to vacate the Premises, (ii) Tenant pays the full amount of all Rent when due under this Lease while the Premises are vacant, (iii) the fact that the Premises are vacant does not adversely affect the Building or other tenants therein and does not result in any liability to, or expenditure of funds by, Landlord, and (iv) Tenant leaves the Premises, and continues to maintain the Premises, in the condition required by this Lease throughout the remainder of the Term, then, and in such event only, Tenant shall not be dispossessed for any causedeemed to be in Default under this Section 19.A.(6).
Appears in 2 contracts
Samples: Lease Agreement (Evolent Health, Inc.), Lease Agreement (Evolent Health, Inc.)
Default of Tenant. 21.1 Each of It is mutually agreed that in the following shall constitute an Event of Defaultevent: (a) Tenant's failure the rent herein reserved is not paid at the time and place when and where due and Tenant fails to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year pay said rent within five (5) days after such payment's due datewritten demand from Landlord; or (b) Tenant's failure Tenant will fail to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe comply with any other covenant or material term, provision, condition, which violation or covenant of this Lease, other than the payment of rent, and will not cure such failure continues for a period of within thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is to Tenant of such failure to comply or such additional time period as may reasonably be necessary to effect a nature cure of the default provided that it canTenant commences and diligently pursues a cure of the default; or (c) Tenant causes any lien to be placed against the Premises and does not be remedied cure the same within such thirty (30) day perioddays after notice from Landlord to Tenant demanding cure, then for THEN in any of such longer period (not events, Landlord will have the option to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation do any of the following, in addition to, and not in limitation of any other remedy permitted by law or by this Lease: (i) Landlord may terminate this Lease, in which event Tenant will immediately surrender the Premises to Landlord. Tenant agrees to indemnify Landlord for all loss and damage which Landlord may suffer by reason of such termination, whether through inability to relet the Premises; (e) an Event of Bankruptcy as specified , or through decrease in Article XXII with respect to Tenantrent, any general partner of Tenant (a "General Partner") or any Guarantorotherwise; or (fii) Landlord, as Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Defaultagent, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall ceaseand, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall option, enter upon and rent the Premises at the best price obtainable by reasonable effort, without advertisement and by private negotiations and for any term Landlord deems proper. Tenant will be either:
(a) an amount equal liable to Landlord for the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rentaldeficiency, if any, which between Tenant's rent hereunder and the price obtained by Landlord receives during such period from others on reletting. Pursuit of any of the foregoing remedies will not preclude pursuit of any of the other remedies herein provided or any other remedies provided by law. In any case, Landlord will use best efforts to whom the Premises mitigate Tenant's damages. Any notice in this provision may be rented (other than any Additional Rent payable as a result given by Landlord or its attorney. No termination of any failure this Lease prior to the normal ending thereof, by lapse of such other person to perform any of its obligations)time otherwise, which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice will affect Landlord's right to collect any such damages rent for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal period prior to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causetermination thereof.
Appears in 2 contracts
Samples: Lease Agreement (Hughes Supply Inc), Lease Agreement (Hughes Supply Inc)
Default of Tenant. 21.1 Each of the The following events shall constitute an Event of be a default by Tenant (a "Default: (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or under this Lease:
(ii1) if Failure of Tenant has received three to pay Rent as and when due; provided, however, that with respect to the first two (32) such Landlord Notices during failures in any twelve (12) month period only, no Default shall be deemed to have occurred unless such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of three (3) days after written notice thereof from Landlord to Tenant.
(2) Failure of Tenant to comply with or perform any covenant or obligation of Tenant under this Lease, if the failure continues for thirty (30) days after notice thereof from LandlordLandlord to Tenant specifying the failure, other than (i) those concerning the payment of Rent, (ii) those set forth in any of Sections 8.B., 17, 21, 22, 26, 35, 36 and 38 hereof, as to which a specific timeframe for the performance of such covenant or obligation is set forth therein, and (iii) any Default arising under subsections (3), (4), (5) or (6) of this Section 19.A.; provided, however, that if the failure on the part of Tenant is not capable of being cured within such 30-day period but Tenant expeditiously commences to cure same and diligently proceeds with such cure, Tenant’s time to cure such failure shall be extended for the time necessary to cure same, but in no event longer than sixty (60) days, inclusive of the original 30-day period.
(3) [Intentionally omitted].
(4) If Tenant, any Guarantor or, if Tenant is a partnership, any partner of Tenant ("Partner"), shall file a voluntary petition in bankruptcy or insolvency, shall be adjudicated bankrupt or insolvent or shall file a petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future federal, state or other Laws, or if such violation shall make an assignment for the benefit of creditors, or failure is remediable but is shall seek or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or of any Guarantor or Partner or of all or any part of the property of Tenant or of such a nature that it cannot be remedied Guarantor or Partner.
(5) If, within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that after the commencement of any proceeding against Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; Guarantor or (f) Tenant's Partner, whether by the filing of a petition or otherwise, seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease similar relief under any present or future lawapplicable federal, including state or other Laws, such proceeding shall not have been dismissed or if, within ninety (90) days after the appointment of any trustee, receiver or liquidator of Tenant or any Guarantor or Partner, or of all or any part of the property of Tenant or of any Guarantor or Partner, without the acquiescence of such right individual or entity, such appointment shall not have been vacated or otherwise discharged, or if any execution or attachment shall have been issued against the property of Tenant or of any Guarantor or Partner, pursuant to which the Premises shall be taken or occupied or attempted to be taken or occupied.
(6) If Tenant would otherwise have fails to take possession of the Premises on the Lease Commencement Date or vacates, abandons or ceases to carry on its ordinary activities in the Premises prior to the Lease Expiration Date, with or without an intention of paying Rent; provided, however, that if (i) Tenant gives Landlord at least thirty (30) days prior written notice that it intends to vacate the Premises, (ii) Tenant pays the full amount of all Rent when due under this Lease while the Premises are vacant, and (iii) Tenant leaves the Premises in the condition required by this Lease and continues to maintain the Premises in the condition required by this Lease throughout the remainder of the Term, then, and in such event only, Tenant shall not be dispossessed deemed to be in Default under this Section 19.A.(6).
(7) Failure of Tenant to comply with or perform any covenant or obligation under Sections 8.B., 17, 21, 22, 26, 35, 36 or 38 hereof within the specific timeframe for any causethe performance of such covenant or obligation set forth in the applicable Section.
Appears in 2 contracts
Samples: Office Lease (Cellular Biomedicine Group, Inc.), Office Lease (Cellular Biomedicine Group, Inc.)
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: (a) Tenant's failure (I) If Tenant shall default in its obligations to make any payment of pay the Base Rent, Annual Fixed Rent or Additional Rent or any other sum (i) within five (5) days notice from Landlord that charges or amounts under this Lease when due or shall default in complying with its obligations under Subsection 6.1.11 of this Lease and if any such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within default shall continue for five (5) days after notice from Landlord designating such payment's due date; default, or (bII) Tenant's failure to take possession of the Premises if as promptly as possible but in any event within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, Landlord to Tenant specifying any default or defaults other than those set forth in clause (I) Tenant has not cured the default or defaults so specified; or (b) if such violation any assignment shall be made by Tenant for the benefit of creditors; or failure is remediable but is of such a nature that it cannot (c) if Tenant’s leasehold interest shall be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completiontaken on execution; or (d) if a lien or other involuntary encumbrance shall be filed against Tenant's abandonment ’s leasehold interest or vacation of the PremisesTenant’s other property, including said leasehold interest, and shall not be discharged within ten (10) days thereafter; or (e) if a petition shall be filed by Tenant for liquidation, or for reorganization or an Event arrangement under any provision of Bankruptcy any bankruptcy law or code as specified then in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantorforce and effect; or (f) Tenant's if an involuntary petition under any of the provisions of any bankruptcy law or code shall be filed against Tenant and such involuntary petition shall not be dismissed within thirty (30) days thereafter; or (g) if a custodian or similar agent shall be authorized or appointed to take charge of all or substantially all of the assets of Tenant or (h) if Tenant dissolves or shall be dissolved or shall liquidate or shall adopt any plan or commence any proceeding, the result of which is intended to include dissolution or liquidation.
21.2 If there ; or (i) if any order shall be an Event entered in any proceeding by or against Tenant decreeing or permitting the dissolution of DefaultTenant or the winding up of its affairs; or (j) if Tenant shall fail to pay any installment of Annual Fixed Rent or Additional Rent when due, including an Event Tenant shall cure such default within the grace period provided in clause (a) (I) above (or with Landlord’s approval after the expiration of such grace period) and Tenant shall, within the next year following the date such initial defaulted payment was first due, fail more than once to pay any installment of Annual Fixed Rent or Additional Rent when due, then, and in any of such cases indicated in clauses (a) through (j) hereof (collectively and individually, a “Default prior of Tenant”), Landlord may, in addition to and not in derogation of any remedies for any preceding breach of covenant, immediately or at any time thereafter (x) give notice to Tenant terminating this Lease and/or the Rent Commencement Dateterm hereof, then Landlord which notice shall have specify the rightdate of such termination, at its sole optionwhereupon on the date so specified, to the term of this Lease and all of Tenant’s rights and privileges under this Lease shall expire and terminate this Lease. In addition, with or (y) without terminating this Lease, Landlord may re-enter, Lease terminate Tenant's ’s right of possession and/or occupancy and reenter and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone without notice and expel Tenant and any party claiming under Tenant and remove any of their effects, without being liable on account thereof, whether in trespass or together with other premisesbreach or covenant or otherwise, for (and no such rent and upon reentry or taking possession shall be construed as an election by Landlord to terminate this Lease unless Landlord shall affirm such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determineelection by notice expressly to such effect), but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, in either case Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causehereinafter provided.
Appears in 2 contracts
Samples: Lease Agreement (RMR Group Inc.), Lease Agreement (Reit Management & Research Inc.)
Default of Tenant. 21.1 Each The occurrence of any one or more of the following shall constitute an Event a "Default of Default: Tenant" under this Lease:
(a) Tenant's The failure by Tenant to make any payment of the Base Annual Fixed Rent, Additional Rent or any other sum payment required to be made by Tenant hereunder (i) within five collectively, "Rent"), as and when due, where such failure shall continue for ten (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after notice thereof from Landlord to Tenant; provided, however, that any such payment's due date; notice shall be in lieu of, and not in addition to, any notice required under California Code of Civil Procedure §1161.
(b) Tenant's The failure by Tenant to take possession observe or perform any of the Premises within sixty express or implied covenants or provisions of this Lease to be observed and performed by Tenant, other than as specified in subsection (60a) days of the Lease Commencement Date; (c) Tenant's violation or above, where such failure to perform or observe any other covenant or condition, which violation or failure continues shall continue for a period of thirty (30) days after written notice thereof from LandlordLandlord to Tenant; provided, or however, that any such notice shall be in lieu of, and not in addition to, any notice required under California Code of Civil Procedure §1161; provided, further, that if the nature of Tenant's default is such violation or failure is remediable but is of such a nature that it canmore than thirty (30) days are reasonably required for its cure, then Tenant shall not be remedied deemed to be in default if Tenant shall commence such cure within such thirty (30) day period, then for period and thereafter diligently prosecute such longer period cure to completion within sixty (not to exceed ninety (9060) days subject to Force Majeure from the date of such notice from Landlord.
(c) as may reasonably be required, provided that An assignment by Tenant promptly commences and diligently pursues such remedy to completion; or any guarantor of Tenant for the benefit of creditors.
(d) The taking by execution or levy of Tenant's abandonment or vacation of the Premises; leasehold interest.
(e) an Event The filing of Bankruptcy as specified in Article XXII with respect to a lien or other involuntary encumbrance against Tenant's leasehold interest or Tenant's other property, including said leasehold interest, or against the property of any guarantor of Tenant, any general partner of which filing shall not be discharged within ten (10) days after Tenant (a "General Partner") or any Guarantor; or receives notice thereof.
(f) Tenant's dissolution The filing of a petition by Tenant or any guarantor of Tenant for liquidation, or for reorganization or an arrangement under any provision of any bankruptcy law or code as then in force and effect.
21.2 If there shall be (g) The filing of an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession involuntary petition under any of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit bankruptcy law or code against Tenant or any guarantor of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under Tenant and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but involuntary petition shall not be obligated todismissed within thirty (30) days thereafter.
(h) The appointment of a custodian, relet receiver or similar agent shall be authorized or appointed to take charge of all or substantially all of the Premises assets of Tenant or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date guarantor of Tenant's default) of the difference between .
(i) The dissolution or liquidation of Tenant or any guarantor of Tenant or the Base Rent and Additional Rent that would have become due through adoption of any plan or the date on commencement of any proceeding, the result of which is or is intended to include the Lease Term would have expired but for dissolution or liquidation of Tenant or any guarantor of Tenant's default, and .
(iij) The entry of an order in any proceeding by or against Tenant or any guarantor of Tenant decreeing or permitting the fair market rental value(as reasonably determined by Landlord) dissolution of Tenant or any guarantor of Tenant or the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose winding up of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeits affairs.
Appears in 2 contracts
Samples: Lease Agreement (Dexcom Inc), Lease Agreement (Dexcom Inc)
Default of Tenant. 21.1 Each of the following shall constitute an Event of be deemed a default by Tenant (“Tenant Default: ” or a “Default”):
(a) Tenant's failure Failure to make any payment of pay the Base Net Rent, Capital Costs, Common Area Rent, Additional Rent or any other sum sums payable by Tenant hereunder as and when due and such default shall continue for a period of ten (i10) within five (5) calendar days after written notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) to Tenant. Notwithstanding the foregoing, if Tenant has received three (3) such Landlord Notices fails twice during any Lease Year to pay any Net Rent, Capital Costs, Common Area Rent, Additional Rent or other amount when due, then any subsequent failure to pay Net Rent, Capital Costs, Common Area Rent, Additional Rent or other amount when due during such Lease Year shall constitute a Tenant Default immediately upon occurrence, irrespective of whether or not Tenant has received written notice thereof.
(b) Failure to comply with any of the insurance requirements set forth in Section 10.1 or Exhibit 10.1 and such failure shall continue for a period of ten (10) calendar days after written notice from Landlord to Tenant.
(c) Failure to perform any act to be performed by Tenant hereunder or to comply with any provision, condition or covenant contained herein and such failure continues for more than thirty (30) calendar days after written notice of such failure is delivered to Tenant, or in the event of a default which cannot with due diligence be cured within five such thirty (530) day period to commence to cure said default within thirty (30) days after such payment's notice and to prosecute the curing of such default with due date; (b) Tenant's failure diligence and to take possession complete the curing of said default within a reasonable time thereafter. Notwithstanding the foregoing, in the event Landlord determines that a Space Tenant or MOB Occupant is in violation of the Premises use restrictions set forth in Section 5.1, Section 5.2, Section 5.3 or Section 5.7 hereof, Landlord shall deliver written notice thereof to Tenant, and Tenant shall not be deemed to be in default under this Lease provided that Tenant, immediately and in good faith, prosecutes with due diligence the resolution of a dispute as to whether Space Tenant is in violation of the use restrictions, and Tenant prosecutes the curing of such default immediately and with due diligence and completes such curing by eliminating or preventing such continued prohibited use within sixty (60) days after Landlord’s written notice.
(d) The filing by or against Tenant of a petition under the Bankruptcy Code, as amended, or under any similar law or statute of the United States or any State thereof (unless such petition is dismissed within sixty (60) days of the Lease Commencement Datefiling thereof); (c) Tenant being adjudged bankrupt or insolvent in proceedings filed against Tenant thereunder; the making by Tenant of a general assignment for the benefit of creditors; Tenant's violation ’s taking the benefit of any insolvency action or failure to perform law; the appointment of a permanent receiver or observe any other covenant trustee in bankruptcy for Tenant or condition, which violation its assets; the appointment of a temporary receiver for Tenant or failure continues for a period of its assets if such temporary receivership has not been vacated or set aside within thirty (30) calendar days after notice thereof from Landlord, or if such violation or failure is remediable but is the date of such a nature that it cannot be remedied within such thirty (30) day period, then appointment; the initiation of an arrangement or similar proceedings for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completionthe benefit of creditors by or against Tenant; (d) or the dissolution or other termination of Tenant's abandonment or vacation of the Premises; ’s existence.
(e) an Event of Bankruptcy as specified in Article XXII with respect Failure, after any applicable notice and cure period (i) to make payment when due, (ii) to perform any act to be performed by Tenant, or (iii) to comply with any general partner of provision, condition or amount contained in any Leasehold Mortgage or other instrument or agreement between Tenant (and any Leasehold Mortgagee which constitutes a "General Partner") default under such Leasehold Mortgage or any Guarantor; other instrument or agreement.
(f) Tenant's dissolution The occurrence of any default by Tenant under any Approved Lease by and between Tenant and Landlord or liquidation.
21.2 If there shall be an Event affiliate of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect each case beyond any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees applicable notice and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:cure period.
(ag) an amount equal Any other event expressly deemed to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of Tenant under this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeLease.
Appears in 2 contracts
Samples: Ground Lease Agreement (CNL Healthcare Properties, Inc.), Ground Lease Agreement (CNL Healthcare Properties, Inc.)
Default of Tenant. 21.1 Each In the event of the following shall constitute an Event any failure of Default: (a) Tenant's failure Tenant to make pay any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year amounts due hereunder within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation same shall be due, or any failure to perform or observe any other covenant of the terms, conditions or conditioncovenants of this Lease to be observed or performed by Tenant with all reasonable diligence, which violation but in any event for more than thirty (30) days after written notice of such failure shall have been given to Tenant, or failure continues if Tenant or an agent of Tenant shall falsify any report required to be furnished to Landlord pursuant to the terms of this Lease, or if Tenant or any guarantor of this Lease shall become bankrupt or insolvent, or file any debtor proceedings, or any person shall file against Tenant or any guarantor of this Lease 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 for the appointment of a receiver or trustee of all or a portion of Tenant’s or any such guarantor’s property, or if Tenant or any such guarantor makes an assignment for the benefit of creditors, or petitions for or enters into any similar arrangement, or if any guarantor of this Lease shall be in default in the performance of any covenant, duty or obligation under any guaranty or other agreement entered into with or in favor of Landlord and such default shall remain uncured for a period of thirty (30) days or more after notice thereof from Landlordof such default, or if such violation Tenant shall abandon or failure is remediable but is vacate the Demised Premises or suffer this Lease to be taken under any writ of such a nature that it cannot be remedied within such thirty execution (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment any one or vacation more of the Premises; (e) foregoing shall constitute an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an “Event of Default, including an Event of Default prior to the Rent Commencement Date”), then Landlord in any such event Tenant shall be in default hereunder, and Landlord, in addition to any other rights and remedies it may have, shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's immediate right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may remove all persons and property from the Demised Premises and such property may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained removed and stored in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under a public warehouse or elsewhere at the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason cost of, Landlord's failure and for the account of Tenant, all without service of notice or resort to relet the Premises legal process and without being guilty of trespass, or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain becoming liable for any Base Rent, Additional Rent loss or damages damage which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeoccasioned thereby.
Appears in 2 contracts
Samples: Lease (Wireless Ronin Technologies Inc), Lease Agreement (Wireless Ronin Technologies Inc)
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: (a) Tenant's failure It shall be a default by Tenant if:
(1) the rent herein required is not paid at the time and place when and where due and Tenant fails to make any payment of the Base Rent, Additional Rent or any other sum pay said rent within ten (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after such payment's due datewritten demand from Landlord; or (b2) Tenant's failure Tenant fails to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe comply with any other covenant or material term, provision, condition, which violation or covenant of this Lease, other than the payment of rent, and will not cure such failure continues for a period of within thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is to Tenant of such failure to comply or such additional time period as may reasonably be necessary to effect a nature cure of the default provided that it canTenant commences and diligently pursues a cure of the default; or (3) Tenant causes any lien to be placed against the Premises and does not be remedied cure the same within such thirty (30) day period, then for such longer period (not days after notice from Landlord to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidationdemanding cure.
21.2 If there shall be an Event (b) Upon any default by Tenant referenced in Subparagraph (a) above, Landlord may, in addition to, and not in limitation of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to any other remedy permitted by law or by this Lease:
(1) terminate this Lease. In addition, with in which case Tenant shall (A) immediately surrender the Premises to Landlord, and (B) indemnify Landlord for all loss and damage that Landlord may suffer by reason of such termination, whether through inability to relet the Premises, or through decrease in rent, or otherwise; or
(2) acting as Tenant's agent, without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall ceaseand, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall option, enter upon and rent the Premises at the best price obtainable by reasonable effort, without advertisement and by private negotiations and for any term Landlord deems proper, in which case Tenant will be either:
(a) an amount equal liable to Landlord for the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rentaldeficiency, if any, which between Tenant's rent hereunder and the price obtained by Landlord receives during such period from others on reletting. Pursuit of any of the foregoing remedies will not preclude pursuit of any of the other remedies herein provided or any other remedies provided by law. In any case, Landlord will use reasonable efforts to whom the Premises mitigate Tenant's damages. Any notice in this provision may be rented (other than any Additional Rent payable as a result given by Landlord or its attorney. No termination of any failure this Lease prior to the normal ending thereof, by lapse of such other person to perform any of its obligations)time or otherwise, which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice will affect Landlord's right to collect any such damages rent for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal period prior to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causetermination thereof.
Appears in 2 contracts
Samples: Lease Agreement (Bairnco Corp /De/), Lease Agreement (Nur Macroprinters LTD)
Default of Tenant. 21.1 Each The following events shall be a default by Xxxxxx (a “Default”) under this Lease:
17.1.1 Failure of the following Tenant to pay Rent as and when due; provided, however, no Default shall constitute an Event of Default: (a) Tenant's failure be deemed to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that have occurred unless such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of five (5) business days after Xxxxxx’s receipt of written notice thereof from Landlord.
17.1.2 Failure of Tenant to comply with or perform any covenant or obligation of Tenant under this Lease (other than those concerning the payment of Rent, which shall be subject to Section 17.1.1 above), if the failure continues for thirty (30) days after notice thereof from LandlordLandlord to Tenant specifying the failure; provided, or however if such violation or failure default is remediable but is not capable of such a nature that it cannot be remedied within being cured in such thirty (30) day period, then for such longer period (default shall not be a Default hereunder so long as Tenant promptly commences such cure during such 30-day period, and thereafter diligently prosecutes such cure to exceed ninety (90) days completion, but, subject to Force Majeure Majeure, in no event exceeding a period of time in excess of one hundred eighty (180) as may reasonably be requireddays after written notice to Tenant.
17.1.3 To the extent permitted by law, provided that (i) Tenant promptly commences and diligently pursues being placed into receivership or conservatorship, or becoming subject to similar proceedings under Federal or State law unless the receiver or other remedy is not discharged within sixty (60) days, or (ii) a general assignment by Tenant for the benefit of creditors unless the assignment or other remedy is not discharged within sixty (60) days, or (iii) the filing by or against Tenant of any proceeding under an insolvency or bankruptcy law, unless in the case of such a proceeding filed against Tenant the same is dismissed within sixty (60) days, or (v) the appointment of a trustee or receiver to take possession of all or substantially all of the assets of Tenant, unless the appointment, receiver or other remedy to completion; is not discharged within sixty (d60) days, or (vi) any execution or other judicially authorized seizure of all or substantially all of Tenant's abandonment assets located upon the Premises or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating interest in this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of unless such seizure is discharged within sixty (60) days.
17.1.4 The failure by Xxxxxx to observe or perform according to the Premises. The provisions of this Article shall operate as a notice to quitArticles 15, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under 20 and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation 24 of this Lease where such failure continues for more than ten (10) business days after Xxxxxx’s receipt of written notice from Landlord. All notices from Landlord to Tenant under any present or future law, including any such right which Tenant would otherwise have if Tenant this Lease shall be dispossessed for any causein addition to, and not in lieu of, notices required by Applicable Law and no such statutory notice may be sent until the notice periods in this Section 17.1.1 and 17.1.2 have expired.
Appears in 2 contracts
Samples: Lease Agreement (Gsi Technology Inc), Lease Agreement (Gsi Technology Inc)
Default of Tenant. 21.1 Each of the following shall constitute an Event event of Defaultdefault under this Lease: (a) Tenant's ’s failure to make any payment of the Base Rent, Additional Rent additional rent or any other sum (i) within five (5) business days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after of such payment's ’s due date; (b) Tenant's ’s failure to take possession of the Demised Premises within sixty THIRTY (6030) calendar days of the Lease Commencement Dateafter delivery thereof to Tenant; (c) Tenant's ’s violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period condition of thirty this Lease within ten (3010) calendar days after notice thereof from Landlord, ; or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty ten (3010) calendar day period, then for such longer period (not as may reasonably be required up to exceed a maximum of ninety (90) days subject to Force Majeure ) as may reasonably be requireddays, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's ’s abandonment or vacation of the Demised Premises; (e) an Event the insolvency or bankruptcy of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "“General Partner"”) or any Guarantorguarantor; or (f) Tenant's ’s dissolution or liquidation.
21.2 . If there shall be an Event event of Defaultdefault, including an Event event of Default default prior to the Rent Lease Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enterreenter the Demised Premises, terminate Tenant's ’s right of possession and take possession of the Demised Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's ’s intention to re-enter reenter the Demised Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Demised Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry reentry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's ’s right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's ’s right to recover from Tenant all rent and other sums due under hereunder through the terms and conditions Lease Expiration Date as defined in Article III. No such re-entry or taking possession of the Demised Premises by Landlord shall be construed as an election on its part to terminate this LeaseLease unless a written notice of such intention be given to Tenant or unless the termination thereof shall result as a matter of law or be decreed by a court of competent jurisdiction. Whether or not this Lease and/or Tenant's ’s right of possession is terminated, Landlord may, but shall not be obligated to, relet the Demised Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or concessions, free rent and alterations of the Demised Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's ’s obligations be diminished by reason of, Landlord's ’s failure to relet the Demised Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent additional rent or damages which may be due or sustained prior to by reason of such default, all and costs, fees and expenses (including without limitation reasonable attorneys' ’ fees, brokerage fees, expenses incurred in placing the Demised Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Demised Premises to others from time to time. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. Tenant shall also be liable to Landlord for additional damages damages, which shall be, at Landlord's election shall be either’s option, either (a) or (b) below:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord additional rent which would have become due during the remainder of the Lease Term, less the amount of rentalor rent, if any, which Landlord receives during such period from others to whom the Demised Premises may be rented (other than any Additional Rent additional rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's ’s default and continuing until the date on which the Lease Term would have expired but for Tenant's ’s default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's ’s right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease TermExpiration Date, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: Expiration Date; or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's ’s default) of the difference between (i) the Base Rent and Additional Rent that additional rent which would have become due through during the date on which remainder of the Lease Term would have expired but for Tenant's defaultTerm, and (ii) less the fair market rental value(as reasonably determined rent received by Landlord) Landlord under any reletting of the Premises for the same periodDemised Premises, which Present Value Damages damages shall be payable to Landlord in a one lump sum on demand; provided that Landlord has relet the Demised Premises which reletting may occur at any time up to the Lease Expiration Date. For purpose purposes of this Sectionsubsection (b), present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause. Landlord’s rights and remedies set forth in this Lease are cumulative and in addition to Landlord’s other rights and remedies at law or in equity, including those available as a result of any anticipatory breach of this Lease. Landlord’s exercise of any such right or remedy shall not prevent the concurrent or subsequent exercise of any other right or remedy. Landlord’s delay or failure to exercise or enforce any of Landlord’s rights or remedies or Tenant’s obligations shall not constitute a waiver of any such rights, remedies or obligations. If, as a result of any breach or default in the performance of any of the provisions of this Lease (whether or not such default is later cured), Landlord uses the services of an attorney in order to secure compliance with such provisions or recover damages therefor, or to terminate this Lease or evict Tenant, or if Landlord is required to defend itself or the terms of this Lease and Landlord uses the services of an attorney then (whether or not suit is actually filed or prosecuted to judgment) Tenant shall reimburse Landlord upon demand for any and all attorneys’ fees and expenses so incurred by Landlord.
Appears in 2 contracts
Samples: Lease (Global Defense Technology & Systems, Inc.), Lease (Global Defense Technology & Systems, Inc.)
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: (a) Tenant's failure (I) If Tenant shall default in its obligations to make any payment of pay the Base Rent, Annual Fixed Rent or Additional Rent or any other sum charges or amounts under this Lease when due or shall default in complying with its obligations under Sections 4.4 and 6.1.11 of this Lease and if any such default described in this subclause (iI) within five shall continue for ten (510) days after notice from Landlord that designating such payment has not been made ("Landlord Notice") default, or (iiII) if Tenant has received three (3) such Landlord Notices during such Lease Year as promptly as possible but in any event within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, Landlord to Tenant specifying any default or defaults other than those set forth in clause (I) Tenant has not cured the default or defaults so specified (provided that if Tenant is proceeding in good faith and with due diligence to complete the cure of any such violation or failure non-monetary performance breach which is remediable curable but is of such a nature that it cannot reasonably be remedied cured within thirty (30) days, such thirty (30) day period, then period shall be extended for such longer period (not up to exceed an additional ninety (90) days subject to Force Majeure days); or (b) as may reasonably if any assignment shall be required, provided that made by Tenant promptly commences and diligently pursues such remedy to completionfor the benefit of creditors; or (c) if Tenant’s leasehold interest shall be taken on execution; or (d) if a lien or other involuntary encumbrance shall be filed against Tenant's abandonment ’s leasehold interest or vacation of the PremisesTenant’s other property, including said leasehold interest, and shall not be discharged within ten (10) days thereafter; or (e) if a petition shall be filed by Tenant for liquidation, or for reorganization or an Event arrangement under any provision of Bankruptcy any bankruptcy law or code as specified then in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantorforce and effect; or (f) if an involuntary petition under any of the provisions of any bankruptcy law or code shall be filed against Tenant and such involuntary petition shall not be dismissed within thirty (30) days thereafter; or (g) if a custodian or similar agent shall be authorized or appointed to take charge of all or substantially all of the assets of Tenant's ; or (h) if Tenant dissolves or shall be dissolved or shall liquidate or shall adopt any plan or commence any proceeding, the result of which is intended to include dissolution or liquidation.
21.2 If there ; or (i) if any order shall be an Event entered in any proceeding by or against Tenant decreeing or permitting the dissolution of DefaultTenant or the winding up of its affairs; or (j) if Tenant shall fail to pay any installment of Annual Fixed Rent or Additional Rent when due, including an Event Tenant shall cure such default within the grace period provided in clause (a) (I) above (or with Landlord’s approval after the expiration of such grace period) and Tenant shall, within the next year following the date such initial defaulted payment was first due, fail more than twice to pay any installment of Annual Fixed Rent or Additional Rent when due, then, and in any of such cases indicated in clauses (a) through (j) hereof (collectively and individually, a “Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate of Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated”), Landlord may, but shall in addition to and not be obligated toin derogation of any remedies for any preceding breach of covenant, relet the Premises immediately or at any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure time thereafter give notice to relet the Premises or collect any rent due upon such reletting. Whether or not Tenant terminating this Lease is terminatedand the term hereof, which notice shall specify the date of termination, whereupon on the date so specified, the term of this Lease and all of Tenant’s rights and privileges under this Lease shall expire and terminate but Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causehereinafter provided.
Appears in 2 contracts
Samples: Lease Agreement (Leap Therapeutics, Inc.), Lease Agreement (Leap Therapeutics, Inc.)
Default of Tenant. 21.1 Each a. In the event of any failure of Tenant to pay any rental due hereunder on the date the same shall be due, or any failure to perform any other of the following shall constitute an Event terms, conditions or covenants of Default: this Lease Agreement to be observed or performed by Tenant for more than twenty (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (520) days after written notice of such payment's due date; (b) failure shall have been given to Tenant's failure , or if Tenant or an agent of Tenant shall falsify any report required to be furnished to Landlord pursuant to the terms of this Lease Agreement, or if Tenant or any guarantor of this Lease Agreement shall become bankrupt or insolvent, or file any debtor proceedings or any person shall take or have against Tenant or any guarantor of this Lease Agreement in any court pursuant to any statute either of the United States or of any state a petition of bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Tenant’s or any such guarantor’s property, or if Tenant or any such guarantor makes an assignment for the benefit or creditors, or petitions for or enters into an arrangement, or suffer this Lease Agreement to be taken under any writ of execution, then in any such event Tenant shall be in default hereunder, and Landlord, in addition to other rights or remedies it may have, shall have the immediate right of re-entry and may remove all persons and property from the Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost of, and for the account of Tenant, all without service of notice or resort to legal process and without being guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby.
b. Should Landlord elect to re-enter the Premises, as herein provided, or should it take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation pursuant to legal proceedings or failure pursuant to perform or observe any other covenant or conditionnotice provided for by law, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to either terminate this Lease. In additionLease Agreement or it may from time to time, with or without terminating this LeaseLease Agreement, Landlord may re-enter, terminate Tenant's right of possession make such alterations and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, repairs as may be applicable. If Landlord elects necessary in order to terminate this Lease and/or elects to terminate Tenant's right of possessionrelet the Premises, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone thereof upon such term or together with other premises, terms (which may be for a term extending beyond the Term of this Lease Agreement) and at such rent rental or rentals and upon such other terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, Landlord in its sole discretiondiscretion may deem advisable. Upon each such subletting 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 costs and expenses of such reletting, including brokerage fees and reasonable attorney’s fees and costs of such alterations and repairs; third, to the payment of the rent due and unpaid payment of future rent as the same may determinebecome due and payable hereunder. If such rentals received from such reletting during any month be less than that to be paid during that month by Tenant hereunder, but Tenant, upon demand, shall pay any such deficiency to Landlord. No such re-entry or taking possession of the Premises by Landlord shall not be liable forconstrued as an election on its part to terminate this Lease Agreement unless a written notice of such intention is given to Tenant or unless the termination thereof is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, nor shall Tenant's obligations be diminished Landlord may at any time after such re-entry and reletting elect to terminate this Lease Agreement for any such breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason ofof such breach, Landlord's failure including the cost of recovering the Premises, reasonable attorney’s fees, and including the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to relet the Premises or collect any rent due upon such reletting. Whether or not reserved in this Lease is terminated, Tenant nevertheless shall remain liable Agreement for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Termstated term, less minus the amount of rentalrental loss which Tenant proves could have been reasonably avoided, if anyall of which amounts shall be immediately due and payable from Tenant to Landlord. Landlord shall also be entitled to any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant’s failure to comply with the requirements of this Lease Agreement.
c. Landlord may, which Landlord receives during at its option, instead of exercising any other rights or remedies available to it in this Lease Agreement or otherwise by law, statute or equity, spend such period from others money as is reasonably necessary to whom cure any default of Tenant herein and the Premises may amount so spent, and costs incurred, including reasonable attorney’s fees in curing such default, shall be rented (other than any paid by Tenant, as Additional Rent payable as a result Rent, upon demand.
d. In the event suit shall be brought for recovery of possession of the Premises, for the recovery of rent of any failure other amount due under the provisions of such this Lease Agreement, or because of the breach of any other person covenant herein contained on the part of Tenant to perform any of its obligations)be kept or performed, which damages and a breach shall be computed and payable in monthly installmentsestablished, in advanceTenant shall pay to Landlord all expenses incurred therefore, including a reasonable attorney’s fee, together with interest on all such expenses at the first day rate of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
ten percent (b10%) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of per annum from the date of Tenant's default) such breach of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation covenants of this Lease Agreement.
e. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future law, including any such right which laws in the event of Tenant would otherwise have if Tenant shall be being evicted or dispossessed for any cause, or in the event of Landlord obtaining possession of the Premises, by reason of the violation by Tenant of any of the covenants or conditions of this Lease Agreement, or otherwise. Tenant also waives any demand for possession of the Premises, and any demand for payment of rent and any notice of intent to re-enter the Premises, or of intent to terminate this Lease Agreement, other than the notices above provided in this Article, and waives any and every other notice or demand prescribed by any applicable statues or laws.
f. No remedy herein or elsewhere in this Lease Agreement or otherwise by law, statute or equity, conferred upon or reserved to Landlord or Tenant shall be exclusive of any other remedy, but shall be cumulative, and may be exercised from time to time and as often as the occasion may arise.
Appears in 2 contracts
Samples: Commercial Lease (Celcuity LLC), Commercial Lease (Celcuity LLC)
Default of Tenant. 21.1 Each The occurrence of any one or more of the following shall constitute an Event a "Default of Default: Tenant" under this Lease:
(a) Tenant's The failure by Tenant to make any payment of the Base Annual Fixed Rent, Additional Rent or any other sum payment required to be made by Tenant hereunder (i) within five collectively, "Rent"), as and when due, where such failure shall continue for seven (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (57) days after notice thereof from Landlord to Tenant; provided, however, that any such payment's due date; notice shall be in lieu of, and not in addition to, any notice required under California Code of Civil Procedure Section 1161.
(b) Tenant's The failure by Tenant to take possession observe or perform any of the Premises within sixty express or implied covenants or provisions of this Lease to be observed and performed by Tenant, other than as specified in subsection (60a) days of the Lease Commencement Date; (c) Tenant's violation or above, where such failure to perform or observe any other covenant or condition, which violation or failure continues shall continue for a period of thirty (30) days after written notice thereof from LandlordLandlord to Tenant; provided, or however, that any such notice shall be in lieu of, and not in addition to, any notice required under California Code of Civil Procedure Section 1161; provided, further, that if the nature of Tenant's default is such violation or failure is remediable but is of such a nature that it canmore than thirty (30) days are reasonably required for its cure, then Tenant shall not be remedied deemed to be in default if Tenant shall commence such cure within such thirty (30) day period, then for period and thereafter diligently prosecute such longer period cure to completion within sixty (not to exceed ninety (9060) days subject to Force Majeure from the date of such notice from Landlord.
(c) as may reasonably be required, provided that An assignment by Tenant promptly commences and diligently pursues such remedy to completion; or any guarantor of Tenant for the benefit of creditors.
(d) The taking by execution or levy of Tenant's abandonment or vacation of the Premises; leasehold interest.
(e) an Event The filing of Bankruptcy as specified in Article XXII with respect to a lien or other involuntary encumbrance against Tenant's leasehold interest or Tenant's other property, including said leasehold interest, or against the property of any guarantor of Tenant, any general partner of which filing shall not be discharged within thirty (30) days after Tenant (a "General Partner") or any Guarantor; or receives notice thereof.
(f) Tenant's dissolution The filing of a petition by Tenant or any guarantor of Tenant for liquidation, or for reorganization or an arrangement under any provision of any bankruptcy law or code as then in force and effect.
21.2 If there shall be (g) The filing of an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession involuntary petition under any of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit bankruptcy law or code against Tenant or any guarantor of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under Tenant and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but involuntary petition shall not be obligated todismissed within sixty (60) days thereafter.
(h) The appointment of a custodian, relet receiver or similar agent shall be authorized or appointed to take charge of all or substantially all of the Premises assets of Tenant or any part thereofguarantor of Tenant.
(i) The dissolution or liquidation (except in connection with a transaction permitted pursuant to the second paragraph of Section 6.14) of Tenant or any guarantor of Tenant or the adoption of any plan or the commencement of any proceeding, alone the result of which is or together with other premisesis intended to include the dissolution or liquidation of Tenant or any guarantor of Tenant.
(j) The entry of an order in any proceeding by or against Tenant or any guarantor of Tenant decreeing or permitting the dissolution of Tenant or any guarantor of Tenant or the winding up of its affairs.
(k) The occurrence of a default by Tenant under the Other Lease, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations Tenant hereby also agreeing that a Default of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not Tenant under this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until a default of Tenant under the expiration Other Lease, affording Landlord all of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as remedies available under Section 15 B of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeOther Lease.
Appears in 2 contracts
Samples: Lease Agreement (Signal Pharmaceuticals Inc), Lease Agreement (Signal Pharmaceuticals Inc)
Default of Tenant. 21.1 Each The occurrence of any of the following shall constitute an Event a material default and breach of Default: this Lease by Xxxxxx:
(a1) Tenant's Any failure by Tenant to make any payment of pay the Base Rent, which for purposes of this Article Thirteen shall be defined to mean Base Rent and Additional Rent required to be paid by Tenant pursuant to the terms of this Lease, within ten (10) days after the due date thereof without any further notice being required from Landlord to Tenant (except that Landlord agrees to give Tenant written notice of default under this Section 13.01 but shall not be required to provide such notice more than once in any one Lease year), or to pay any other sum monetary sums required to be paid hereunder within ten (i) within five (510) days after written notice from Landlord that such payment has not been made to Tenant therefor;
("2) The abandonment or vacation of the Premises by Tenant for more than ten (10) consecutive business days unless Tenant shall have provided prior notice to Landlord Notice") or (ii) if Tenant has received three and given Landlord reasonable assurance of its continued performance under the Lease;
(3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's A failure by Tenant to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to observe and perform or observe any other covenant provisions of this Lease to be observed or conditionperformed by Tenant, which violation or where such failure continues for a period of thirty (30) days after notice thereof from Landlordby Landlord to Tenant; provided, or however, that Tenant shall not be deemed to be in default if the nature of such violation or failure is remediable but is of such a nature that it the same cannot reasonably be remedied cured within such thirty (30) day period and Tenant shall within such period commence such cure and thereafter diligently prosecute such cure and complete the cure within no more than ninety (90) days, which time shall be extended only upon Xxxxxxxx's written consent to a longer period, then for . Xxxxxxxx's consent to extend the period of cure shall not be unreasonably withheld so long as Tenant demonstrates that the cure could not have been timely completed by expenditure of additional funds and Tenant has specifically designated reserves on its books to cover the full expense of such longer cure. In no event shall Landlord's consent to a period (not to exceed of cure of more than ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) required if Tenant's abandonment or vacation failure to cure places Landlord in breach of the Premises; (e) an Event of Bankruptcy as specified in Article XXII any agreements it may have with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Defaultother parties, including an Event of Default prior any lender or other tenant in the Office Building. Any consent to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed longer period by Landlord shall cease, without prejudice, however, to Landlordbe conditioned upon Xxxxxx's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit continued use of its remedies and in renting best efforts to diligently complete the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causecure.
Appears in 1 contract
Samples: Lease (American Business Financial Services Inc /De/)
Default of Tenant. 21.1 Each Provided and it is hereby expressly agreed that if and whenever the Annual Rent or Additional Rent hereby reserved or any part thereof shall not be paid on the day appointed for payment thereof, whether lawfully demanded or not, or in case of breach or non observance or non performance of any of the following covenants, agreements, provisos, conditions or Rules and Regulations on the part of the Tenant to be kept, observed or performed, , or in case the Term shall constitute an Event be taken in execution or attachment for any cause whatever, then and in every such case, it shall be lawful for the Landlord thereafter to enter into and upon the Leased Premises or any part thereof in the name of Defaultthe whole and the same to have again, repossess and enjoy as of its former estate, anything in this Lease contained to the contrary notwithstanding other than the proviso to this paragraph; PROVIDED that the Landlord shall not at any time have the right to re enter and forfeit this Lease by reason of the Tenant’s default in: (ai) Tenant's failure to make any the payment of the Base Rentrent reserved by this Lease, Additional Rent or any other sum unless and until the Landlord shall have given to the Tenant written notice setting forth the default complained of and the Tenant shall have the right during ten (i) within five (510) days next following the date on such notice from Landlord that to cure any such default in payment has not been made ("Landlord Notice") of rent, or (ii) if the breach or non-observance or non-performance of any of the covenants, agreements, provisos, conditions or Rules and Regulations on the part of the Tenant has received three to be kept, observed or performed, unless and until the Landlord shall have given to the Tenant written notice setting forth the default complained of, and the Tenant shall have the right during fifteen (3) such Landlord Notices during such Lease Year within five (515) days after next following the date on such payment's due date; notice to cure any such default (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not of time to exceed ninety (90) days subject which the Landlord may agree provided the Tenant is actively taking steps to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation cure). In case without the written consent of the Premises; (e) an Event of Bankruptcy as specified Landlord, the Leased Premises shall be used by any other person than the Tenant or for any other purpose than that for which the same were let or in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") case the Term or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession goods and chattels of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for at any causetime seized in execution or attachment by any creditor of the Tenant or if the Tenant makes any bulk sale, then in any such case this lease shall, at the option of the Landlord, cease and determine and the Term shall immediately become forfeited and void in accordance with the provisions of Article 15, Right of Termination, herein.
Appears in 1 contract
Default of Tenant. 21.1 Each A. If any one or more of the following shall constitute an Event of Defaultoccurs: (a1) Tenant's failure to make any a rent payment of the Base Rent, Additional Rent or any other sum payment due from Tenant to Landlord shall be and remain unpaid in whole or in part for more than ten (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after Tenant’s receipt of written notice that the same is past due, provided however that Landlord shall only be obligated to provide two (2) such payment's notices in any 12-month period, and thereafter it shall be a default if a rent payment or any other payment due datefrom Tenant to Landlord shall be and remain unpaid in whole or in part for more than ten (10) days after the same is due; (b2) Tenant's failure to take possession Tenant shall violate or default on any of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's other covenants, agreements, stipulations or conditions herein, and such violation or failure to perform or observe any other covenant or condition, which violation or failure continues default shall continue for a period of thirty (30) days after written notice thereof from Landlord, or if Landlord of such violation or failure is remediable but is of such a nature that it cannot default (which 30-day period shall be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be requiredreasonable extension, up to a total of 60 days, provided that Tenant promptly commences has commenced cure and is diligently pursues such remedy pursuing the same to completion), except that if a specific time period following notice by Landlord for Tenant to cure such violation or default is set forth elsewhere in this Lease Agreement, no additional period of notice and cure shall be afforded under this Article; (d3) Tenant's abandonment Tenant shall commence or vacation have commenced against Tenant proceedings under a bankruptcy, receivership, insolvency or similar type of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantoraction; or (f4) Tenant's dissolution Tenant shall purport to assign this Lease Agreement or liquidation.
21.2 If there sublet, license, mortgage or transfer this Lease Agreement or the Premises hereunder in violation of the provisions of Article 16 of this Lease Agreement; then it shall be an Event of Defaultoptional for Landlord, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole optionwithout further notice or demand, to cure such default or to declare this Lease Agreement forfeited and the said Term ended, or to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate only Tenant's right of possession and take to possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention and to re-enter the Premises being hereby expressly waived. If necessaryPremises, Landlord may proceed subject to recover possession of the Premises under applicable Laws, and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for damages by reason of such forfeiture or re-entry; but notwithstanding re-entry by Landlord or termination only of Tenant's right to possession of the Premises, the liability of Tenant for the rent and all other sums provided herein shall not be relinquished or extinguished for the balance of the Term of this Lease Agreement and Landlord shall be entitled to periodically xxx Tenant for all sums due under this Lease Agreement or which become due prior to judgment, but such suit shall not bar subsequent suits for any further sums coming due thereafter. Tenant shall be responsible for, nor shall Tenant's obligations in addition to the rentals and other sums agreed to be diminished paid hereunder (as more particularly set forth below), the reasonable cost of any necessary maintenance, repair, restoration, reletting (including related cost of removal or modification of tenant improvements) or cure as well as reasonable attorneys’ fees incurred or awarded in any suit or action instituted by reason of, Landlord's failure Landlord to relet enforce the Premises or collect any rent due upon such reletting. Whether or not provisions of this Lease is terminatedAgreement, Tenant nevertheless shall remain liable for any Base Rentregain possession of the Premises, Additional Rent or damages which may be the collection of the rentals due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to timehereunder. Tenant shall also be liable to Landlord for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder payment of the Lease Term, less a late charge in the amount of rentalfive percent (5%) of the rental installment or other sum due Landlord hereunder if said payment has not been received within ten (10) days from the date said payment becomes due and payable. Tenant agrees to pay interest at the rate of ten percent (10%) per annum or the maximum permissible rate under the applicable usury statutes, if anywhichever is less, on all rentals and other sums due Landlord hereunder not paid within ten (10) days from the date same become due and payable. All of Landlord’s rights and remedies under this Lease Agreement shall be cumulative with and in addition to any and all rights and remedies which Landlord receives during such period from others may have at law or in equity. Any specific right or remedy provided for in any provision of this Lease Agreement shall not preclude the concurrent or consecutive exercise of a right or remedy provided for in any other provision hereof. Landlord shall exercise at least the level of effort required by applicable Laws to whom mitigate its damages.
B. Notwithstanding anything in Article 20 A above or elsewhere in this Lease Agreement to the contrary, in the event Tenant shall vacate the Premises may be rented for a period of ninety (90) consecutive days (other than any Additional Rent payable due to casualty loss or for temporary purposes such as remodeling or renovation), such vacation by Tenant alone shall not be deemed a result of any failure default by Tenant under this Lease Agreement, but in such case Landlord shall have the option, but not the obligation, to terminate this Lease Agreement by giving written notice of such other person termination to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
Appears in 1 contract
Samples: Lease Agreement (SomaLogic, Inc.)
Default of Tenant. 21.1 20.1 Each of the following shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within where such failure to pay continues for five (5) days Landlord's delivery of written notice from Landlord that of such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due datefailure to pay; (b) Tenant's failure to take possession of the Premises within sixty thirty (6030) days of after notice to Tenant that the Lease Commencement Datesame are Substantially Complete; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of condition within thirty (30) days after notice thereof from Landlord, ; or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, required provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII XXI with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 20.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Lease Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate TenantXxxxxx's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to LandlordXxxxxxxx's right to recover from Tenant all rent and other sums due under accrued through the terms and conditions later of this Leasetermination or Landlord's recovery of possession. Whether or not this Lease and/or TenantXxxxxx's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' attorneys fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord additional rent which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for TenantXxxxxx's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: ; or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that which would have become due through during the date on which remainder of the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same periodTerm, which Present Value Damages damages shall be payable to Landlord in a one lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
20.3 Landlord's rights and remedies set forth in this Lease are cumulative and in addition to Xxxxxxxx's other rights and remedies at law or in equity, including those available as a result of any anticipatory breach of this Lease. Landlord's exercise of any such right or remedy shall not prevent the concurrent or subsequent exercise of any other right or remedy. Landlord's delay or failure to exercise or enforce any of Landlord's rights or remedies or Tenant's obligations shall not constitute a waiver of any such rights, remedies or obligations. Landlord shall not be deemed to have waived any default unless such waiver expressly is set forth in an instrument signed by Landlord. If Landlord waives in writing any default, then such waiver shall not be construed as a waiver of any covenant or condition set forth in this Lease except as to the specific circumstances described in such written waiver. Neither Tenant's payment of a lesser amount than the sum due hereunder nor Xxxxxx's endorsement or statement on any check or letter accompanying such payment shall be deemed an accord and satisfaction, and Xxxxxxxx may accept the same without prejudice to Landlord's right to recover the balance of such sum or to pursue any other remedy available to Landlord. Xxxxxxxx's re-entry and acceptance of keys shall not be considered an acceptance of a surrender of this Lease.
20.4 If more than one natural person and/or entity shall execute this Lease as Tenant, then the liability of each such person or entity shall be joint and several. Similarly, if Tenant is a general partnership or other entity the partners or members of which are subject to personal liability, then the liability of each such partner or member shall be joint and several.
20.5 If Tenant fails to make any payment to any third party or do any act herein required to be made or done by Tenant, then Landlord may, but shall not be required to, make such payment or do such act. Xxxxxxxx's taking such action shall not be considered a cure of such failure by Tenant or prevent Landlord from pursuing any remedy to which it is otherwise entitled in connection with such failure. If Landlord elects to make such payment or do such act, then all expenses incurred, plus interest thereon at the lesser of (i) a rate per annum (the "Default Rate") which is five (5) whole percentage points higher than the highest Prime Rate as published in the Wall Street Journal's Money Rates Column or if such rate is no longer published then the rate which is five (5) whole percentage points in excess of the Prime Rate of NationsBank of Virginia, N.A., or (ii) the highest non-usurious rate permitted under the laws of the jurisdiction where the Building is located, from the date incurred to the date of payment thereof by Tenant, shall constitute Additional Rent.
Appears in 1 contract
Default of Tenant. 21.1 Each a. In the event of the following shall constitute an Event any failure of Default: (a) Tenant's failure Tenant to make pay any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year rental due hereunder within five (5) days after such payment's receipt of written notice that the same is due date; (bprovided, however, that Landlord shall have the obligation to provide written notice of a rental default only one (1) Tenant's time during any twelve (12) month period), or any failure to take possession perform any other of the Premises terms, conditions or covenants of this Lease to be observed or performed by Tenant for more than twenty (20) days after written notice of such failure shall have been given to Tenant, or such additional time as may be necessary if such failure cannot be cured within such twenty (20) day period, or if Tenant or an agent of Tenant shall falsify any report required to be furnished to Landlord pursuant to the terms of this Lease, or if Tenant shall become bankrupt, or file any debtor proceedings or any person shall take or have against Tenant in any court pursuant to any statue either of the United States or of any state a petition of bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Tenant’s property, and such proceeding is not removed within sixty (60) days after filing, or if Tenant or any such guarantor makes an assignment for the benefit or creditors, or petitions for or enters into such an arrangement, or if Tenant shall suffer this Lease to be taken under any writ of execution, then in any such event Tenant shall be in default hereunder, and Landlord, in addition to other rights of remedies it may have, shall have the immediate right or re-entry and may remove all persons and property from the Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost of, and for the account of Tenant, all without service of notice or resort to legal process and without being guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby.
b. Should Landlord elect to re-enter the Premises, as herein provided, or should it take possession of the Premises pursuant to legal proceedings or pursuant to any notice provided for by law, it may either terminate this Lease Commencement Dateor it may from time to time, without terminating this Lease, make such alterations and repairs as may be necessary in order to relet the Premises, and relet the Premises or any part thereof upon such term or terms (which may be for a term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions as Landlord in its reasonable discretion may deem advisable. Upon each such subletting 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 costs and expenses of such reletting, including brokerage fees and attorney’s fees and costs of such reasonable alterations (cconsistent with office use) and repairs; third, to the payment of the rent due and unpaid payment of future rent as the same may become due and payable hereunder. If such rentals received from such reletting during any month be less than that to be paid during that month by Tenant hereunder, Tenant's violation , upon demand, shall pay any such deficiency to Landlord. No such re-entry or taking possession of the Premises by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time after such re-entry and reletting elect to terminate this Lease for any such breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the Premises, reasonable attorney’s fees, and including the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in this Lease for the remainder of the stated term, minus the amount of rental loss which Tenant proves could have been reasonably avoided, all of which amounts shall be immediately due and payable from Tenant to Landlord. Landlord shall also be entitled to any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant’s failure to perform or observe comply with the requirements of this Lease, excluding, however, consequential damages.
c. Landlord may, at its option, instead of exercising any other covenant rights or conditionremedies available to it in this Lease or otherwise by law, which violation statue or failure continues for a period of equity, if Tenant has failed to cure the default within thirty (30) days after receipt of written notice thereof from Landlord, or if spend such violation or failure money as is remediable but is reasonably necessary to cure any default of Tenant herein and the amount so spent, and costs incurred, including attorney’s fees in curing such a nature that it cannot default, shall be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to paid by Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidationand additional rent, upon demand.
21.2 If there d. In the event suit shall be an Event brought for recovery of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The , for the recovery of rent of any other amount due under the provisions of this Article shall operate as a notice to quitLease, or because of the breach of any other covenant herein contained on the part of Tenant to be kept or performed, and a breach shall be established, Tenant shall pay to Landlord all expenses reasonably incurred therefor, including a reasonable attorney’s fee, together with interest on all such expenses at the rate of ten percent (10%) per annum from the date of such breach of the covenants of this Lease.
e. Tenant waives any demand for possession of the Premises, and any demand for payment of rent and any notice to quit or of Landlord's intention intent to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of VirginiaPremises, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects of intent to terminate this Lease and/or elects to terminate Tenant's right of possessionLease, then everything contained other than the notices above provided in this Article, and waives any and every other notice or demand prescribed by any applicable statues or laws.
f. No remedy herein or elsewhere in this Lease or otherwise by law, statue or equity, conferred upon or reserved to Landlord or Tenant shall be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and exclusive of any other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord mayremedy, but shall not be obligated tocumulative, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others exercised from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to time and as often as the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises occasion may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causearise.
Appears in 1 contract
Samples: Commercial Lease (Ciprico Inc)
Default of Tenant. 21.1 Each of the following acts or omissions of Tenant ----------------- shall constitute an "Event of Default: ":
(ai) Tenant's failure Failure or refusal to make any payment of the Base Rentpay Basic Rental, Additional Rent or any other sum (i) amount to be paid by Tenant to Landlord hereunder within five (5) business calendar days after notice from Landlord that such payment has not been made ("Landlord Notice") the same is due or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within payable hereunder; said five (5) days after such payment's due date; (b) Tenant's failure to take possession business day period shall be in lieu Initials: ________________ ________________ of, and not in addition to, the notice requirements of Section 1161 of the Premises within sixty California Code of Civil Procedure or any similar or successor law;
(60ii) days of the Lease Commencement Date; Except as set forth in items (ci) Tenant's violation or above and (iii) through and including (vi) below, failure to perform or observe any other covenant or condition, which violation condition of this Lease to be performed or failure continues for a period of observed within thirty (30) days after following written notice thereof from Landlord, or if such violation or failure is remediable but is to Tenant of such a failure; provided, however, if the nature of such default is such that it the same cannot be remedied reasonably cured within such a thirty (30) day period, then Tenant shall not be deemed to be in default if Tenant diligently commences such cure within such period and thereafter diligently proceeds to rectify and cure said default. Such thirty (30) day notice shall be in lieu of, and not in addition to, any required under Section 1161 of the California Code of Civil Procedure or any similar or successor law;
(iii) The taking in execution or by similar process or law (other than by eminent domain) of the estate hereby created;
(iv) The filing by Tenant or any guarantor hereunder in any court pursuant to any statute of a petition in bankruptcy or insolvency or for reorganization or arrangement for the appointment of a receiver of all or a portion of Tenant's property; the filing against Tenant or any guarantor hereunder of any such longer period (petition, or the commencement of a proceeding for the appointment of a trustee, receiver or liquidator for Tenant, or for any guarantor hereunder, or of any of the property of either, or a proceeding by any governmental authority for the dissolution or liquidation of Tenant or any guarantor hereunder, if such proceeding shall not to exceed be dismissed or trusteeship discontinued within ninety (90) days subject after commencement of such proceeding or the appointment of such trustee or receiver; or the making by Tenant or any guarantor hereunder of an assignment for the benefit of creditors. Tenant hereby stipulates to Force Majeure ) as may reasonably be requiredthe lifting of the automatic stay in effect and relief from such stay for Landlord in the event Tenant files a petition under the United States Bankruptcy laws, provided that for the purpose of Landlord pursuing its rights and remedies against Tenant promptly commences and diligently pursues such remedy to completion; and/or a guarantor of this Lease;
(dv) Tenant's abandonment failure to cause to be released any mechanics liens filed against the Premises or vacation of the PremisesProject within twenty (20) days after the date the same shall have been filed or recorded; or
(e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (fvi) Tenant's dissolution failure to observe or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior perform according to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a Articles 7, 17 or 25 within ten (10) business days after notice to quit, any other notice to quit or of from Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
Appears in 1 contract
Samples: Standard Office Lease (Newport Corp)
Default of Tenant. 21.1
(a) Each of the following events shall constitute an Event of a default (“Default”) by Tenant under this Lease: (ai) Tenant's failure if Tenant fails to make pay any payment of the Base Rent, Additional Rent (or any other sum (iinstallment thereof) within five (5) days after the same shall be due and payable, provided that Landlord shall not be obligated to provide such notice from Landlord that and opportunity to cure more than one (1) time in any twelve-month period, after which no further notice with respect to any such payment has not been made ("Landlord Notice") or failure to pay shall be required for the twelve-month period succeeding such notice in order for a Default to have occurred under this Lease; (ii) if Tenant has received three breaches or fails to observe or perform any term, condition or covenant of this Lease (3) other than those involving the payment of Rent), and such Landlord Notices during such Lease Year breach or failure is not cured within five twenty (520) days after Xxxxxx’s receipt of notice thereof, unless such payment's due datecondition cannot reasonably be cured within such twenty (20) days, in which case Tenant must commence such cure within said twenty (20) days and diligently pursue said cure to its completion (provided, however, if such breach or failure creates a hazard, public nuisance or dangerous situation, said twenty (20) day grace period shall be reduced to forty eight (48) hours after Xxxxxx’s receipt of notice); (iii) if Tenant vacates or abandons the Premises; (iv) if Tenant fails to carry and maintain the insurance required by this Lease; (v) if Tenant fails to submit its plans and specifications for the Tenant Improvements to Landlord within the time periods provided for in Exhibit B and such failure is not cured within ten (10) days after Tenant’s receipt of notice thereof; (vi) if Tenant effectuates a Transfer in violation of this Lease; or (vii) if Guarantor (if any) shall default in any of its obligations under the Guaranty (if any) or if there shall be a material decrease in the tangible net worth of Guarantor (if any).
(b) If a Default described in this Section occurs, Landlord shall have all the rights and remedies provided in this Section, in addition to all other rights and remedies available under this Lease or provided at law or in equity.
(c) Upon the occurrence of any event of Default described in this Section, Landlord may, upon notice to Tenant's failure , terminate this Lease, or terminate Tenant’s right to take possession of the Premises within sixty without terminating this Lease (60) days as Landlord may elect). If the Lease or Xxxxxx’s right to possession under this Lease are at any time terminated under this Section, or otherwise, Xxxxxx shall immediately surrender and deliver the Premises peaceably to Landlord. If Tenant fails to do so, Landlord shall be entitled to re-enter, without process and without notice (any notice to quit or of re-entry being hereby expressly waived), using such force as may be reasonably necessary; and, alternatively, shall be entitled to the benefit of all provisions of law respecting the speedy recovery of possession of the Lease Commencement Date; Premises (cwhether by summary proceedings or otherwise) Tenant's violation any notice to quit or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; re-entry being expressly waived.
(d) Upon the occurrence of any event of Default described in this Section, Landlord may also perform, on behalf and at the expense of Tenant's abandonment , any obligation of Tenant under this Lease which Tenant fails to perform, the cost of which (together with an administrative fee equal to twenty percent (20%) of such cost to cover Landlord’s overhead in connection therewith) shall be paid by Tenant to Landlord upon demand. In performing any obligations of Tenant, Landlord shall incur no liability for any loss or vacation damage that may accrue to Tenant, the Premises or Tenant’s Property by reason thereof, except if caused by Landlord’s willful, wanton and malicious act. The performance by Landlord of any such obligation shall not constitute a release or waiver of any of Tenant’s obligations under this Lease.
(e) Upon termination of this Lease or of Tenant’s right to possession under this Lease, Landlord may at any time and from time to time relet all or any part of the Premises for the account of Tenant or otherwise, at such rentals and upon such terms and conditions as Landlord shall deem appropriate. In the event that Landlord shall relet the Premises, then rentals received by Landlord from such reletting shall be applied: first, to the payment of such expenses as Landlord may incur in recovering possession of the Premises, including legal expenses and attorneys’ fees, in placing the Premises in good order and condition and in preparing or altering the same for re-rental; second, to the payment of such expenses, commissions and charges as may be incurred by or on behalf of Landlord in connection with the reletting of the Premises; (e) and third, to the fulfillment of the covenants of Tenant under the Lease, including the various covenants to pay Rent. Any reletting by Landlord shall not be construed as an Event election by Landlord to terminate this Lease unless notice of Bankruptcy as specified in Article XXII with respect such intention is given by Landlord to Tenant. Notwithstanding any reletting without termination of this Lease, Landlord may at any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, time thereafter elect to terminate this Lease. In additionany event, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's ’s obligations hereunder be diminished by reason of, Landlord's any failure by Landlord to relet the Premises or any failure by Landlord to collect any rent sums due upon such reletting. Whether .
(f) If this Lease, or not Xxxxxx’s right to possession of the Premises, is terminated by Landlord pursuant to the provisions of this Lease is terminatedSection, Tenant nevertheless shall remain liable to Landlord for (a) any Base Rent, Additional Rent damages or damages other sums which may be due or sustained prior to such defaulttermination, (b) all reasonable costs, fees and expenses (including without limitation reasonable attorneys' ’ fees, brokerage feescommissions, advertising costs, and expenses incurred in placing the Premises in first-class rentable condition and tenant finish necessitated to obtain the new tenantcondition) incurred by Landlord in pursuit of its remedies hereunder and in renting the Premises to others from time to time. Tenant shall also be liable for ; and (c) additional damages which at Landlord's Xxxxxxxx’s election shall be either::
(ai) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during from the remainder date of such termination through the expiration of the Lease TermTerm (or what would have been the expiration of the Term but for any termination thereof), less the amount net avails of rentalreletting, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable received as a result of any failure of such other person Person to perform any of its obligationsobligation to Landlord), which damages amount shall be computed due and payable in monthly installments, in advance, by Tenant to Landlord on the first day of each calendar month following Tenant's default dates such Rent and continuing until other sums above specified are due under the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be Lease; any suit or action brought to collect any such damages for any month(s), and such suits month shall not in any manner prejudice Landlord's the right of Landlord to collect any such damages for any subsequent month(s), month by a similar proceeding; or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(bii) an amount equal to the Present Value Damages. "Present Value Damages" shall be accelerated damages in an amount equal to the present value (as of the date of Tenant's defaultsuch termination) of the difference between (i) the Base Rent and Additional Rent that which would have become due through the date on which expiration of the Lease Term (or what would have expired been such expiration but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same periodany termination thereof), which Present Value Damages liquidated and agreed final damages shall be payable to Landlord in a one lump sum on demand. For purpose purposes of this Section, “present value value” shall be computed by discounting such amount to present worth at a discount rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration nearest to the location of the operation Building. Damages shall be due and payable immediately upon demand by Landlord following any termination of this Lease under or Xxxxxx’s right to possession of the Premises pursuant to this Section.
(g) If, as the result of Xxxxxx’s Default at any present or future lawtime prior to the Lease Commencement Date, including any such right which this Lease shall be terminated, Landlord and Tenant would otherwise have if agree that, at Landlord’s sole option, Tenant shall pay to Landlord on account of such Default, as liquidated and agreed damages (and not as a penalty), immediately upon demand by Landlord, a sum equal to such amount as would have constituted one year’s Rent had the Rent Commencement Date occurred, the amount of any brokerage fees incurred by Landlord in connection with entering into this Lease with Tenant and any and all costs and expenses incurred by Landlord in performing any part of the Tenant Improvements as set forth in Exhibit B.
(h) No reference to any specific right or remedy in this Lease shall preclude Landlord from exercising any other right, from having any other remedy, or from maintaining any action to which it may otherwise be dispossessed for any cause.entitled under this Lease, at law or in equity.
Appears in 1 contract
Samples: Lease (Assure Holdings Corp.)
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: a default by Tenant under this Lease:
(a) Tenant's Tenant fails to pay any amount required under this Lease as and when the same becomes due and said failure to make any payment of the Base Rent, Additional Rent or any other sum is not cured within ten (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after such payment's due datewritten notice thereof from Landlord; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure Tenant fails to perform or observe any other covenant or term, condition, which violation or obligation under this Lease and said failure continues for a period of is not cured within thirty (30) days after written notice thereof from Landlord, or if . Upon the occurrence of any such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to default by Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, option to pursue any one or more of the following remedies without any notice or demand whatsoever: terminate this Lease. In addition, with or in which event Tenant shall immediately surrender the Leased Premises to Landlord, and if Tenant fails to do so Landlord may, without terminating this Lease, prejudice to any other remedy which Landlord may re-enterhave for omission or arrearages in Rent, terminate Tenant's right of possession enter upon and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, Leased Premises and expel or remove Tenant and any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as person who may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under occupying the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Leased Premises or any part thereof, alone without being liable for prosecution or together with other premises, for such rent any claim of damages therefor; or enter upon and upon such terms and conditions (which may include concessions or free rent and alterations take possession of the PremisesLeased Premises and expel or remove Tenant and any other person who may be occupying the Leased Premises or any part thereof without being liable for prosecution or any claim for damages therefor, with or without having terminated this Lease. In addition to the other remedies provided in this Lease, and anything contained herein to the contrary notwithstanding, Landlord shall be entitled to restrain any default or violation, or attempted or threatened default or violation of any of the terms, covenants, conditions or other provisions of this Lease, by injunction, order of specific performance or other appropriate equitable relief. The remedies provided to Landlord hereunder are intended to be cumulative, and may be exercised by Landlord in any order, or simultaneously, without such exercise being a waiver by Landlord of its right to exercise any other remedy granted to Landlord hereunder (or under applicable Laws) as Landlord, in its sole discretion, may determine, but with respect to the same default. Exercise by Landlord of any one or more remedies hereunder granted or otherwise available shall not be liable for, nor shall Tenant's obligations deemed to be diminished by reason of, Landlord's failure to relet the Premises an acceptance or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder surrender of the Lease TermLeased Premises by Tenant, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), whether by agreement or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any it being understood that such right which Tenant would otherwise have if Tenant shall surrender can be dispossessed for any causeaffected only by the written agreement of Landlord and Tenant.
Appears in 1 contract
Samples: Lease Agreement
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: (a) Tenant's In the event of any failure of Lessee to make pay any payment of the Base Rent, Additional Rent or any other sum rental due hereunder within ten (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation same shall be due, or any failure to perform or observe any other of the term, condition or covenant of this Lease to be observed or condition, which violation or failure continues performed by Lessee for a period of more than thirty (30) days after written notice thereof from Landlordof such failure shall have been given to Lessee, or if Lessee or an agent of Lessee shall falsify any report required to be furnished to Lessor pursuant to the terms of this Lease, or if Lessee or any guarantor of this Lease shall become bankrupt or insolvent, or file any debtor proceedings or any person shall take or have against Lessee or any guarantor of this Lease 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 for the appointment of a receiver or trustee of all or a portion of Lessee's or any such violation guarantor's property, or failure is remediable but is if Lessee or any such guarantor makes an assignment for the benefit of such a nature that it cannot creditors, or petitions for or enters into an arrangement, or if Lessee shall abandon the Demised Premises or suffer this Lease to be remedied within such thirty (30) day periodtaken under any writ of execution, then for in any such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there event Lessee shall be an Event in default hereunder, and Lessor, in addition to other rights of Defaultremedies it may have, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the rightimmediate right of re-entry and may remove all persons and property from the Demised Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of the Lessee, at its sole optionall without service of notice or resort to legal process and without being guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby.
(b) Should Lessor elect to re-enter the Demised Premises as herein provided, or should it take possession of the Demised Premises pursuant to legal proceedings or pursuant to any notice provided for by law, it may either terminate this Lease. In additionLease or it may from time to time, with or without terminating this Lease, Landlord make such alterations, and repairs as may be necessary in order to relet the Demised Premises and relet the Demised Premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions as Lessor in its sole discretion may deem advisable. Upon each such subletting all rentals received by the Lessor from such reletting shall be applied first to the payment of any indebtedness other than rent due hereunder from Lessee to Lessor; second, to the payment of any costs and expenses of such reletting, including brokerage fees, attorney's fees and costs; third, to the payment of accrued and unpaid rent hereunder, and the remainder, if any, shall be held by Lessor and applied in payment of future rent as the same may become due and payable hereunder. If such rentals received from such reletting during any month are less than that to be paid during that month by Lessee hereunder, Lessee, upon demand, shall pay any such deficiency to Lessor. No such re-enter, terminate Tenant's right of possession and take entry or taking possession of the Demised Premises by Lessor shall be construed as an election on Lessor's part to terminate this Lease unless a written notice of such intention be given to Lessee or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Lessor may at any time after such re-entry and reletting elect to terminate this Lease for such previous breach. Should Lessor at any time terminate this Lease for any such breach, in addition to any other remedies it may have, it may recover from Lessee all damages it may incur by reason of such breach, including the cost of recovering the Demised Premises. The , the cost of reletting the Demises premises, reasonable attorney's fees, and including the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in this Lease for the remainder of the stated term over the then reasonable rental value of the Demised Premises for the remainder of the stated term, all of which amounts shall be immediately due and payable from Lessee to Lessor.
(c) Lessor may, at its option, instead of exercising any other rights or remedies available to it in this Lease or otherwise by law, statute or equity, spend such money as is reasonable necessary to cure any default of Lessee herein and the amount so spent, and costs incurred, including attorney's fees in curing such default, shall be paid by Lessee, as Additional Rent, upon demand.
(d) In the event suit shall be brought for recovery of possession of the Demised Premises, for the recovery of rent or any other amount due under the provisions of this Article shall operate as a notice to quit, Lease or because of the breach of any other covenant herein contained on the part of the Lessee to be kept or performed, and a breach shall be established, Lessee shall pay to Lessor all expenses incurred therefore, including a reasonable attorney's fee, together with interest on all 123 such expenses at the rate of eighteen percent (18%) per annum from the date of such breach of the covenants of this Lease.
(e) Lessee hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Lessee being evicted or dispossessed for any cause, or in the event of Lessor obtaining possession of the Demised Premises, by reason of the violation by Lessee of any of the covenants or conditions of this Lease, or otherwise. Lessee also waives any demand for possession of the Demised Premises, and any demand for payment of rent and any notice to quit or of Landlord's intention intent to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of VirginiaDemised Premises, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects of intent to terminate this Lease and/or elects to terminate Tenant's right of possessionLease, then everything contained other than the notices provided in this Article, and waives any and every other notice or command prescribed by any applicable statutes or laws.
(f) No remedy herein or elsewhere in this Lease or otherwise by law, statute or equity, conferred upon or reserved to Lessor or Lessee shall be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and exclusive of any other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord mayremedy, but shall not be obligated tocumulative, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others exercised from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to time and as often as the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises occasion may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causearise.
Appears in 1 contract
Samples: Office/Warehouse Lease (Childrens Broadcasting Corp)
Default of Tenant. 21.1 Each If any one or more of the following shall constitute an happen (hereinafter referred to as "Event or Events of Default: "):
(a) Tenant's failure to make any If default shall be made in the due and punctual payment of the Base Rentbase rent and all other charges payable under this lease when and as the same shall become due and payable, Additional Rent or any other sum and such default shall continue for a period of ten (i) within five (510) days after written notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if to Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due datewithout being cured by Tenant; or
(b) Tenant's failure to take possession If default shall be made by Tenant in the performance of or compliance with any of the Premises within sixty covenants, agreements, terms or conditions contained in this lease, other than that contained in subsection (60a) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or conditionhereof, which violation or failure continues and such default shall continue for a period of thirty (30) days after written notice thereof from Landlordof said defaults received by Tenant, and Tenant shall
(c) If Tenant shall file a voluntary petition in bankruptcy or if such violation shall be adjudicated a bankrupt or failure is remediable but is insolvent or shall file any petition or answer seeking any arrangement, liquidation, dissolution or similar relief under present or future federal bankruptcy law or any other applicable state or federal law or shall seek or consent to or acquiesce in the appointment of such a nature that it cannot be remedied within such thirty (30) day periodany trustee, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that receiver or liquidator of Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of any or all of its properties or of the Premises; , and, if within seventy-five (e75) an Event days after the commencement of Bankruptcy any proceeding against Tenant as specified enumerated in Article XXII with respect to Tenantthis subsection, said proceeding has not been dismissed or if within seventy-five (75) days after the appointment of any general partner trustee, receiver or liquidator of Tenant (a "General Partner") for all or any Guarantor; or (f) portion of Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Defaultproperties, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but appointment shall not be obligated tovacated or otherwise stayed; then and in any such event Landlord, relet at any time thereafter, as long as such default continues, may give notice to Tenant specifying such event of default or events of default and stating that this lease and the Premises or any part thereofterm hereby demised shall expire and terminate on the date specified in such notice, alone or together with other premiseswhich shall be at least ten (10) days after giving such notice, for such rent and upon the date specified in said notice this lease shall terminate and expire. Upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, termination Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such defaultas hereinafter provided unless before said termination date Tenant has paid all arrearages of rent, all costs, fees other amounts payable by Tenant under this lease and all costs or expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such said default, including reasonable attorneys' fees and all other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would defaults existing at that time under this lease have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), been fully cured or Landlord may defer any such suit until after the expiration of the Lease Term, satisfied by Tenant in which event the cause consequences of action such default shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causenullified.
Appears in 1 contract
Default of Tenant. 21.1 Each The occurrence of any one or more of the following events shall constitute an Event a default and breach of Defaultthis Lease by Tenant: (a) Tenant's failure to make pay any payment rent or charges required to be paid by Tenant under this Lease within 5 days of the Base Rent, Additional Rent or any other sum (i) within five (5) days Landlord's delivery of written notice from Landlord to Tenant that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due datesaid amounts are past due; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premisesdemised premises; (c) Tenant's failure to promptly and fully perform any other covenant, condition or agreement contained in this Lease where such failure continues for 30 days after written notice from Landlord to Tenant of such default; (d) the levy of a writ of attachment or execution on this Lease or on any of the property of Tenant located in the premises; (e) the making by Tenant of a general assignment for the benefit of its creditors or of an Event arrangement, composition, extension or adjustment with its creditors; (f) the filing by or against Tenant of Bankruptcy as specified a petition for relief or other proceeding under federal bankruptcy laws or state or other insolvency laws, which petition in Article XXII with respect to Tenantnot removed or which action is not dismissed within 90 days of its filing, or the assumption by any general partner court or administrative agency, or by a receiver, trustee or custodian appointed by either, of jurisdiction, custody or control of the premises or of Tenant (a "General Partner") or any Guarantorsubstantial part of its assets or property; or (g) if the interest of Tenant under this Lease is held by a partnership or by more than one person or entity, the occurrence of any act or event described in parts (e) or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event above in respect of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession any partner of the Premisespartnership. The provisions of Except as otherwise specified by this Article shall operate as paragraph, in the event a notice to quitnonmonetary default occurs which cannot reasonably be cured within the time period specified above and Tenant commences corrective action within said time period, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure subject to relet the Premises or collect any rent due upon such reletting. Whether or not penalty under this Lease is terminated, so long as Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior prosecutes such corrective action diligently and continuously to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causecompletion.
Appears in 1 contract
Samples: Industrial Gross Lease (Pixar \Ca\)
Default of Tenant. 21.1 Each a. In the event of the following shall constitute an Event any failure of Default: (a) Tenant's failure Tenant to make pay any payment of the Base Rent, Additional Rent or any other sum rental due hereunder (i) within five (5) days after written notice, if there has been no prior notice from Landlord that such of rent payment has not been made default during the preceding twelve ("Landlord Notice"12) months, or otherwise (ii) if Tenant has received three within ten (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (6010) days of the Lease Commencement Date; when due (c) Tenant's violation without any notice requirement), or any failure to perform or observe any other covenant terms, conditions or condition, which violation covenants of this Lease to be observed or failure continues performed by Tenant for a period of more than thirty (30) days after written notice thereof from Landlordof such failure shall have been given to Tenant, or if Tenant or an agent of Tenant shall falsify any report required to be furnished to Landlord pursuant to the terms of this Lease, or if Tenant or any guarantor of this Lease shall become bankrupt or insolvent, or file any debtor proceedings or any person shall take or have against Tenant or any guarantor of this Lease 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 for the appointment of a receiver or trustee of all or a portion of Tenant’s or any such violation guarantor's property, or failure is remediable but is if Tenant or any such guarantor's property, or if Tenant or any such guarantor makes an assignment for the benefit of such a nature that it cannot creditors, or petitions for or enters into an arrangement with its creditors, or suffer this Lease to be remedied within such thirty (30) day periodtaken under any writ of execution, then for in any such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that event Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Defaultin default hereunder, including an Event of Default prior and Landlord, in addition to the Rent Commencement Dateother rights or remedies it may have, then Landlord shall have the rightimmediate right of re-entry and may remove all persons and property from the Demised Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost of, at its sole optionand for the account of Tenant, without being guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby.
b. Should Landlord elect to re-enter the Demised Premises, as herein provided, or should it take possession of the Demised Premises pursuant to legal proceedings or pursuant to any notice provided for by law, it may either terminate this Lease. In additionLease or it may from time to time, with or without terminating this Lease, make such alterations and repairs as may be necessary in order to relet the Demised Premises, and relet the Demised Premises or any part thereof for such term or terms (which may be for a term extending beyond the Term of this Lease) and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable. Upon each such reletting all rentals received by the 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 costs and expenses of such reletting, including brokerage fees and attorney's fees and costs of such repairs (but not alterations); third, to the payment of the 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. If such rentals received from such reletting during any month be less than that to be paid during that month by Tenant hereunder, Tenant upon demand, shall pay any such deficiency to Landlord. No such re-enter, terminate Tenant's right of possession and take entry or taking possession of the Demised Premises by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time after such re-entry and reletting elect to terminate this Lease for such previous breach. Should Landlord at any time terminate this Lease for any such breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the Demised Premises. The , attorney's fees, and costs, the unamortized portion of any leasehold improvements made by Landlord for Tenant and including the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in this Lease for the remainder of the stated term over the then reasonable rental value of the Demised Premises for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant to Landlord.
c. Landlord may, at its option, instead of exercising any other rights or remedies available to it in this Lease or otherwise by law, statute or equity, spend such money as is reasonably necessary to cure any default of Tenant herein and the amount so spent, and costs incurred, including attorney's fees in curing such default, shall be paid by Tenant, as additional rent, upon demand.
d. In the event suit shall be brought for recovery of possession of the Demised Premises, for the recovery of rent or any other amount due under the provisions of this Article shall operate as a notice to quitLease, or because of the breach of any other covenant herein contained on the part of the Tenant to be kept or performed, and a breach shall be established, Tenant shall pay to Landlord all expenses incurred therefor, including attorney's fees and costs, together with interest on all such expenses at the rate of fourteen percent (14%) per annum from the date of such breach of the covenants of this Lease until the date that such breach is cured.
e. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant being evicted or dispossessed for any cause, or in the event of Landlord obtaining possession of the Demised Premises, by reason of any default hereunder, or otherwise. Tenant also waives any demand for possession of the Demised Premises, and any demand for payment of rent and any notice to quit or of Landlord's intention intent to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of VirginiaDemised Premises, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects of intent to terminate this Lease and/or elects to terminate Tenant's right of possessionLease, then everything contained other than the notices provided in this Lease, and any other notice or demand prescribed by any applicable statutes or laws.
f. No remedy herein or elsewhere in this Lease or otherwise by law, statute or equity, conferred upon or reserved to Landlord or Tenant shall be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and exclusive of any other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord mayremedy, but shall not be obligated tocumulative, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others exercised from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to time and as often as the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises occasion may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causearise.
Appears in 1 contract
Default of Tenant. 21.1 Each of In the following shall constitute an Event of Defaultevent that: -----------------
(a) Tenant's failure to make any The SUBLESSEE shall default in the payment of the Base Rent, Additional Rent any installment of rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due dateherein specified; or
(b) Tenant's failure to take possession The SUBLESSEE shall default in the observance or performance of the Premises SUBLESSEE'S covenants, agreements, or obligations hereunder (except as provided in Paragraph 18(a) above) and the SUBLESSEE shall not cure such default within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after written notice thereof from Landlordor if such default cannot be cured within thirty (30) days, then if SUBLESSEE shall not commence to cure the same within thirty (30) days and diligently pursue the curing of the same; or
(c) If SUBLESSEE makes any assignment for the benefit of creditors, commits any act of bankruptcy or files a petition under any bankruptcy or insolvency law; or if such a petition is filed against SUBLESSEE and is not dismissed within ninety (90) days; or if a receiver or similar officer becomes entitled to SUBLESSEE'S leasehold hereunder and it is not returned to SUBLESSEE within ninety (90) days, or if such violation leasehold is taken on execution or failure is remediable but is other process of law in any action against SUBLESSEE; then in any such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of case the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord SUBLESSOR shall have the rightright thereafter, at its sole optionwhile such default continues, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover and take complete possession of the Leased Premises, to declare the term of this SUBLEASE ended, and remove the SUBLESSEE'S effects at SUBLESSEE'S sole cost and expense, without prejudice to any remedies which might be otherwise used for arrears of rent or other default. The SUBLESSEE shall indemnify the SUBLESSOR against all reasonable costs of collection (including attorneys' fees), reasonable costs to prepare the premises to be re-let (but not including the cost of removing the Tenant Improvements), reasonable costs to re-let the premises, loss of rental income that would otherwise have been paid by SUBLESSEE, and reasonable payment of such other damages for breach of this SUBLEASE which the SUBLESSOR may incur by reason of such early termination of the SUBLEASE, but only during the residue of the term. In the event of default, SUBLESSOR shall use its reasonable efforts to re-let the Leased Premises so as to mitigate any damages to the SUBLESSEE hereunder. If SUBLESSOR re-lets the Leased Premises, SUBLESSEE may off-set its payable rent by the amount of rent received by SUBLESSOR. If the SUBLESSEE shall default, after written notice thereof as provided herein, in the observance or performance of any conditions or covenants on its part to be observed or performed under and or by virtue of the laws any of the Commonwealth provisions of Virginiathis SUBLEASE and after the expiration of any period within which the SUBLESSEE is entitled to cure such default as is provided above in this Paragraph l8, the SUBLESSOR, without being under any obligation to do so and without thereby waiving such default, may remedy such default for the account and at the expense of the SUBLESSEE. In the event either party makes any expenditures or incurs any obligations for the payment of money in connection therewith, including, but not limited to, reasonable attorney's fees (except for unsuccessful suits against the other) in instituting, prosecuting or defending any action or proceeding under this SUBLEASE, such sums paid or obligations incurred, with interest at the rate of twelve (12%) percent per annum and costs, shall be paid to the prevailing party by such other proceedings, including rethe non-entry and possession, as may be applicableprevailing party. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything Nothing contained in this Lease SUBLEASE shall limit or prejudice the right of SUBLESSOR to be done claim and performed obtain in proceedings for bankruptcy, insolvency or like proceedings by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under reason of the terms and conditions termination of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminatedSUBLEASE, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder maximum allowed by any statute or rule of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then law in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemptiontime when, re-entry and governing the proceedings in which the damages are to be claimed or restoration proved, whether or not the amount be greater, equal to, or less than the amount of the operation of this Lease under any present loss or future lawdamages referred to above. Notwithstanding the foregoing, including any such right SUBLESSEE shall be and is hereby granted two ten day grace periods per calendar year in which Tenant to cure what would otherwise have if Tenant shall be dispossessed for any causeconstitute monetary defaults under this SUBLEASE.
Appears in 1 contract
Default of Tenant. 21.1 Each a. In the event of the following shall constitute an Event any failure of Default: Tenant to pay any rental due hereunder within ten (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after such payment's due date; (b) Tenant's the same becomes due, or any failure to perform any other terms, conditions or covenants of this Lease to be observed or performed by Tenant for more than ten (10) days after written notice of such failure has been given to Tenant, or if Tenant or an agent of Tenant falsifies any report required to be furnished to Landlord pursuant to the terms of this Lease, or if Tenant or any guarantor of this Lease becomes bankrupt or insolvent, or file any debtor proceedings or any person takes or has against Tenant or any guarantor of this Lease 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 for the appointment of a receiver or trustee of all or a portion of Tenant’s or any such guarantor’s property, or if Tenant or any such guarantor’s property, or if Tenant or any such guarantor makes an assignment for the benefit of creditors, or petitions for or enters into an arrangement with its creditors, or if Tenant abandons the Premises or suffer this Lease to be taken under any writ of execution, then in any such event Tenant will be in default hereunder, and Landlord, in addition to other rights of remedies it may have, will have the immediate right of re-entry and may remove all persons and property from the Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost of, and for the account of Tenant, without being guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby.
b. Should Landlord elect to re-enter the Premises, as herein provided, or should it take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation pursuant to legal proceedings or failure pursuant to perform or observe any other covenant or conditionnotice provided for by law, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to either terminate this Lease. In additionLease or it may from time to time, with or without terminating this Lease, make such alterations and repairs as may be necessary in order to re-let the Premises, and re-let the Premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable. Upon each such subletting all rentals received by the Landlord from such re-letting will be applied first to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such re-letting, including brokerage fees and attorney’s fees and costs of such alterations and repairs; third, to the payment of the rent due and unpaid hereunder, and the residue, if any will be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. If such rentals received from such re-letting during any month be less than that to be paid during that month by Tenant hereunder, Tenant, upon demand, will pay any such deficiency to Landlord. No such re-entry or taking possession of the Premises by Landlord will be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such re-letting without termination, Landlord may at any time after such re-enterentry and re-letting elect to terminate this Lease for such previous breach. Should Landlord at any time terminate this Lease for any such breach, terminate in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the Premises, attorney’s fees, and costs, the unamortized portion of any leasehold improvements made by Landlord for Tenant and including the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in this Lease for the remainder of the stated term over the then reasonable rental value of the Premises for the remainder of the stated term, all of which amounts will be immediately due and payable from Tenant to Landlord.
c. Landlord may, at its option, instead of exercising any other rights or remedies available to it in this Lease or otherwise by law, statute or equity, spend such money as is reasonably necessary to cure any default of Tenant herein and the amount so spent, and costs incurred, including attorney’s fees in curing such default, will be paid by Tenant's right , as additional rent, upon demand.
d. In the event suit is brought for recovery of possession and take possession of the Premises. The , for the recovery of rent or any other amount due under the provisions of this Article shall operate as a notice to quitLease, or because of the breach of any other covenant herein contained on the part of the Tenant to be kept or performed, and a breach is established, Tenant will pay to Landlord all reasonable expenses incurred therefor, including attorney’s fees and costs.
e. Tenant waives any demand for possession of the Premises, and any demand for payment of rent and any notice to quit or of Landlord's intention intent to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of VirginiaPremises, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects of intent to terminate this Lease and/or elects to terminate Tenant's right of possessionLease, then everything contained other than the notices above provided in this Article, and any other notice or demand prescribed by any applicable statutes or laws.
f. No remedy herein or elsewhere in this Lease or otherwise by law, statute or equity, conferred upon or reserved to Landlord or Tenant will be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and exclusive of any other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord mayremedy, but shall not will be obligated tocumulative, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others exercised from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to time and as often as the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises occasion may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causearise.
Appears in 1 contract
Samples: Commercial Lease (Aetrium Inc)
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: (a) Tenant's failure timely to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due datewritten notice thereof from Landlord; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after written notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety sixty (9060) days subject to Force Majeure days) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (ec) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (fd) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Lease Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth District of VirginiaColumbia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this LeaseLease as set forth below. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in a similar rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord additional rent which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. , Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that which would have become due through the date on which the Lease Term would have expired but for Tenant's default, default and (ii) the fair market rental value(as value (as reasonably determined by Landlord) that would be derived from the reletting of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
Appears in 1 contract
Samples: Office Lease (Identix Inc)
Default of Tenant. 21.1 Each The following events shall be a default ("Default") of Tenant under this Lease:
1. Failure of Tenant to pay any Rent when due.
2. Failure of Tenant to perform or comply with any provision of this Lease to be performed or complied with by Tenant (other than provisions for the following shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rent), Additional Rent or any other sum and such failure continues for fifteen (i) within five (515) days after notice from Landlord to Tenant specifying the failure (provided, however, if such failure cannot be cured within such fifteen (15) day period, Tenant shall not be in default if Tenant, within such fifteen (15) day period, commences and diligently proceeds with all actions necessary to cure such failure); provided, however, that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three two (32) such Landlord Notices during notices within the immediately preceding 365-day period, no notice of any such Lease Year failure shall be required.
3. If Tenant, any guarantor of Tenant or, if Tenant is a partnership or consists of two or more persons, any such partner or person, shall file a voluntary petition in bankruptcy or insolvency, or shall be adjudicated a bankrupt or insolvent, or shall file a petition or answer seeking any reorganization, arrangement composition, readjustment, liquidation, dissolution, or similar relief under the present or any future federal bankruptcy acts or any other present or future applicable federal, state, or other statue or law, or shall make an assignment for the benefit of creditors, or shall seek or consent to or acquiesce in the appointment of a trustee, receiver or liquidator of Tenant or of such guarantor, partner, or person.
4. If any proceeding seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future bankruptcy act or any other present or future applicable federal, state or other statute or law, is filed against Tenant, any guarantor of Tenant, or, if Tenant is a partnership, against any such partner of Tenant, whether by filing of a petition or otherwise, and such preceding shall not have been dismissed within five ninety (590) days after the filing thereof; or if a trustee, receiver or liquidator is appointed for Tenant or for any guarantor or, if Tenant is a partnership, any such partner of Tenant, without the consent or acquiescence of Tenant, and such appointment shall not have been vacated or otherwise discharged within ninety (90) days after such payment's due dateappointment; (b) or, if any execution or attachment shall be issued against the property of Tenant or of any guarantor or partner of Tenant's failure , pursuant to which execution or attachment the Premises shall be taken or occupied or attempted to be taken or occupied; or
5. If Tenant fails to take possession of the Premises within sixty (60) days as of the Lease Commencement Date; (c) Tenant's violation Date or failure to perform vacates or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet abandons the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, ceases to carry on its ordinary activities in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the normal expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
Appears in 1 contract
Samples: Lease (MPC Corp)
Default of Tenant. 21.1 Each The following events shall be a default by Tenant (a “Default”) under this Lease:
(1) Failure of Tenant to pay Rent as and when due, if the following shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within continues for five (5) days after notice from Landlord specifying the failure.
(2) Failure of Tenant to comply with or perform any covenant or obligation of Tenant under this Lease, other than those concerning the payment of Rent, if the failure continues for twenty (20) days after notice from Landlord to Tenant specifying the failure; provided, however, that if the failure on the part of Tenant is not capable of being cured within such payment's due date; 20-day period but Tenant expeditiously commences to cure same and diligently proceeds with such cure, Tenant’s time to cure such failure shall be extended for the time necessary to cure same, but in no event longer than sixty (b60) days, inclusive of the original 20-day period.
(3) [Intentionally omitted.]
(4) If Tenant's failure , any guarantor of Tenant’s performance hereunder (a “Guarantor) or, if Tenant is a partnership, any partner of Tenant (“Partner”), shall file a voluntary petition in bankruptcy or insolvency, shall be adjudicated bankrupt or insolvent or shall file a petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future federal, state or other law, or shall make an assignment for the benefit of creditors, or shall seek or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or of any Guarantor or Partner or of all or any part of the property of Tenant or of such Guarantor or Partner.
(5) If, within thirty (30) days after the commencement of any proceeding against Tenant or a Guarantor or Partner, whether by the filing of a petition or otherwise, seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future applicable federal, state or other law, such proceeding shall not have been dismissed or if, within thirty (30) days after the appointment of any trustee, receiver or liquidator of Tenant or any Guarantor or Partner, or of all or any part of the property of Tenant or of any Guarantor or Partner, without the acquiescence of such individual or entity, such appointment shall not have been vacated or otherwise discharged, or if any execution or attachment shall have been issued against the property of Tenant or of any Guarantor or Partner, pursuant to which the Premises shall be taken or occupied or attempted to be taken or occupied.
(6) If Tenant fails to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlordfollowing the Lease Commencement Date or vacates, abandons or ceases to carry on its ordinary activities in the Premises prior to the Lease Expiration Date, with or without an intention of paying Rent; provided, however, that if such violation or failure is remediable but is of such a nature that it cannot be remedied within such (i) Tenant gives Landlord at least thirty (30) day period, then for such longer period (not days prior written notice that it intends to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of vacate the Premises; , (eii) an Event Tenant pays the full amount of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the all Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate when due under this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter Lease while the Premises being hereby expressly waived. If necessaryare vacant, Landlord may proceed to recover possession of (iii) the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet fact that the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall Building is vacant does not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet adversely affect the Premises or collect Building or other tenants therein and does not result in any rent due upon such reletting. Whether liability to, or not this Lease is terminatedexpenditure of funds by, Landlord, and (iv) Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing leaves the Premises in rentable a condition satisfactory to Landlord and tenant finish necessitated continues to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting maintain the Premises in a condition satisfactory to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during throughout the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s)then, and in such suits event only, Tenant shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of Default under this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeSection 19.A.(6).
Appears in 1 contract
Default of Tenant. 21.1 Each a. In the event of the following shall constitute an Event any failure of Default: (a) Tenant's failure Tenant to make pay any payment of the Base Rent, Additional Rent or any other sum amounts due hereunder within ten (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation same shall be due, or any failure to perform or observe any other covenant of the terms, conditions or conditioncovenants of this Lease to be observed or performed by Tenant with all reasonable diligence, which violation but in any event for more than thirty (30) days after written notice of such failure shall have been given to Tenant provided that, if such default cannot with due diligence by wholly cured within such thirty (30) days, Tenant shall have such longer period, up to ninety (90) days, as may be reasonably necessary to cure the default, so long as Tenant proceeds promptly to commence the cure of same within such thirty (30) day period and diligently prosecutes the cure to completion, or failure continues if Tenant or an agent of Tenant shall intentionally falsify any report required to be furnished to Landlord pursuant to the terms of this Lease, or if Tenant or any guarantor of this Lease shall become bankrupt or insolvent, or file any debtor proceedings, or any person shall file against Tenant or any guarantor of this Lease 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 for the appointment of a receiver or trustee of all or a portion of Tenant's or any such guarantor's property, or if Tenant or any such guarantor makes an assignment for the benefit of creditors, or petitions for or enters into any similar arrangement, and such bankruptcy, insolvency, receivership or other proceeding is not dismissed in ninety (90) days or if any guarantor of this Lease shall be in default in the performance of any covenant, duty or obligation under any guaranty or other agreement entered into with or in favor of Landlord and such default shall remain uncured for a period of thirty (30) days or more after notice thereof from Landlordof such default, or if such violation Tenant shall abandon the Demised Premises (provided Tenant may vacate the Demised Premises provided it continues to perform its obligations hereunder) or failure is remediable but is suffer this Lease to be taken under any writ of such a nature that it cannot be remedied within such thirty execution (30) day periodany one or more of the foregoing shall constitute an "Event of Default"), then in any such event Tenant shall be in default hereunder, and Landlord, in addition to any other rights and remedies it may have, shall have the immediate right of re-entry and may remove all persons and property from the Demised Premises and such property may be removed and stored in a public warehouse or elsewhere at the sole cost of, and for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation the account of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, all in accordance with applicable legal process and without being guilty of trespass, or becoming liable for any general partner of Tenant (a "General Partner") loss or any Guarantor; or (f) Tenant's dissolution or liquidationdamage which may be occasioned thereby.
21.2 If there shall be b. Upon the occurrence of an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, right (in addition to any other rights or remedies) to either terminate this Lease. In additionLease or, with or from time to time, without terminating this Lease, Landlord may re-enter, to terminate Tenant's right of possession of the Demised Premises. If Landlord terminates Tenant's right of possession only, Landlord shall use commercially reasonable efforts to make such alterations and take repairs as may be necessary in order to relet the Demised Premises, and relet the Demised Premises or any part thereof upon such term or terms (which may be for a term extending beyond the term of this lease) and at such rental or rentals and upon such other terms and conditions as are commercially reasonable. Landlord's obligations under the preceeding sentence are subject to the following conditions: i) Landlord has absolutely no obligation to prefer the Demised Premises over other then available space within the Building, ii) Landlord is under absolutely no obligation to accept any substitute lease for less then the current fair market value of the Demised Premises, iii) Landlord has absolutely no obligation to expend additional funds for tenant improvements for the substitute tenant and (iv) Landlord is under absolutely no obligation to accept a substitute tenant who does not meet Landlord's reasonable creditworthiness standards. Upon any such reletting all rentals received by the 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 reasonable costs and expenses of such reletting, including brokerage fees and attorney's fees and costs of such alterations and repairs; third, to the payment of the rent due and unpaid payment of future rent as the same may become due and payable hereunder. If such rentals received from any such reletting during any month are less than that to be paid during that month by Tenant hereunder, Tenant, upon demand, shall pay any such deficiency to Landlord. No such re-entry or taking possession of the Demised Premises by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of such intention is given to Tenant. Notwithstanding any such reletting without termination, Landlord may at any time after such re-entry and reletting elect to terminate this Lease, and in addition to any other remedies it may have, it may recover from any Tenant all damages it may incur by reason of such breach, including the cost of recovering the Demised Premises. The , reasonable attorney's fees, and including the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in this Lease for the remainder of the stated term over the then reasonable rental value of the Demised Premises for the remainder of the stated term, which shall be discounted to present value at a rate of ten percent (10%) all of which amounts shall be immediately due and payable from Tenant to Landlord.
c. Landlord may, at its option, in addition to any other rights or remedies available to it in this Lease or otherwise by law, statute or equity, spend such money as is necessary to cure any Event of Default of Tenant herein and the amount so spent, and costs incurred, including reasonable attorney's fees in curing such default, shall be paid by Tenant, as additional rent, upon demand.
d. In the event suit shall be brought for recovery of possession of the Demised Premises, for the recovery of rent or any other amount due under the provisions of this Article Lease, or in connection with any Event of Default, and an Event of Default shall operate as a be established, Tenant shall pay to Landlord all reasonable expenses incurred in connection therewith, including attorney's fees, together with interest on all such expenses at the Default Rate from the date of such breach.
e. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant being evicted or dispossessed for any cause, or in the event of Landlord obtaining possession of the Demised Premises, by reason of any Event of Default hereunder, or otherwise. Tenant also waives any demand for possession of the Demised Premises, and any demand for payment of rent and any notice to quit, any other notice to quit or of Landlord's intention intent to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of VirginiaDemised Premises, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects of intent to terminate this Lease and/or elects to terminate Tenant's right of possessionLease, then everything contained other than the notices above provided in this Article, or as prescribed by any applicable statutes or laws.
f. No remedy herein or elsewhere in this Lease or otherwise by law, statute or equity, conferred upon or reserved to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and be exclusive of any other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord mayremedy, but shall not be obligated tocumulative, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others exercised from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to time and as often as the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises occasion may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causearise.
Appears in 1 contract
Samples: Lease Agreement (Mgi Pharma Inc)
Default of Tenant. 21.1 Each of the following shall constitute an An Event of Default: Default shall exist under this Lease, if:
(a1) Tenant's failure to make Tenant does not pay Rent as required under this Lease, including any payment installment of the Base Monthly Rent, Additional Rent costs of Landlord's Work, if any, or any other sum (i) sums, charges, expenses and costs of any kind or nature identified in this Lease as additional rent, although no legal or formal demand has been made, provided that there shall exist no Event of Default unless Tenant shall have been given written notice of such nonpayment and shall not have made the payment within five (5) days following the giving of such notice, provided, however, Landlord shall not be required to provide more than one (1) written notice from Landlord that such payment has of default to Tenant in any one twelve (12) month period during the Lease Term;
(2) Tenant materially violates or does not been made ("Landlord Notice") or (ii) if Tenant has received perform any of the provisions of this Lease required of Tenant, provided that, on up to three (3) such Landlord Notices occasions during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Term, there shall exist no Event of Default unless Tenant's violation or failure to perform or observe nonperformance of any other covenant or condition, which violation or failure of those provisions continues for a period of thirty (30) days after written notice thereof from Landlordhas been delivered by Landlord to Tenant or, or if such in cases where the violation or failure is remediable but is of such a nature that it nonperformance cannot be remedied corrected within such thirty (30) day perioddays, then for such longer period Tenant does not begin to correct the violation or nonperformance within thirty (not to exceed ninety (9030) days subject to Force Majeure ) as may reasonably be required, provided that after receiving Landlord's written notice and/or Tenant promptly commences and thereafter does not diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation pursue the correction of the Premises; violation or nonperformance to completion within sixty (e60) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner days after receiving Landlord's written notice;
(3) Tenant abandons the Premises without paying the Rent when due;
(4) this Lease or the estate of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there hereunder shall be an Event transferred to or shall pass to or devolve upon any other person or party except in a manner permitted herein;
(5) Tenant does not obtain the release of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate any mechanic's lien as required by this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate ;
(6) this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof shall be taken upon execution or by other process of law directed against Tenant, or shall be taken upon or subject to any attachment at the instance of any creditor or claimant against Tenant, and the attachment shall not be discharged or disposed of within fifteen (15) days after the levy thereof;
(7) Tenant, alone its employees or together invitees do not comply with other premisesthe rules and regulations pertaining to parking space usage described in Section 1.3, for provided that there shall exist no Event of Default unless Tenant shall have been given written notice of such rent failure to comply and upon Tenant shall not have cured the noncompliance within ten (10) days following the giving of such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlordnotice, in its sole discretionprovided, may determinehowever, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure required to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other provide more than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above written notice of default for failure to comply with the discount rate then rules and regulations pertaining to parking space usage to Tenant during the Lease Term; or
(8) an Event of Bankruptcy occurs, as specified in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeSection 3 1.14.
Appears in 1 contract
Samples: Office Lease (Xedar Corp)
Default of Tenant. 21.1 Each This Agreement may be terminated at any time by HRM on criteria for default of the following shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then . The Landlord shall have the rightright at any time to remedy or attempt to remedy any default of the Tenant hereunder, at its sole option, and in so doing to make any payments due or alleged to be due by the Tenant to a third party and may enter upon the leased premises to do any work or repairs for which the Tenant is responsible under this Facility Lease Agreement and in such event all expenses of the Landlord in remedying or attempting to remedy such default shall be recoverable by the Landlord from the Tenant. Payment in full or through payment plan will be arranged with HRM. Interest will be factored into the outstanding debt based on determination of HRM. The Landlord may decide to terminate this Lease. In addition, with or without terminating this Lease, Landlord may and re-enterenter upon the leased premises for reasons which include but are not limited to the following: •the Tenant is incapable of day to day program or facility operation •facility needs to be protected against vandalism, terminate theft, pipes freezing, activity contrary to public safety •the Tenant became in danger of bankruptcy or foreclosure actions •facility being used contrary to the terms of the Agreement to the deterrent of HRM •facility use and programming creates hardship to the immediate residents •the Tenant cannot successfully obtain legal Registered Non Profit Society Status (may also include Federal Charitable Status) •the Tenant does not maintain current General Liability Insurance •any unauthorized assignment of subletting of this lease by the Tenant •unauthorized facility change that effects the Landlords building insurance •the Tenant shall not observe, perform and keep all and every one of the covenants, agreements, provisions, stipulations and conditions herein contained to be observed, performed and kept by the Tenant •if the leased premises shall become vacant In the event of a claim for debt, damages or indemnity by the Landlord against the Tenant's , the Landlord shall have the right of possession to seize and take possession of any equipment, furniture or other property of any nature whatsoever situated on the Premisesleased premises and to sell the same at public or private sale without notice and to apply the proceeds thereof upon the account of Tenant. The provisions of this Article Tenant shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease continue to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose deficiency if any and the Tenant hereby waives and renounces the benefit of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future lawAct in force in Canada or in the Province of Nova Scotia which takes away or limits the Landlord's rights, including any and that the Landlord may seize and sell the Tenant's goods and chattels as fully as the Landlord might have done if such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeAct had not been enacted or passed.
Appears in 1 contract
Samples: Facility Lease Agreement
Default of Tenant. 21.1 Each If Tenant shall fail to pay any installment of rent on the following day when the same shall constitute an Event become due and payable hereunder and shall continue in default for a period of Default: ten (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after such payment's due date; (b) Tenant's failure Landlord gives written notice thereof, or if Tenant shall fail to take possession keep and perform any of the Premises within sixty (60) days other terms, covenants, and conditions of the this Lease Commencement Date; (c) Tenant's violation or failure on its part to perform or observe any other covenant or condition, which violation or failure continues be performed and shall continue in default for a period of thirty (30) days after Landlord gives notice thereof from Landlord, or if such violation or failure is remediable but is to Tenant of such a nature that it cannot be remedied within such thirty (30) day periodsaid default, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) in said event,- and as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy often as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there said event shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminatedoccur, Landlord may, but at Landlord's option, cure said default at Tenant's sole cost and expense, in which event any cost incurred by Landlord in curing said default shall not be obligated tobecome immediately due and payable from Tenant, relet together with interest thereon at the Premises rate of 12% per annum, or Landlord may terminate this Lease and enter into the Leased Premises, or any part thereof, alone either with or together with without process of law, and expel Tenant, or any person occupying the Leased Premises, and use such force as may be necessary so to do, and repossess and enjoy the Leased Premises as in Landlord's former estate, but Tenant shall remain fully liable hereunder for all rents and other premises, for such rent sums to be paid and upon such terms and conditions (which may include concessions or free rent and alterations all covenants to be performed by Tenant during the remaining balance of the Premises) as Landlord, term of this Lease but subject to reduction in its sole discretion, may determine, but accordance with the next sentence. Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure use all reasonable diligence to relet the Premises or collect Leased Premises, and in said event, Landlord, shall apply the rent received from any rent new tenant thereof on any balance due upon such reletting. Whether or not under this Lease is terminatedLease, and Tenant nevertheless shall remain liable be responsible for any Base Rent, Additional Rent or damages which no more than the remaining balance that may then be due or sustained hereunder. Notwithstanding anything contained in this paragraph to the contrary, if any default shall occur, other than in the payment of money, which cannot with due diligence be cured within a period of thirty (30) days, and Tenant, prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of thirty (30) days from and after the Lease Termgiving of notices as aforesaid, in which event shall commence to eliminate the cause of action said default, shall be deemed not proceed diligently and with reasonable dispatch to have accrued until the expiration of the Lease Term: or
(b) an amount equal take all steps and do all work required to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's cure said default, and (ii) the fair market rental value(as reasonably determined by Landlord) shall thereafter cure said default, then Landlord shall grant Tenant a reasonable extension of the Premises for the same period, time within which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causecure said default.
Appears in 1 contract
Default of Tenant. 21.1 Each A. If any one or more of the following shall constitute an Event of Defaultoccurs: (a1) Tenant's failure to make any a rent payment of the Base Rent, Additional Rent or any other sum payment due from Tenant to Landlord shall be and remain unpaid in whole or in part for more than ten (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after Tenant’s receipt of written notice that the same is past due, provided however that Landlord shall only be obligated to provide two (2) such payment's notices in any 12-month period, and thereafter it shall be a default if a rent payment or any other payment due datefrom Tenant to Landlord shall be and remain unpaid in whole or in part for more than ten (10) days after the same is due; (b2) Tenant's failure to take possession Tenant shall violate or default on any of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's other covenants, agreements, stipulations or conditions herein, and such violation or failure to perform or observe any other covenant or condition, which violation or failure continues default shall continue for a period of thirty (30) days after written notice thereof from Landlord, or if Landlord of such violation or failure is remediable but is of such a nature that it cannot default (which 30-day period shall be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be requiredreasonable extension, up to a total of 60 days, provided that Tenant promptly commences has commenced cure and is diligently pursues such remedy pursuing the same to completion), except that if a specific time period following notice by Landlord for Tenant to cure such violation or default is set forth elsewhere in this Lease Agreement, no additional period of notice and cure shall be afforded under this Article; (d3) Tenant's abandonment Tenant shall commence or vacation have commenced against Tenant proceedings under a bankruptcy, receivership, insolvency or similar type of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantoraction; or (f4) Tenant's dissolution Tenant shall purport to assign this Lease Agreement or liquidation.
21.2 If there sublet, license, mortgage or transfer this Lease Agreement or the Premises hereunder in violation of the provisions of Article 16 of this Lease Agreement; then it shall be an Event of Defaultoptional for Landlord, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole optionwithout further notice or demand, to cure such default or to declare this Lease Agreement forfeited and the said Term ended, or to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate only Tenant's ’s right of possession and take to possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention and to re-enter the Premises being hereby expressly waived. If necessaryPremises, Landlord may proceed subject to recover possession of the Premises under applicable Laws, and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for damages by reason of such forfeiture or re-entry; but notwithstanding re-entry by Landlord or termination only of Tenant’s right to possession of the Premises, the liability of Tenant for the rent and all other sums provided herein shall not be relinquished or extinguished for the balance of the Term of this Lease Agreement and Landlord shall be entitled to periodically xxx Tenant for all sums due under this Lease Agreement or which become due prior to judgment, but such suit shall not bar subsequent suits for any further sums coming due thereafter. Tenant shall be responsible for, nor shall Tenant's obligations in addition to the rentals and other sums agreed to be diminished paid hereunder (as more particularly set forth below), the reasonable cost of any necessary maintenance, repair, restoration, reletting (including related cost of removal or modification of tenant improvements) or cure as well as reasonable attorneys’ fees incurred or awarded in any suit or action instituted by reason of, Landlord's failure Landlord to relet enforce the Premises or collect any rent due upon such reletting. Whether or not provisions of this Lease is terminatedAgreement, Tenant nevertheless shall remain liable for any Base Rentregain possession of the Premises, Additional Rent or damages which may be the collection of the rentals due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to timehereunder. Tenant shall also be liable to Landlord for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder payment of the Lease Term, less a late charge in the amount of rentalfive percent (5%) of the rental installment or other sum due Landlord hereunder if said payment has not been received within ten (10) days from the date said payment becomes due and payable. Tenant agrees to pay interest at the rate of ten percent (10%) per annum or the maximum permissible rate under the applicable usury statutes, if anywhichever is less, on all rentals and other sums due Landlord hereunder not paid within ten (10) days from the date same become due and payable. All of Landlord’s rights and remedies under this Lease Agreement shall be cumulative with and in addition to any and all rights and remedies which Landlord receives during such period from others may have at law or in equity. Any specific right or remedy provided for in any provision of this Lease Agreement shall not preclude the concurrent or consecutive exercise of a right or remedy provided for in any other provision hereof. Landlord shall exercise at least the level of effort required by applicable Laws to whom mitigate its damages.
B. Notwithstanding anything in Article 20 A above or elsewhere in this Lease Agreement to the contrary, in the event Tenant shall vacate the Premises may be rented for a period of ninety (90) consecutive days (other than any Additional Rent payable due to casualty loss or for temporary purposes such as remodeling or renovation), such vacation by Tenant alone shall not be deemed a result of any failure default by Tenant under this Lease Agreement, but in such case Landlord shall have the option, but not the obligation, to terminate this Lease Agreement by giving written notice of such other person termination to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
Appears in 1 contract
Samples: Lease Agreement (SomaLogic, Inc.)
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: (a) Tenant's failure to make If any payment of the Base Rent, Rent or Additional Rent reserved, or any other sum part thereof, shall be and remain unpaid for ten (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after the date such payment's due date; (b) Tenant's failure to take possession payment is due, or if Tenant violates or defaults in any of the Premises within sixty (60) days other provisions of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or conditionthis Lease, which violation or failure default continues for a period of thirty (30) days after written notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect has been given by Landlord to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If with or without legal process, by force if necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to either terminate this Lease and/or elects to terminate or Tenant's right of possession, then everything contained in . No such re-entry shall terminate this Lease to be done and performed by unless Landlord shall ceasegives Tenant a written notice of termination. Notwithstanding any re-entry, without prejudice, however, to Landlord's right to recover from the liability of Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through shall not be extinguished for the date on which balance of the Lease Term would have expired but for Tenant's defaultterm hereof, and (ii) Tenant shall continue to make payments of Base Rent and Additional Rent and all other sums due hereunder as and when due, except that if Landlord relets the fair market rental value(as reasonably determined by Landlord) of the Premises for the same periodPremises, which Present Value Damages it shall be payable under no obligation to Landlord in a lump sum on demand. For purpose of this Sectiondo, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed entitled to receive a credit against the payments otherwise due hereunder in the amount of the net proceeds of such reletting. The net proceeds of any reletting shall be determined by deducting from the gross rentals received the costs of any such reletting, including, but not limited to, brokerage fees, alterations , rent concessions, and legal fees. The foregoing remedies shall not be exclusive and, in addition to the rights reserved pursuant to paragraph 14 above, Landlord reserves the right to exercise any other remedy provided for any causeat law or in equity. In addition, Tenant shall be liable for Landlord's costs and expenses, including legal fees, incurred in enforcing its rights under this Lease.
Appears in 1 contract
Default of Tenant. 21.1 Each of the following shall constitute an Event of DefaultA. It is a Default for Tenant to: (a) Tenant's failure to make not pay any payment of the Base Rent, or Additional Rent or any other sum when due under the Lease (i) provided, however, that Tenant shall not be deemed in default until it fails to cure any such delinquency within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) 3 days after such paymentreceiving Landlord's due datewritten notice of the delinquency); (b) not cure any Lease violation not described by the other clauses of this paragraph within 10 days after Landlord gives notice of the violation (provided Landlord will extend this period so long as cure is possible and Tenant has begun and is diligently pursuing a cure); (c) knowingly violate the Lease on 3 separate occasions during any 12 month period; (d) knowingly misrepresent any material fact in any writing provided to Landlord or pursuant to this Lease; and (f) become insolvent or the subject of a bankruptcy petition or an assignment for the benefit of creditors.
B. A Default entitles Landlord to exercise all remedies available under law, including the right to re-enter, at its option, the Premises and remove all persons and property from the Premises. Without limitation, Landlord may, at its option, instead of exercising any other rights or remedies available to it under this Lease or otherwise, enter the Premises (if necessary) and perform such acts or spend such sums of money as may be reasonably necessary to cure any Default by Tenant, and the cost incurred, including reasonable attorney's failure fees, in curing the Default shall be paid by Tenant, as additional rent, within 10 days after receipt of Landlord's invoice.
C. Should Landlord elect to re-enter the Premises, as herein provided, or should it take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation pursuant to legal proceedings or failure pursuant to perform or observe any other covenant or conditionnotice provided for by law, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to either terminate this Lease. In additionLease or it may from time to time, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession make such alterations and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, repairs as may be applicable. If Landlord elects necessary in order to terminate this Lease and/or elects to terminate Tenant's right of possessionrelet the Premises, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, thereof for such rent term or terms (which may be for a term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, Landlord in its sole discretiondiscretion may deem advisable. Upon each such reletting all rentals received by the 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 costs and expenses of such reletting, including brokerage fees and attorney's fees and of costs of such alterations and repairs; third, to all rent accrued and due hereunder from Tenant; and fourth, to a fund to be held by Landlord and applied in payment of future rent as the same may determinebecome due and payable from Tenant hereunder. Any surplus remaining upon termination of this Lease shall belong to Landlord. If such rentals received from such reletting during any month be less than that to be paid during that month by Tenant hereunder, but Tenant, upon demand, shall pay any such deficiency to Landlord. No such re-entry or taking possession of the Premises by Landlord, or reletting, or any other act or omission, shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Tenant. Notwithstanding any such reletting without termination, Landlord shall not be liable for, nor shall may at any time after such re-entry elect to terminate this Lease for such previous breach.
D. In addition to its other remedies available because of Tenant's obligations be diminished Default, Landlord may elect, by reason ofgiving written notice, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any accelerate unaccrued Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due hold Tenant immediately liable for the present value (using a 6% per annum time-value of money component) of the sum of all Base and Additional Rent payable during the remainder of the Term. For purposes of this provision, accelerated Additional Rent shall be deemed fixed for each month of the remainder of the Term in the same estimated amount as had been due monthly at the time Landlord gives notice of the acceleration. If Landlord exercises its rights under this paragraph D., Landlord will not thereafter terminate the Lease but rather will credit against Tenant's obligation under this paragraph any rentals, net of the expenses of reletting, it collects from re-letting the Premises with respect to the remainder of the Term; provided, less however, that Landlord may terminate the amount Lease after accelerating the rent if it also waives any right to claim rent on an accelerated basis and limits its remedies to those available under the other paragraphs of rentalthis Article. Notwithstanding anything in this Article to the contrary, Landlord waives any legal right to dispossess Tenant by reason of a Default under clauses (a) or (b) of paragraph A., above, if Tenant cures the Default prior to the issuance of an order for a writ of restitution or similar order by a court of competent jurisdiction.
E. Should Landlord at any time terminate this Lease for any such Default, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the worth at the time of such termination of the excess, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the amount of rent and changes equivalent to rent (discounted to present value using a 6% value of money discount factor) reserved in this Lease Term, in which event for the cause of action shall be deemed not to have accrued until the expiration remainder of the Lease Term: or
(b) an amount equal to stated term over the Present Value Damages. "Present Value Damages" shall be an amount equal to the present then reasonable rental value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same periodremainder of the stated term, all of which Present Value Damages amounts shall be immediately due and payable from Tenant to Landlord.
F. All expenses, including, without limitation, attorneys' fees, broker's fees, and retro-fit expense, incurred by Landlord by reason of Tenant's breach, whether or not the breach results in a lump sum on demand. For purpose the commencement of this Section, present value legal proceedings or involves termination
G. No remedy of Landlord's shall be computed deemed exclusive except insofar as it may be such by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law. To the extent the law allows, including any such right which Tenant would otherwise have if Tenant Landlord's remedies shall be dispossessed for any causecumulative and exercisable from time to time and as often as Landlord desires.
Appears in 1 contract
Samples: Lease (Fsi International Inc)
Default of Tenant. 21.1 Each of A. In the following shall constitute an Event of Default: event Tenant fails to cure any default after ten (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (6010) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof written notifica- tion from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, at any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default time prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease and to retain all monies theretofore paid by Tenant as liquidated damages. Landlord shall, in lieu thereof, have the option to continue specifically to enforce the terms of this Lease. After the Rent Commencement Date, the occurrence of any one or more of the following events shall constitute a material default by Tenant under this Lease:
1. The failure by Tenant to make any payment of rent or any other sum re- quired to be made by Tenant under this Lease within ten (10) days after Tenant is in receipt of written notification from Landlord of failure to make payment of rent or other sums.
2. Tenant Transfers or mortgages or agrees to Transfer or mortgage this Lease or possession of all or any portion of the Leased Premises without Land- lord’s prior written consent.
3. The failure to comply with any of the other obligations of Tenant as pro- vided in this Lease within a reasonable time following its due date, but not later than thirty (30) days after written notice by Landlord to Tenant speci- fying Tenant’s failure to perform such obligation; provided, however, that if the nature of Tenant’s obligation is such that more than thirty (30) days are required for performance (and subject to further extension pursuant to Paragraph 31.0 hereof), then Tenant shall not be in default if Tenant com- mences performance within such thirty (30) day period and thereafter dili- gently prosecutes its efforts to satisfy such obligation..
B. In additionthe event Tenant or any guarantor of this Lease shall become bankrupt or insol- vent, file any debtor proceedings, or take or have taken against Tenant or any guar- antor of this Lease 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 for the appointment of a receiver or trustee of all or a portion of Tenant's or any such guarantor's property; or if Tenant or any such guarantor makes an assignment for the benefit of creditors or petitions for or enters into an arrangement; or if Tenant shall abandon the Leased Premises, or suffer this Lease to be taken under any writ of execution, then Landlord, in addition to all other rights or remedies it may have, shall have the immediate right to re-enter and may remove all persons and property from the Leased Premises and place and store such property in a warehouse or else- where at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby.
C. On the occurrence of any default of this Lease by Tenant, Landlord may at any time thereafter, with or without terminating this Lease, notice or demand and without limiting Landlord in the exercise of a right or remedy which Landlord may re-enter, terminate Tenant's right have by reason of possession and take possession of such default do the Premisesfollowing:
1. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, perform any one or more of the obligations of Tenant in default (including, but not limited to, payment of any sum, obtaining and maintaining any insurance policies, and maintaining and repairing the Leased Premises and Landlord may enter upon the Leased Premises for such purpose and take all such action thereon as may be nec- xxxxxx therefor. Notwithstanding anything contained in this Lease, in the event of an emergency, Landlord shall have the right to immediately per- form the obligations of Tenant under this Lease without notice or demand and without liability to Tenant, subject to reimbursement of all liabilities, costs and expenses incurred by Landlord thereby as provided in this Section entitled “Default of Tenant.” In the event Landlord performs such obliga- tions of Tenant as provided herein, then Tenant shall promptly, but in no event later than five (5) business days following written demand therefor from Landlord, pay to Landlord all liabilities, costs and expenses (includ- ing, without limitation, reasonable attorneys’ fees) incurred by Landlord arising out of, in connection with or resulting from such performance by Landlord, together with interest thereon at the highest lawful rate from the respective dates of Landlord’s making each such payment or incurring each such liability, cost and expense (subject to the Section entitled “Rental” hereof) until payment thereof, and same shall constitute additional rent hereunder.
2. Landlord may elect to continue the term of this Lease in full force and effect and not terminate Tenant's right to possession of the Leased Premises, in which event Landlord shall have the right to enforce any rights and remedies granted by this Lease or by law or equity against Tenant, including, without limitation, the right to collect when due rent and/or other sums payable here- under. Landlord shall not be deemed to have elected to terminate this Lease unless Landlord gives Tenant written notice of such election to terminate. Landlord's acts of maintenance or preservation of the Building or efforts to relet the Leased Premises shall not terminate this Lease; or
3. Landlord may elect by written notice to Tenant to terminate this Lease at any time after the occurrence of any default of this Lease by Xxxxxx. If Landlord elects to terminate this Lease, Landlord may, at its option, re-enter the Leased Premises. Should Landlord elect to re-enter, as herein provided, or should Landlord take possession pursuant to legal proceedings, or pursu- ant to any notice provided for by law, Landlord may either terminate this Lease or it may, from time to time, without terminating this Lease make such alterations and repairs as may be necessary to relet the Leased Prem- ises and may thereafter relet the Leased Premises and any part thereof, alone or together with other premises, thereof for such rent term or terms (which may be for a term extending beyond the Lease Term) and at such rental or rentals and upon such other terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determinedeem advisable. Upon such reletting, but all rentals received by Landlord from such reletting shall not be liable forapplied: first, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any payment of indebtedness other than rent due upon hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting. Whether or not this Lease is terminatedre- letting, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, including brokerage fees and expenses (including without limitation reasonable attorneys' feesattorney's fees and of costs for repairs in the Leased Premises other than repairs for normal wear, brokerage feestear, expenses incurred in placing the Premises in rentable condition acts of God, or for damage covered by fire and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal casualty insurance; third, to the Base Rent, Additional Rent payment of rent due and other amounts due Landlord which would have become due during unpaid hereunder; and the remainder of the Lease Term, less the amount of rentalresidue, if any, which shall be held by Landlord receives and applied in payment of future rent as the same may become due and payable hereunder. If such rentals received from such re- letting during any month are less than the rental required to be paid during the month by Tenant hereunder, Tenant shall pay any such period from others deficiency that shall be calculated and paid monthly. No such re-entry or taking possession of the Leased Premises by Landlord shall be construed as an election on its part to whom the Premises may be rented (other than any Additional Rent payable as terminate this Lease unless a result of any failure written notice of such other person intention be given to perform Tenant or unless the termination thereof be decreed by a court of compe- tent jurisdiction. Notwithstanding any of its obligations)such reletting without termination, which damages shall be computed and payable in monthly installmentsLandlord may at any time thereafter elect to terminate this Lease for such previous breach. Should Landlord at any time terminate this Lease for any breach, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought addition to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or other remedies Landlord may defer any have, Landlord may recover from Tenant all damages Landlord may incur by reason of such suit until after breach, including the expiration costs of recovering the Leased Premises and reasona- ble attorney's fees, all of which amounts shall immediately be due and pay- able from Tenant to Landlord.
4. On termination of this Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date by reason of Tenant's default) , Landlord may recover from Tenant all damages incurred by Landlord by reason of Ten- ant's default, including, but not limited to:
a. The cost of recovering possession of the difference between Leased Premises;
b. Reasonable expenses of reletting (including, but not limited to, ad- vertising costs, necessary renovation and alteration of the Leased Premises and the cost of any concessions which Landlord gives to relet the Leased Premises, reasonable attorney's fees, and any real estate commissions paid or payable by Landlord applicable to the unexpired term of this Lease) notwithstanding the foregoing, the amount of such expenses shall not exceed the remaining amount due under the Lease, including but not necessarily limited to, Base Rent and Tenant’s proportionate share of Building Operating Expenses;
c. The worth at the time of award by a court of competent jurisdiction of the amount:
(i) of any unpaid rent which had been earned at the Base Rent and Additional Rent that time of ter- mination; plus
(ii) the amount by which the unpaid rent which would have become due through been earned after termination until the date on time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus
(iii) the amount by which the unpaid rent for the balance of Lease Term term after the time of award exceeds the amount of the rental loss that Tenant proves could be reasonably avoided; plus
(iv) any other amount necessary to compensate Landlord for all detriment proximately caused by Xxxxxx's failure to perform its obligations under this Lease or which in the ordinary course of things would have expired but for be likely to result therefrom. The worth “at the time of termination" as used in subparagraph
(i) above and the worth “at the time of award as used in sub- paragraph (ii) above is to be computed by allowing interest at the rate of eighteen percent (18%) per annum. The worth “at the time of award" as used in subparagraph (iii) above is to be computed by discounting the amount at the discount rate of the Federal Reserve Bank situated nearest to the Leased Premises at the time of the award plus one percent (1%). If, prior to an award by a court of competent jurisdic- tion, Landlord re-leases the Leased Premises following a ter- mination by reason of Tenant's default, and (ii) the fair market rent charged by Landlord on such re-leasing shall be deemed to be the rental value(as reasonably determined by Landlord) value of the Leased Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration calculation of the operation of this Lease under any present or future law, including any such right damages which Tenant would otherwise have if Tenant shall be dispossessed for any causeLandlord may recover from Tenant.
Appears in 1 contract
Samples: Lease Agreement
Default of Tenant. 21.1 Each In the event of the following shall constitute an Event any failure of Default: Tenant to pay any rental due hereunder within ten (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (510) days after written notice from Landlord that such payment has not been made ("Landlord Notice") to Tenant; or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or any failure to perform or observe any other term, condition or covenant of this Lease to be observed or condition, which violation or failure continues performed by Tenant for a period of more than thirty (30) days (or such additional time, in no event more than 60 additional days unless paragraph 17A.d applies, as is reasonably required to correct such failure) after written notice thereof from Landlordof such failure shall have been given to Tenant; or if Tenant or an agent of Tenant shall falsify any report required to be furnished to Landlord pursuant to the terms of this Lease; or if Tenant or any guarantor of this Lease shall become bankrupt or insolvent, or file any debtor proceedings, or any person shall take or have against Tenant or any guarantor of this Lease 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 for the appointment of a receiver or trustee of all or a portion of Tenant's or any such guarantor's property, or if Tenant or any such violation guarantor makes an assignment for the benefit of creditors, or failure is remediable but is petitions for or enters into an arrangement; or if Tenant shall abandon the Demised Premises (other than as permitted under paragraph 31) or suffer this Lease to be taken under any writ of such a nature that it cannot be remedied within such thirty (30) day periodexecution, then in any such event Tenant shall be in default hereunder, and Landlord, in addition to other rights and remedies it may have, may declare all rents reserved under this Lease for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation the then unexpired balance of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect term to Tenantbe immediately due and payable, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord and shall have (as and when allowed pursuant to judicial process) the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's immediate right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possessionmay remove all persons and property from the Demised Premises, as and such property may be applicable. If Landlord elects removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all without service of notice or resort to terminate legal process (except as required by law or this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done Lease) and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions being guilty of this Lease. Whether trespass or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain becoming liable for any Base Rent, Additional Rent loss or damages damage which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeoccasioned thereby.
Appears in 1 contract
Default of Tenant. 21.1 Each a. In the event of the following shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") failure of Tenant to pay any rental due hereunder on the date the same shall be due, or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or any failure to perform or observe any other covenant of the terms, conditions or condition, which violation covenants of this Lease to be observed or failure continues performed by Tenant for a period of more than thirty (30) days after written notice thereof from Landlordof such failure shall have been given to Tenant, or provided if such violation or failure is remediable but is of such a nature that it cannot be remedied cured within such said thirty (30) day period, then such period shall be extended so long as Tenant commence cure within said period and continues to diligently pursue cure thereafter, or (iii) if Tenant or an agent of Tenant shall falsify any report required to be furnished to Landlord pursuant to the terms of this Lease, or (iv) if Tenant or any guarantor of this Lease shall become bankrupt or insolvent, or file any debtor proceedings or any person shall take or have against Tenant or any guarantor of this Lease in any court pursuant to any statute either of the United States or of any state a petition of bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Tenant’s or any such longer period guarantor’s property and such proceedings or petition is not withdrawn within forty-five (not to exceed ninety (9045) days subject after filing, or (v) if Tenant or any such guarantor makes an assignment for the benefit or creditors, or (vi) if Tenant shall suffer this Lease to Force Majeure ) as may reasonably be requiredtaken under any writ of execution, provided that then in any such event Tenant promptly commences and diligently pursues such remedy to completion; shall be in default hereunder (d) Tenant's abandonment or vacation each of the Premises; (e) foregoing is an “Event of Bankruptcy as specified Default”), and Landlord, in Article XXII with respect addition to other rights or remedies it may have, shall have the immediate right of re-entry and may remove all persons and property from the Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost of, and for the account of Tenant, all without service of notice or resort to legal process and without being guilty of trespass, or becoming liable for any general partner of Tenant (a "General Partner") loss or any Guarantor; or (f) Tenant's dissolution or liquidationdamage which may be occasioned thereby.
21.2 If there shall be b. After an Event of Default, including an Event should Landlord elect to re-enter the Premises, as herein provided, or should it take possession of Default prior the Premises pursuant to the Rent Commencement Datelegal proceedings or pursuant to any notice provided for by law, then Landlord shall have the right, at its sole option, to it may either terminate this Lease. In additionLease or it may from time to time, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession make such alterations and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, repairs as may be applicable. If Landlord elects necessary in order to terminate this Lease and/or elects to terminate Tenant's right of possessionrelet the Premises, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone thereof upon such term or together with other premises, terms (which may be for a term extending beyond the Term of this Lease) and at such rent rental or rentals and upon such other terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, Landlord in its sole discretiondiscretion may deem advisable. Upon each such subletting 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 costs and expenses of such reletting, including brokerage fees and attorney’s fees and costs of such alterations and repairs; third, to the payment of the rent due and unpaid payment of future rent as the same may determinebecome due and payable hereunder. If such rentals received from such reletting during any month be less than that to be paid during that month by Tenant hereunder, but Tenant, upon demand, shall pay any such deficiency to Landlord. No such re-entry or taking possession of the Premises by Landlord shall not be liable forconstrued as an election on its part to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof is decreed by a court of competent
jurisdiction. Notwithstanding any such reletting without termination, nor shall Tenant's obligations be diminished Landlord may at any time after such re-entry and reletting elect to terminate this Lease for any such Event of Default, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason ofof such Event of Default, Landlord's failure including the cost of recovering the Premises, reasonable attorney’s fees, and including the worth (using a present value calculated using a six percent discount rate) at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to relet the Premises or collect any rent due upon such reletting. Whether or not reserved in this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Termstated term, less minus the amount of rentalrental loss which Tenant proves could have been reasonably avoided, if anyall of which amounts shall be immediately due and payable from Tenant to Landlord. Landlord shall also be entitled to any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant’s failure to comply with the requirements of this Lease.
c. Landlord may, which Landlord receives during at its option, instead of exercising any other rights or remedies available to it in this Lease or otherwise by law, statute or equity, spend such period from others money as is reasonably necessary to whom cure any Event of Default of Tenant herein and the Premises may amount so spent, and costs incurred, including attorney’s fees in curing such Event of Default, shall be rented (other than any paid by Tenant, as Additional Rent payable as a result Rent, upon demand.
d. After an Event of Default, in the event suit shall be brought for recovery of possession of the Premises, for the recovery of rent of any failure other amount due under the provisions of such this Lease, or because of the breach of any other person covenant herein contained on the part of Tenant to perform any of its obligations)be kept or performed, which damages and a breach shall be computed and payable in monthly installmentsestablished, in advanceTenant shall pay to Landlord all expenses incurred therefore, including a reasonable attorney’s fee, together with interest on all such expenses at the first day rate of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
ten percent (b10%) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of per annum from the date of Tenant's default) such breach of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose covenants of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Lease.
e. Tenant hereby expressly waives any right and all rights of redemption, re-entry redemption granted by or restoration of the operation of this Lease under any present or future law, including any such right which laws in the event of Tenant would otherwise have if Tenant shall be being evicted or dispossessed for any cause, or in the event of Landlord obtaining possession of the Premises, by reason of the violation by Tenant of any of the covenants or conditions of this Lease, or otherwise. Tenant also waives any demand for possession of the Premises, and any demand for payment of rent and any notice of intent to re-enter the Premises, or of intent to terminate this Lease, other than the notices above provided in this Article, and waives any and every other notice or demand prescribed by any applicable statues or laws.
f. No remedy herein or elsewhere in this Lease or otherwise by law, statute or equity, conferred upon or reserved to Landlord or Tenant shall be exclusive of any other remedy, but shall be cumulative, and may be exercised from time to time and as often as the occasion may arise.
Appears in 1 contract
Default of Tenant. 21.1 (1) Each of the following shall constitute be an "Event of Default: " by Tenant hereunder:
(a) Tenant's failure to make Any default by Tenant of this Sublease which results in the declaration of a default by the Landlord under the Prime Lease and which is not cured before the expiration of any payment of applicable grace or cure period under the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; Prime Lease.
(b) Tenant's failure A petition under the federal bankruptcy code, as amended from time to take possession time (the "Bankruptcy Code"), or any state bankruptcy or insolvency laws, is filed by, on behalf of, or against Tenant and such petition remains undismissed for a period of the Premises within sixty (60) days after such filing, such event shall constitute a default under this Sublease and Xxx shall be entitled to immediately exercise its rights and remedies under this Sublease without regard to the cure periods provided thereunder. Tenant further agrees, that in the event trustee or Tenant, as debtor-in-possession, rejects this Sublease or is deemed to have rejected this Sublease pursuant to the Bankruptcy Code, Xxx shall be entitled to possession of the Lease Commencement DatePremises immediately and without further obligation to Tenant or Tenant's trustee, and this Sublease shall terminate, but Rex's right to be compensated for damages in any such proceeding shall survive. In addition to the occurrence of the filing of a petition under the Bankruptcy Code or state bankruptcy or insolvency laws by, on behalf of, or against Tenant, the occurrence of any of the following shall constitute a default under this Sublease, and Xxx shall be entitled immediately to exercise its rights and remedies under this Sublease without regard to the cure periods provided hereunder: (i) general assignment for the benefit of creditors; (ii) the appointment under applicable state law of a trustee or receiver to take possession of substantially all of Tenant's assets or of Tenant's interest in this Sublease; or (iii) the attachment, or other judicial seizure of substantially all of Tenant's assets or of Tenant's interest in this Sublease.
(c) TenantIf Tenant is a corporation or a partnership, and if at any time during the term of this Sublease the person or persons which, on the date of this Sublease, own or owns a majority of such corporation's violation voting shares or failure the general partner's interest in such partnership, as the case may be, cease or ceases to perform own a majority of such shares or observe any other covenant general partner's interest as the case may be, except that this provision shall not be applicable to transfers by gift or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlordinheritance, or if such violation or failure to any XXX REALTY/UNITED INDUSTRIES SUBLEASE 2129 XXXXXX IND. DRIVE corporation all the outstanding voting stock of which is remediable but is listed on a national securities exchange (as defined in the Securities Exchange Act of such a nature that it cannot be remedied within such thirty (30) day period1934, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; amended).
(d) Tenant's abandonment or vacation Any other default by Tenant of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidationthis Sublease.
21.2 If there shall be an Event of Default, including (2) Should an Event of Default prior to the Rent Commencement Dateoccur under this Sublease, then Landlord shall have the right, at its sole option, to Xxx xxx (a) terminate this Lease. In additionSublease, expel and remove Tenant or any other person or persons in occupancy from the Premises with or without terminating appropriate legal or equitable proceedings, if necessary, together with their goods and chattels, and repossess the Premises; provided that notwithstanding the termination of this LeaseSublease, Landlord may re-enterXxx shall be entitled to damages provided by law, just as if Tenant repudiated this Sublease, or (b) terminate Tenant's right to possession only, without terminating this Sublease, and with or without process of possession law, expel and take possession of remove Tenant, or any other person or persons in occupancy from the Premises, together with their goods and chattels, and repossess the Premises without such entry and possession terminating this Sublease or releasing Tenant in whole or in part from Tenant's obligations to pay rent for the full term hereof. The provisions Upon and after entry and possession without termination of this Article Sublease, Xxx shall operate as a notice attempt to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereofthereof for the account of Tenant, alone to any person, firm, or together with other premisescorporation, for such rent rent, for such term, (including a term beyond the term hereof, but the part of any such term which is beyond the term hereof shall not be chargeable to Tenant's account), and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may Xxx shall reasonably determine, but Landlord and Xxx shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due apply all rents received upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be eithera reletting as follows:
(ai) first to the payment of such expenses as Xxx xxx incur in recovering possession of the Premises (including attorneys' fees and legal expenses), and in putting the same into good order and condition, and preparing, altering, advertising and brokering the same for rental or reletting, and all other expenses, commissions and charges paid, assumed, or incurred by Xxx in reletting the Premises; and
(ii) then to the fulfillment of the obligations of Tenant hereunder. At the option of Xxx, Tenant shall, in event of re-entry, be liable, in addition to any sums then due, for (i) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord amount by which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period rent reserved under this Sublease from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought of re-entry to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Termterm exceeds the net amount of any rents collected for the Premises for each month of the period which would otherwise have constituted the balance of the term of this Sublease, in which event the cause of action shall be deemed paid in monthly installments by Tenant on the rent days specified in this Sublease, and any suit brought to collect said amounts for any month or months shall not prejudice in any way the rights of Xxx to have accrued until collect the expiration of the Lease Term: or
deficiency for any subsequent month by a similar action or proceeding, or (bii) an amount equal in addition to the Present Value Damages. "Present Value Damages" any other proper claim to which Xxx shall be an amount equal to the present value (as of the date of Tenant's default) of entitled, but without duplication, the difference between (i) the Base Rent rent reserved hereunder for the unexpired portion of the term of this Sublease and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market reasonable rental value(as reasonably determined by Landlord) value of the Premises for the same period. If the Premises or any part thereof are relet by Xxx for the unexpired term, which Present Value Damages or any part thereof, the amount of rent reserved upon such reletting shall be payable deemed to Landlord in a lump sum on demandbe fair and XXX REALTY/UNITED INDUSTRIES SUBLEASE 2129 XXXXXX IND. For purpose of this Section, present DRIVE reasonable rental value shall be computed by discounting at a rate equal to one (1) whole percentage point above for the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration part of the operation whole of this Lease under any present or future lawthe Premises so relet during the term of the reletting. With whichever option, including any such right which Tenant would otherwise have if any, Xxx exercises, Tenant shall also be dispossessed liable for: (i) all costs and expenses incurred by Xxx (including reasonable attorneys' fees and legal expenses) in recovering possession or in collection of delinquent rent, whether or not litigation is commenced; (ii) all costs of redecorating, repairing, renovating and remodeling the Premises required to relet the Premises; and (iii) all advertising and brokerage costs and expenses incurred in reletting or attempting to relet the Premises. Xxx xxx xxx for sum(s) in advance or from time to time as the same accrue(s). At any causetime after repossession of the Premises, Xxx xxx terminate this Sublease.
Appears in 1 contract
Default of Tenant. 21.1 Each of the following (a) It shall constitute an Event of Default: Default if Tenant shall fail to perform or comply with its obligations to pay Rent under this Lease and such failure shall continue for a period of ten (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (510) days after Tenant’s receipt of written notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's for failure to take possession pay Rent. It shall also constitute an Event of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure Default it Tenant shall fail to perform or observe comply with any other covenant term or condition, which violation or this Lease and such failure continues shall continue for a period of thirty (30) days after Tenant’s receipt of written notice thereof from LandlordLandlord specifying such failure and requiring it to be remedied; provided, or however, that if any such violation or failure, other than the failure is remediable but is of such a nature that it to pay Rent, cannot with due diligence be remedied by Tenant within a period of thirty (30) days, it Tenant commences to remedy such failure within such thirty (30) day periodperiod and thereafter prosecutes such remedy with reasonable diligence, then the period of time for remedy of such longer failure shall be extended so long as Tenant prosecutes such remedy with reasonable diligence for a period (not to exceed ninety an additional sixty (9060) days subject to Force Majeure ) as days. Following the occurrence of any Event of Default, Landlord may reasonably be required, provided that Tenant promptly commences terminate this Lease and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation have immediate possession of the Premises; (e) an Event of Bankruptcy as specified , in Article XXII with respect addition to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidationother remedies allowed by law.
21.2 If there shall be (b) To the extent permitted by law and only to the extent permitted by law, upon an occurrence of an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, right at its sole option, election then or at any time thereafter and while any such Event of Default shall continue either:
(i) to give Tenant written notice of Landlord’s intention to terminate the Lease on the date of such given notice or on any later date specified therein, whereupon on the date specified in such notice, Tenant’s right to possession of the Premises shall cease and this Lease. In additionLease shall thereupon be terminated, with or without terminating this Leaseexcept as to Tenant’s liability, Landlord may as if the expiration of the term fixed in such notice were the end of the term herein originally demised; or
(ii) To re-enter, terminate Tenant's right of possession enter and take possession of the PremisesPremises or any part thereof and repossess the same as Landlord’s former estate and expel Tenant and those claiming through or under Tenant and remove the effects of both or either. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention Should Landlord elect to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained provided in this Lease Section or should Landlord take possession pursuant to be done and performed legal proceedings or pursuant to any notice provided for by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminatedlaw, Landlord may, but shall not be obligated tofrom time to time, without terminating this Lease, relet the Premises or any part thereofthereof in Landlord’s or in Tenant’s name, alone or together with other premisesbut for the account of Tenant, for such rent term or teams and upon all such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, Landlord in its sole discretion, may determine, but determine and Landlord may collect and receive the rents therefore. Landlord shall not in no way be responsible or liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's for any failure to relet the Premises or of for any failure to collect any rent due upon such reletting. Whether No such re-entry or taking possession of the Premises by Landlord shall be construed as an election on Landlord’s part to terminate the Lease unless a written notice of such intention is given to the Tenant. No notice from Landlord hereunder or under a forcible entry and detainer statute or similar law shall constitute an election by Landlord to terminate this Lease unless such notice specifically so states. Landlord reserves the right following any such re-entry and/or reletting to exercise its right to terminate this Lease by giving Tenant such written notice in which event this Lease will terminate as specified in said notice.
(iii) In the event Landlord does not elect to terminate the Lease as permitted herein but on the contrary elects to take possession, Tenant shall pay to the Landlord:
(A) the Rent and other sums due and payable hereunder as if such repossession had not occurred, less
(B) the net proceeds, if any, of any reletting of the Premises after deducting all of Landlord’s expenses in connection with such reletting, including legal fees and brokerage commission,
(C) Suit or suits for the recovery of the amounts and damages set forth above may be brought by Landlord from time to time at Landlord’s election and nothing herein shall be deemed to require Landlord to await the date whereon this Lease or the term herein would have expired by limitation had there been no such default by Tenant or no such termination as the case may be. Each right and remedy as provided for in this Lease shall be cumulative and shall be an addition to every other right or remedy provided for in the Lease or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due hereafter existing at law or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) equity or by statute or otherwise. All costs incurred by Landlord in pursuit connection with collecting any amounts and damages owing by Tenant pursuant to the provisions of its remedies and in renting this Lease or to enforce any provision of this Lease, including reasonable attorneys fees from the Premises date any such matter is turned over to others from time to time. Tenant an attorney, shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due recoverable by Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
Appears in 1 contract
Samples: Lease Agreement (Tvi Corp)
Default of Tenant. 21.1 Each (a) The occurrence of any of the following shall ----------------- constitute an event of default (each, an "Event of Default: ") under this Lease:
(ai) Failure of Tenant to pay any Rent when due hereunder after seven (7) days written notice from Landlord; Tenant's failure to make perform any payment of the Base Rentcovenant, Additional Rent condition or any obligation under this Lease (other sum than those set forth in (i) above) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after written notice thereof from and demand by Landlord, or if such violation or unless the failure is remediable but is of such a nature that it cannot be remedied within such character as to require more than thirty (30) day perioddays to cure, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there which event it shall be an Event of Default, including Default upon Tenant's failure to commence and proceed diligently to cure such default. Appointment of a receiver or trustee of the assets of Tenant.
(b) Upon the occurrence of an Event of Default prior to the Rent Commencement Date, then Default:
(i) Landlord shall have the right, at its sole option, to may terminate this Lease. In addition, with or without terminating Lease and/or any services provided to Tenant under this Lease, Landlord may re-enterby giving notice of such termination to Tenant, terminate Tenant's right of possession whereupon this Lease shall automatically cease and take possession of terminate, and Tenant shall be obligated to immediately quit the Premises. The provisions of this Article shall operate as a notice to quit, any Any other notice to quit or notice of Landlord's intention to re-enter the Premises being is hereby expressly waived. If necessaryLandlord elects to terminate this Lease, everything contained in this Lease on the part of Landlord to be done and performed shall cease, without prejudice, however, to the right of Landlord to recover from Tenant all Rent accrued up to the time of termination or recovery of possession by Landlord, whichever is later, and any other monetary damages or loss of Rent sustained by Landlord.
(ii) Whether or not this Lease is terminated pursuant to (i) above, Landlord may proceed to recover possession of the Premises under and by virtue of the provisions of the laws of the Commonwealth State of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate lawful.
(iii) Should this Lease and/or elects be terminated pursuant to(i) above, Landlord shall have the option to terminate Tenantrelet the Premises for such rent and upon such terms as are not unreasonable under the circumstances and, if the full Rent reserved under this Lease (and any of the costs, expenses, or damages indicated below) shall not be realized by Landlord, Tenant shall be liable to Landlord for deficiency in Rent, reasonable attorneys' fees, reasonable brokerage fees (attributable to the end of the Term), and the reasonable expenses of placing the Premises in the condition Tenant is required to return the same at the end of the Term.
(iv) Tenant shall pay to Landlord as damages, in monthly installments, an amount equal to the Rent for the balance of the Lease Term (not including any unexercised renewal options) had this Lease not been terminated, less the net proceeds, if any, of any reletting of the Premises by Landlord subsequent to such termination, after deduction of Landlord's right reasonable legal expenses and court costs in connection with such recovery of possession. Landlord shall be entitled to collect and receive such damages from Tenant on the days on which the Rent would have been payable if this Lease had not been terminated.
(c) If, then everything under the provisions hereof, Landlord shall institute proceedings against Tenant and a compromise or settlement thereof shall be made, the same shall not constitute a waiver of any other covenant, condition, agreement or obligation contained in this Lease, nor of any of Landlord's rights under this Lease.
(d) If Tenant commits an Event of Default in the making of any payment or in the doing of any act under this Lease required to be made or done and performed by Landlord shall ceaseTenant, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, then Landlord may, but shall not be obligated required to, relet make such payment or do such act, and charge the Premises or any part amount of the expense thereof, alone if made or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as done by Landlord, in its sole discretion, may determinewith interest thereon at the Lease Interest Rate. Such payment and interest shall constitute Additional Rent hereunder due and payable within thirty (30) days of Landlord's demand therefor, but the making of such payment or the taking of such action by Landlord shall not operate to cure such default or to estop Landlord from the pursuit of any remedy to which Landlord would otherwise be liable forentitled at law, nor in equity or under this Lease.
(e) Notwithstanding any of the terms and provisions herein contained to the contrary, Landlord and Tenant shall Tenanteach have the duty and obligation to use reasonable efforts to mitigate any and all damages that may or shall be caused or suffered by virtue of the other's obligations be diminished by reason defaults under, or violation of, Landlordany of the terms and provisions of this Lease. The burden of proof as to the reasonableness of a party's failure to relet efforts shall be borne by the defaulting party in any litigation between the parties. In the event of an Event of Default by Tenant, if Landlord puts a for lease sign on the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing lists the Premises in rentable condition and tenant finish necessitated with a broker to obtain the new tenant) incurred by lease, Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until satisfied the expiration provisions of this subsection.
(f) All rights and remedies of the parties under this Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal cumulative and shall not be exclusive of any other rights and remedies provided to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same periodeach under this Lease, which Present Value Damages rights and remedies include specific performance, a suit for actual damages incurred and injunctive relief, except that Landlord shall be payable have no right to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting accelerate rent for more than six (6) months at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causetime.
Appears in 1 contract
Samples: Lease (Silver Diner Inc /De/)
Default of Tenant. 21.1 Each Tenant shall be in default under the terms of this Lease if:
(i) Tenant shall fail to pay when due the following shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rent, Additional Minimum Rent or any additional rent or other sum (i) within charges due hereunder provided Tenant shall have five (5) days to cure such default upon written notice from Landlord that such payment has not been made ("Landlord Notice") or Landlord; or
(ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure shall fail to take possession observe or perform any of the Premises within sixty terms, covenants or conditions of this Lease other than those set forth in Subsection 28.1(i), and such failure shall continue after ten (6010) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after days’ notice thereof from by Landlord, or or, if such violation or failure is remediable but the default is of such a nature that it cannot be remedied cured within ten (10) days, if Tenant shall not have commenced the curing of such default within such thirty ten-day period and thereafter proceed diligently to cure the default; or
(30iii) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation any guarantor of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant this Lease (a "General Partner"“Guarantor”) shall file a voluntary petition in bankruptcy or apply for reorganization or make an assignment for the benefit of creditors, or if any receiver or trustee is appointed for any of Tenant’s (or any Guarantor; ’s) property or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises business or any part thereof, alone petition in bankruptcy is filed against Tenant (or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(sGuarantor), and such suits shall receiver, trustee or petition is not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: discharged within sixty (60) days; or
(biv) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value any final judgment against Tenant (as of the date of or any Guarantors) is not satisfied within sixty (60) days or any execution or attachment is issued against Tenant (or any Guarantor) or Tenant's default’s (or any Guarantor’s) of the difference between property and remains unsatisfied or undischarged for ten (i10) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and days; or
(iiv) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causevacate or abandon the Leased Premises.
Appears in 1 contract
Samples: Lease (Carrollton Bancorp)
Default of Tenant. 21.1 Each If any one or more of the following shall constitute an Event of Defaultoccurs: (a2) Tenant's failure to make any a rent payment of the Base Rent, Additional Rent or any other sum (i) within payment due from Tenant to Landlord shall be and remain unpaid in whole or in part for more than five (5) days following written notice from form Landlord that such of non-payment by Tenant; provide, however, if Landlord has not been made given two ("Landlord Notice"2) or more of such notices during the preceding twelve (ii12) month period, no such prior notice need be given by Landlord and Tenant shall be in default under this Lease Agreement if the payment is not made by Tenant has received three within ten (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (6010) days of the Lease Commencement Datedate same is due and payable; (c2) Tenant's Tenant shall not violate or default on any of the other covenants, agreements, stipulations or conditions herein or in any other agreement between Landlord and Tenant relating to the Premises and such violation or failure to perform or observe any other covenant or condition, which violation or failure continues default shall continue for a period of thirty (30) days after notice thereof from Landlord(or such additional period of time, or not to exceed and additional sixty (60) days, as is reasonable under the circumstances if such the violation or failure is remediable but default is of such a nature the type that it cannot can be remedied reasonably be cured within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that and Tenant promptly commences such cure and at all times diligently pursues same) after written notice from Landlord of such remedy to completion; (d) Tenant's abandonment violation or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantordefault; or (f3) Tenant's dissolution if Tenant or liquidation.
21.2 If there any guarantor of this Lease Agreement shall commence or have commenced against Tenant or any guarantor proceedings under a bankruptcy, receivership, insolvency or similar type of action; then it shall be an Event of Defaultoptional for Landlord, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole optionwithout further notice or demand, to cure such default or to declare this Lease Agreement forfeited and the said Term ended, or to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate only Tenant's right of possession and take to possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention and to re-enter the Premises being hereby expressly waived. If necessarywith or without process of law, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by using such other proceedings, including re-entry and possession, force as may be applicable. If Landlord elects necessary to terminate this Lease and/or elects to terminate Tenant's right of possessionremove all persons or chattels therefrom, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for damages by reason of such re-entry or forfeiture; but notwithstanding re-entry by Landlord of forfeiture of termination of this Lease Agreement or termination only of Tenant's right to possession of the Premises, the Liability of Tenant for the rent and all other sums provided for herein shall not be relinquished or extinguished for the balance of the Term of this Lease Agreement and Landlord shall be entitled to periodically sue Xxxant for all sums due under this Lease Agreement or which become due prior to judgment, but such suit shall not bar subsequent suits for any further sums coming due thereafter. Tenant shall be responsible for, nor shall Tenantin addition to the rentals and other sums agreed to be paid hereunder, the cost of any necessary maintenance, repair, restoration, reletting (including related cost of removal or modification of tenant improvements) or cure as well as reasonable attorney's obligations be diminished fees incurred or awarded in any suit or action instituted by reason ofLandlord to enforce the provisions of this Lease Agreement, Landlord's failure to relet regain possession of the Premises or collect any rent the collection of the rentals due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to timehereunder. Tenant shall also be liable to Landlord for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder payment of the Lease Term, less a late charge in the amount of rental10% of the rental installment or other sum due Landlord hereunder if said payment has not been received within ten (10 days) from the date said payment becomes due and payable, if anyor cleared by Landlord's bank within three (3) business days after deposit. Tenant agrees to pay interest at 12% per annum or the maximum permissible rate under the applicable usury statutes, which whichever is less, on all rentals and other sums due Landlord receives during such period hereunder not paid within ten (10) days from others to whom the Premises may be rented (other than any Additional Rent payable as a result date the same becomes due and payable. Each right or remedy of any failure of such other person to perform any of its obligations), which damages Landlord provided for in this Lease Agreement shall be computed cumulative and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not in addition to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but every other right or remedy provided for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present Agreement now or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causehereafter existing at law or in equity or by the statute or otherwise.
Appears in 1 contract
Samples: Lease Agreement (Cray Inc)
Default of Tenant. 21.1 Each The following events shall be a default (“Default”) of Tenant under this Lease:
1. Failure of Tenant to pay any Rent when due.
2. Failure of Tenant to perform or comply with any provision of this Lease to be performed or complied with by Tenant (other than provisions for the following shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rent), Additional Rent or any other sum and such failure continues for fifteen (i) within five (515) days after notice from Landlord to Tenant specifying the failure (provided, however, if such failure cannot be cured within such fifteen (15) day period, Tenant shall not be in default if Tenant, within such fifteen (15) day period, commences and diligently proceeds with all actions necessary to cure such failure); provided, however, that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three two (32) such Landlord Notices during notices within the immediately preceding 365-day period, no notice of any such Lease Year failure shall be required.
3. If Tenant, any guarantor of Tenant or, if Tenant is a partnership or consists of two or more persons, any such partner or person, shall file a voluntary petition in bankruptcy or insolvency, or shall be adjudicated a bankrupt or insolvent, or shall file a petition or answer seeking any reorganization, arrangement composition, readjustment, liquidation, dissolution, or similar relief under the present or any future federal bankruptcy acts or any other present or future applicable federal, state, or other statue or law, or shall make an assignment for the benefit of creditors, or shall seek or consent to or acquiesce in the appointment of a trustee, receiver or liquidator of Tenant or of such guarantor, partner, or person.
4. If any proceeding seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future bankruptcy act or any other present or future applicable federal, state or other statute or law, is filed against Tenant, any guarantor of Tenant, or, if Tenant is a partnership, against any such partner of Tenant, whether by filing of a petition or otherwise, and such preceding shall not have been dismissed within five ninety (590) days after the filing thereof; or if a trustee, receiver or liquidator is appointed for Tenant or for any guarantor or, if Tenant is a partnership, any such partner of Tenant, without the consent or acquiescence of Tenant, and such appointment shall not have been vacated or otherwise discharged within ninety (90) days after such payment's due dateappointment; (b) or, if any execution or attachment shall be issued against the property of Tenant or of any guarantor or partner of Tenant's failure , pursuant to which execution or attachment the Premises shall be taken or occupied or attempted to be taken or occupied; or
5. If Tenant fails to take possession of the Premises within sixty (60) days as of the Lease Commencement Date; (c) Tenant's violation Date or failure to perform vacates or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet abandons the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, ceases to carry on its ordinary activities in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the normal expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
Appears in 1 contract
Samples: Lease (MPC Corp)
Default of Tenant. 21.1 Each (a) The occurrence of any one or more of the following events shall constitute an Event event of Default: (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum default hereunder:
(i) within five Tenant shall fail to pay when due any rent or other charges payable hereunder and such failure shall continue for ten (510) days after Landlord shall have given Tenant written notice from Landlord that specifying such payment has not been made ("Landlord Notice") or failure; or
(ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure shall fail to perform or observe any other term, condition or covenant or condition, which violation or failure continues for a period of this Lease and shall fail to remedy the same within thirty (30) days after Landlord shall have given Tenant written notice thereof from Landlordspecifying such failure; or
(iii) Tenant shall file or consent to the filing of, a petition in bankruptcy or if for reorganization or for the adoption of an arrangement under the Bankruptcy Act (as now or in the future amended); or by its making an assignment of all or of a substantial part of its property for the benefit of its creditors; or by the appointment of a receiver for all or a substantial part of its property and such violation or failure receivership is remediable but is of such a nature that it cannot be remedied vacated within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantordays; or by its being adjudicated a bankrupt or insolvent and such adjudication becoming final; or
(fiv) Tenant's dissolution Tenant shall abandon or liquidationsurrender the demised premises or suffer this Lease to be taken under any writ of execution.
21.2 (b) If there shall be an Event any event of Default, including an Event of Default prior to the Rent Commencement Datedefault occurs, then Landlord Landlord, besides other rights or remedies it may have, shall have the rightimmediate right of re-entry and may remove all persons and property from the demised premises, at its sole option, to and Landlord may either:
(i) terminate this Lease. In addition, with or Lease in which event Landlord shall be entitled to recover from Tenant the aggregate of:
(1) any unpaid rent and other charges which had been due and payable as of the date of termination;
(2) any unpaid rent and other charges which would have become due and payable after the date of termination throughout the remainder of the lease term reduced by any loss which Tenant proves could have been reasonably avoided.
(ii) without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises demised primises or any part thereof, alone or together with other premises, as the agent and for such rent and the account of Tenant upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Termdeem advisable, in which event the cause of action rents received on such reletting shall be deemed not applied first to have accrued until the expiration payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second, to the payment of al1 costs and expenses of such reletting (including necessary renovation and alteration of the Lease Term: or
(b) an amount equal demised premises, reasonable attorneys’ fees and real estate commissions paid); third, to the Present Value Damages. "Present Value Damages" shall payment of rent due and unpaid hereunder, and the residue, if any, to be an amount equal to held by Landlord and applied in payment of future rent as the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have same may become due through and payable hereunder. If rentals received from such reletting during any month are less than the date on which the Lease Term would have expired but for Tenant's defaultrent due hereunder, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages Tenant shall be payable pay any such deficiency to Landlord in a lump sum on demandmonthly. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, No such re-entry or restoration taking possession of the operation of demised premises by Landlord shall be construed as an election on its part to terminate this Lease under any present or future law, including unless a written notice of termination is given by Landlord to Tenant. Notwithstanding any such right which Tenant would otherwise have if Tenant reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous events of default, and in such event, the provisions of Section 23(b)(i) hereof shall be dispossessed for any causeapplicable.
Appears in 1 contract
Samples: Lease Agreement (Palace Entertainment Holdings, Inc.)
Default of Tenant. 21.1 Each of A. In the following shall constitute an Event of Default: event Tenant fails to cure any default after ten (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (6010) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof written notifica- tion from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, at any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default time prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease and to retain all monies theretofore paid by Tenant as liquidated damages. Landlord shall, in lieu thereof, have the option to continue specifically to enforce the terms of this Lease. After the Rent Commencement Date, the occurrence of any one or more of the following events shall constitute a material default by Tenant under this Lease:
1. The failure by Tenant to make any payment of rent or any other sum re- quired to be made by Tenant under this Lease within ten (10) days after Tenant is in receipt of written notification from Landlord of failure to make payment of rent or other sums.
2. Tenant Transfers or mortgages or agrees to Transfer or mortgage this Lease or possession of all or any portion of the Leased Premises without Land- lord’s prior written consent.
3. The failure to comply with any of the other obligations of Tenant as pro- vided in this Lease within a reasonable time following its due date, but not later than thirty (30) days after written notice by Landlord to Tenant speci- fying Tenant’s failure to perform such obligation; provided, however, that if the nature of Tenant’s obligation is such that more than thirty (30) days are required for performance (and subject to further extension pursuant to Paragraph 31.0 hereof), then Tenant shall not be in default if Tenant com- mences performance within such thirty (30) day period and thereafter dili- gently prosecutes its efforts to satisfy such obligation..
B. In additionthe event Tenant or any guarantor of this Lease shall become bankrupt or insol- vent, file any debtor proceedings, or take or have taken against Tenant or any guar- antor of this Lease 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 for the appointment of a receiver or trustee of all or a portion of Tenant's or any such guarantor's property; or if Tenant or any such guarantor makes an assignment for the benefit of creditors or petitions for or enters into an arrangement; or if Tenant shall abandon the Leased Premises, or suffer this Lease to be taken under any writ of execution, then Landlord, in addition to all other rights or remedies it may have, shall have the immediate right to re-enter and may remove all persons and property from the Leased Premises and place and store such property in a warehouse or else- where at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby.
C. On the occurrence of any default of this Lease by Xxxxxx, Landlord may at any time thereafter, with or without terminating this Lease, notice or demand and without limiting Landlord in the exercise of a right or remedy which Landlord may re-enter, terminate Tenant's right have by reason of possession and take possession of such default do the Premisesfollowing:
1. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, perform any one or more of the obligations of Tenant in default (including, but not limited to, payment of any sum, obtaining and maintaining any insurance policies, and maintaining and repairing the Leased Premises and Landlord may enter upon the Leased Premises for such purpose and take all such action thereon as may be nec- xxxxxx therefor. Notwithstanding anything contained in this Lease, in the event of an emergency, Landlord shall have the right to immediately per- form the obligations of Tenant under this Lease without notice or demand and without liability to Tenant, subject to reimbursement of all liabilities, costs and expenses incurred by Landlord thereby as provided in this Section entitled “Default of Tenant.” In the event Landlord performs such obliga- tions of Tenant as provided herein, then Tenant shall promptly, but in no event later than five (5) business days following written demand therefor from Landlord, pay to Landlord all liabilities, costs and expenses (includ- ing, without limitation, reasonable attorneys’ fees) incurred by Landlord arising out of, in connection with or resulting from such performance by Landlord, together with interest thereon at the highest lawful rate from the respective dates of Landlord’s making each such payment or incurring each such liability, cost and expense (subject to the Section entitled “Rental” hereof) until payment thereof, and same shall constitute additional rent hereunder.
2. Landlord may elect to continue the term of this Lease in full force and effect and not terminate Tenant's right to possession of the Leased Premises, in which event Landlord shall have the right to enforce any rights and remedies granted by this Lease or by law or equity against Tenant, including, without limitation, the right to collect when due rent and/or other sums payable here- under. Landlord shall not be deemed to have elected to terminate this Lease unless Landlord gives Tenant written notice of such election to terminate. Landlord's acts of maintenance or preservation of the Building or efforts to relet the Leased Premises shall not terminate this Lease; or
3. Landlord may elect by written notice to Tenant to terminate this Lease at any time after the occurrence of any default of this Lease by Xxxxxx. If Landlord elects to terminate this Lease, Landlord may, at its option, re-enter the Leased Premises. Should Landlord elect to re-enter, as herein provided, or should Landlord take possession pursuant to legal proceedings, or pursu- ant to any notice provided for by law, Landlord may either terminate this Lease or it may, from time to time, without terminating this Lease make such alterations and repairs as may be necessary to relet the Leased Prem- ises and may thereafter relet the Leased Premises and any part thereof, alone or together with other premises, thereof for such rent term or terms (which may be for a term extending beyond the Lease Term) and at such rental or rentals and upon such other terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determinedeem advisable. Upon such reletting, but all rentals received by Landlord from such reletting shall not be liable forapplied: first, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any payment of indebtedness other than rent due upon hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting. Whether or not this Lease is terminatedre- letting, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, including brokerage fees and expenses (including without limitation reasonable attorneys' feesattorney's fees and of costs for repairs in the Leased Premises other than repairs for normal wear, brokerage feestear, expenses incurred in placing the Premises in rentable condition acts of God, or for damage covered by fire and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal casualty insurance; third, to the Base Rent, Additional Rent payment of rent due and other amounts due Landlord which would have become due during unpaid hereunder; and the remainder of the Lease Term, less the amount of rentalresidue, if any, which shall be held by Landlord receives and applied in payment of future rent as the same may become due and payable hereunder. If such rentals received from such re- letting during any month are less than the rental required to be paid during the month by Tenant hereunder, Tenant shall pay any such period from others deficiency that shall be calculated and paid monthly. No such re-entry or taking possession of the Leased Premises by Landlord shall be construed as an election on its part to whom the Premises may be rented (other than any Additional Rent payable as terminate this Lease unless a result of any failure written notice of such other person intention be given to perform Tenant or unless the termination thereof be decreed by a court of compe- tent jurisdiction. Notwithstanding any of its obligations)such reletting without termination, which damages shall be computed and payable in monthly installmentsLandlord may at any time thereafter elect to terminate this Lease for such previous breach. Should Landlord at any time terminate this Lease for any breach, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought addition to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or other remedies Landlord may defer any have, Landlord may recover from Tenant all damages Landlord may incur by reason of such suit until after breach, including the expiration costs of recovering the Leased Premises and reasona- ble attorney's fees, all of which amounts shall immediately be due and pay- able from Tenant to Landlord.
4. On termination of this Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date by reason of Tenant's default) , Landlord may recover from Tenant all damages incurred by Landlord by reason of Ten- ant's default, including, but not limited to:
a. The cost of recovering possession of the difference between Leased Premises;
b. Reasonable expenses of reletting (including, but not limited to, ad- vertising costs, necessary renovation and alteration of the Leased Premises and the cost of any concessions which Landlord gives to relet the Leased Premises, reasonable attorney's fees, and any real estate commissions paid or payable by Landlord applicable to the unexpired term of this Lease) notwithstanding the foregoing, the amount of such expenses shall not exceed the remaining amount due under the Lease, including but not necessarily limited to, Base Rent and Tenant’s proportionate share of Building Operating Expenses;
c. The worth at the time of award by a court of competent jurisdiction of the amount:
(i) of any unpaid rent which had been earned at the Base Rent and Additional Rent that time of ter- mination; plus
(ii) the amount by which the unpaid rent which would have become due through been earned after termination until the date on time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus
(iii) the amount by which the unpaid rent for the balance of Lease Term term after the time of award exceeds the amount of the rental loss that Tenant proves could be reasonably avoided; plus
(iv) any other amount necessary to compensate Landlord for all detriment proximately caused by Xxxxxx's failure to perform its obligations under this Lease or which in the ordinary course of things would have expired but for be likely to result therefrom. The worth “at the time of termination" as used in subparagraph
(i) above and the worth “at the time of award as used in sub- paragraph (ii) above is to be computed by allowing interest at the rate of eighteen percent (18%) per annum. The worth “at the time of award" as used in subparagraph (iii) above is to be computed by discounting the amount at the discount rate of the Federal Reserve Bank situated nearest to the Leased Premises at the time of the award plus one percent (1%). If, prior to an award by a court of competent jurisdic- tion, Landlord re-leases the Leased Premises following a ter- mination by reason of Tenant's default, and (ii) the fair market rent charged by Landlord on such re-leasing shall be deemed to be the rental value(as reasonably determined by Landlord) value of the Leased Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration calculation of the operation of this Lease under any present or future law, including any such right damages which Tenant would otherwise have if Tenant shall be dispossessed for any causeLandlord may recover from Tenant.
Appears in 1 contract
Samples: Lease Agreement
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: (a) Tenant's If Tenant shall fail to pay any installments of rent when due or fail to keep and perform any other covenant of this Lease and if Tenant shall continue in any such failure to make any or default for a period of fifteen (15) days in the event of non-payment of rent or thirty (30) days in the Base Rent, Additional Rent or event of any other sum (i) within five (5) days default after Landlord has given Tenant written notice from thereof and demand for payment of rent or correction of default, as the case may be, Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to may reenter the Premises and take possession of the Premises within sixty (60) days same, including the Buildings, parking area, improvements and attached fixtures, other than the removable trade fixtures and equipment, either with or without process of the Lease Commencement Date; (c) Tenant's violation or failure law, and expel Tenant therefrom without prejudice to perform or observe any other covenant legal or conditionequitable remedies available to Landlord. No such entry by Landlord, either with or without process of law, shall bar Landlord from the recovery of damages as hereinafter set forth. If any default shall occur (other than in the payment of rent) which violation or failure continues for cannot with due diligence be cured within a period of thirty (30) days after notice thereof from Landlorddays, or if such violation or failure is remediable but is and Tenant, prior to the expiration of such a nature that it cannot be remedied within such thirty (30) day perioddays from and after the giving of notice as aforesaid, then for commences to eliminate such longer period (default and proceeds diligently to take steps to cure the same, Landlord shall not have the right to exceed ninety (90) days subject to Force Majeure ) reenter as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidationhereinbefore provided.
21.2 (b) If there shall be an Event of DefaultLandlord elects to reenter, including an Event of Default prior to the Rent Commencement Dateas herein provided, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and should take possession of the Premises. The provisions of this Article shall operate as a , Buildings and parking area pursuant to legal proceedings or pursuant to any notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessaryprovided for by law, Landlord may proceed either terminate this Lease or may, from time to recover possession of the Premises under time without terminating this Lease and by virtue of the laws of the Commonwealth of Virginiato mitigate damages, or by make such other proceedings, including re-entry alterations and possession, repairs as may be applicablenecessary in order to relet the Premises, and relet said Premises or any part thereof for such term or terms and at such rental and upon such other terms and conditions as Landlord may deem advisable; and, upon each such reletting, all rental received by Landlord from such reletting shall be applied, first, to payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of any such reletting, including attorney's fees and costs of such alterations and repairs; third, 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. If such rentals received from such reletting during any month be less than that to be paid during that month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such deficiency shall be calculated and paid monthly by Tenant within ten (10) days after the receipt of said calculation from Landlord. If such deficiency be not paid, Landlord elects may xxx monthly, periodically or at the end of the term to recover the same with the other charges set forth herein, as Landlord may elect. No such reentry or taking possession of said Premises by Landlord shall be construed as an election on its part to terminate this Lease and/or elects unless a written notice of such intention be given to Tenant by Landlord. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate Tenant's right of possession, then everything contained in this Lease to for such previous breach. If Landlord at any time terminates this Lease for any breach, it shall be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right entitled to recover from Tenant all the costs of recovering the Premises, reasonable attorney's fees and the worth at the time of such termination of the excess, if any, of the amount of rent and other sums due under the terms and conditions of this Lease. Whether or not charges reserved in this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less term for which Tenant is obligated over the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present then reasonable rental value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration remainder of the operation of this Lease under any present or future law, including any such right term for which Tenant would otherwise have if Tenant shall be dispossessed for any causeis obligated.
Appears in 1 contract
Samples: Lease Agreement (Sport Haley Inc)
Default of Tenant. 21.1 Each of the following If tenant shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five fail to pay any monthly installment of rent (5as required by Article 3 hereof) days notice from Landlord that such or shall fail to timely make any other payment required by the terms and provisions hereof (although no legal or formal demand has not been made ("Landlord Notice"therefore) , or (ii) if Tenant has received three violate or fail to perform any of the other terms, conditions, covenants or agreements herein made by tenant, or (3iii) abandon or vacate the premises, and such Landlord Notices during failure to pay rent, such Lease Year within other violation or failure or such abandonment shall continue for a period of time of five (5) days after such payment's due date; written notice thereof to Tenant by landlord, or (biv) make or consent to an assignment for the benefit of creditors or a common law composition of creditors, or receiver of Tenant's failure to take possession of assets is appointed or tenant files a voluntary petition in any bankruptcy or insolvency proceeding, or an involuntary proceeding is filed against Tenant and not discharged by the Premises Tenant within sixty (60) days days, or Tenant is adjudicated a bankrupt, then, and in any of said events, this lease shall, at the option of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or conditionlandlord, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences cease and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of terminate and the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article "15" shall automatically operate as a notice to quit, --any other notice to quit quit, or of Landlord's Landlords intention to re-enter the Premises enter, required by law or otherwise being hereby expressly waived. If necessary, --and Landlord may proceed to recover possession of the Premises under and by virtue of the provisions of the laws of the Commonwealth State of Virginia, Maryland or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possessionlease, then everything contained in this Lease on the part of the Landlord to be done and performed by Landlord shall cease, cease without prejudice, however, to Landlord's the right of the Landlord to recover from Tenant tenant all rent and any other sums due under accrued up to the terms and conditions time of termination or recovery of possession by the landlord, whichever is later. Should this Lease be terminated before the expiration of the term of this Lease. Whether Lease by reason of Tenant's default as hereinabove provided, or not if tenant shall abandon or vacate the premises before the expiration date of the term of this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not the premises may be obligated to, relet the Premises or any part thereof, alone or together with other premises, by landlord for such rent and upon such terms as are not unreasonable under the circumstances and, if the full rental hereinabove provided (and conditions (which may include concessions any other costs, expenses, or free rent and alterations of the Premisesdamages indicated below) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, realized Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain be liable for any Base Rentall damages sustained by landlord including, Additional Rent without limitation, deficiency in rent, reasonable attorney's fees, real estate brokers' or damages which agents fees and commissions, and expenses of placing the premises in first class rentable condition. Any damage or loss of rent sustained by Landlord may be due recovered by Landlord, at Landlords' option, at the time of the relettings, or sustained prior to such defaultin separate actions, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which said damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the been made more easily ascertainable by successive expiration of the Lease Termterm of this Lease, in which event Tenant hereby agrees that the cause of action shall not be deemed not to have accrued occurred until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) expiration of said term. The provisions contained in this paragraph shall be in addition to and shall not prevent the enforcement of any claim Landlord may have against tenant for anticipatory breach of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose unexpired term of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeLease.
Appears in 1 contract
Samples: Commercial Lease (Hunapu Inc)
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: A. If (a) Tenant's Tenant shall fail to pay any installment of Monthly Base Rent or fail to timely make any other payment required by the terms and provisions hereof and such failure to make any payment of the Base Rent, Additional Rent or any other sum pay shall continue for more than seven (i7) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) business days after such payment's due datewritten notice thereof to Tenant by Landlord; or (b) Tenant's failure Tenant shall violate or fail to take possession perform any of the Premises within sixty (60) days of the Lease Commencement Date; (c) other terms, conditions, provisions, covenants or agreements herein made by Tenant's , and if such violation or failure to perform or observe any other covenant or condition, which violation or failure continues shall continue for a period of thirty (30) days after written notice thereof from to Tenant by Landlord, or provided, however, that if the nature of such violation or failure is remediable but is not reasonably capable of such a nature that it cannot be remedied being cured within such thirty (30) day period, then for the period in which Tenant may cure such longer period failure shall be extended to a total of up to one hundred twenty (not to exceed ninety (90120) days subject to Force Majeure ) as may reasonably be requireddays, provided that Tenant promptly commences the cure of such violation or failure within the initial thirty (30) day period and thereafter continually and diligently pursues the cure of such remedy to completionviolation or failure; or (d) Tenant's abandonment or vacation of the Premises; (ec) an Event of Bankruptcy (as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner"Section 20.D below) or any Guarantorshall occur; or (fd) Tenant's ’s dissolution or liquidation.
21.2 If there liquidation shall be occur; or (e) any subletting, assignment, transfer, mortgage or other encumbrance of the Demised Premises or this Lease not permitted by Section 34, then and in any of said events (each such event, following expiration of the applicable notice and cure period is referred to as an “Event of Default”), including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole optionelection, then or at any time thereafter while such Event of Default shall continue, either:
(1) To give Tenant written notice of its intent to terminate this Lease. In additionLease on the date of such notice or on any later date specified therein, and on the date specified in such notice Tenant’s right to possession of the Demised Premises shall cease and this Lease shall thereupon be terminated; or
(2) Subject to all applicable laws, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession to reenter and take possession of the Demised Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone and repossess the same as of Landlord’s former estate and expel Tenant and those claiming through or together under Tenant and remove the effects of both or either, by summary proceedings, or by action at law or in equity or by force (if necessary) or otherwise, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of rental or breach of covenant. If this Lease is terminated or Landlord recovers possession of the Premises before the expiration of the Term by reason of Event of Default by Tenant in accordance with other premisesthis Section 20, Landlord shall take all reasonable steps to relet the Premises for such rent and upon such terms as are not unreasonable under the circumstances.
B. If Landlord terminates this Lease pursuant to this Section 20, Tenant shall remain liable (in addition to accrued liabilities) for (i) the rental and conditions all other sums provided for in this Lease which would have been due and payable to Landlord had such termination not occurred, or any and all reasonable costs and expenses incurred by Landlord in reentering the Demised Premises, repossessing the same, making good any Event of Default of Tenant, reletting the same (including any and all reasonable attorney’s fees and disbursements and brokerage fees incurred in so doing), and any and all reasonable costs and expenses which Landlord may include concessions incur during the occupancy of any new tenant or free rent subtenant; less (ii) the net proceeds of any reletting prior to the date when this Lease would have expired if it had not been terminated. Tenant agrees to pay to Landlord the difference between items (i) and alterations (ii) to the foregoing sentence with respect to each month during the Term, at the end of such month. Any suit, action or proceeding brought by Landlord to enforce collection of such difference for any one month shall not prejudice Landlord’s right to enforce the collection of any difference for any subsequent month. Landlord shall use commercially reasonable efforts to relet the whole or any part of the Premises) Demised Premises for the whole of the unexpired Term, or longer, or from time to time for shorter periods, on commercially reasonable terms, giving such concessions of rental and making such special repairs, alterations, improvements, additions, decorations and paintings for any new tenant as Landlord, in its sole and absolute discretion, may determinedeem advisable. If Landlord terminates this Lease pursuant to this Section 20, but Landlord shall have the right, at any time, at its option, to require Tenant to pay to Landlord, on demand, as liquidated and agreed final damages in lieu of Tenant’s liability for damages hereunder, the rental and all other charges which would have been payable from the date of such demand to the date when this Lease would have expired if it had not been terminated, minus the fair rental value of the Demised Premises for the same Upon payment of such liquidated and agreed final damages, Tenant shall be released from all further liability under this Lease with respect to the period after the date of such demand. For purposes of this Section 20, the term rental shall include fixed monthly rental, additional rental and all other charges to be paid by Tenant under this Lease. All rights and remedies of Landlord under this Lease shall be cumulative and shall not be liable for, nor exclusive of any other rights and remedies provided to Landlord under applicable law. Landlord’s exercise of any such right or remedy shall Tenant's obligations be diminished by reason of, not prevent the concurrent or subsequent exercise of any other right or remedy. Landlord's ’s delay or failure to relet the Premises exercise or collect enforce any rent due upon of Landlord’s rights or remedies or Tenant’s obligations shall not constitute a waiver of any such relettingrights, remedies or obligations. Whether or not In no event shall Tenant have any liability under this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rentother indirect losses or consequential damages.
C. In the event of any action or proceeding brought by either party against the other under this Lease, Additional Rent or damages which may the prevailing party shall be due or sustained prior entitled to such default, all costs, recover from the other party the fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and attorneys in renting such action or proceeding in such amount as the Premises court may judge to others from time to time. Tenant shall also be liable reasonable for additional damages which at Landlord's election shall be either:such attorneys’ fees.
D. An Event of Bankruptcy is: (a) Tenant’s becoming insolvent, as that term is defined in Title 11 of the United States Code (the “Bankruptcy Code”), or under the insolvency laws of any state (the “Insolvency Laws”); (b) appointment of a receiver or custodian for any property of Tenant, or the institution of a foreclosure or attachment action upon any property of Tenant; (c) filing of a voluntary petition by Tenant under the provisions of the Bankruptcy Code or Insolvency Laws; (d) filing of an involuntary petition against Tenant as the subject debtor under the Bankruptcy Code or Insolvency Laws, which either (1) is not dismissed within ninety (90) days after filing, or (2) results in the issuance of an order for relief against the debtor; (e) Tenant’s making or consenting to an assignment for the benefit of creditors or a composition of creditors; (f) a material and adverse change in the financial condition or status of Tenant; or (g) an admission by Tenant of its inability to pay debts as they become due.
E. Upon occurrence of an Event of Bankruptcy, Landlord shall have all rights and remedies available pursuant to this Section 20; provided, however, that while a case (the “Case”) in which Tenant is the subject debtor under the Bankruptcy Code is pending, Landlord’s right to terminate this Lease shall be subject, to the extent required by the Bankruptcy Code, to any rights of Tenant or its trustee in bankruptcy (collectively, “Trustee”) to assume or assign this Lease pursuant to the Bankruptcy Code. Trustee shall not have the right to assume or assign this Lease unless Trustee promptly (a) cures all Event of Defaults under this Lease, (b) compensates Landlord for all damages incurred as a result of such Event of Defaults, (c) provides adequate assurance of future performance on the part of Tenant as debtor in possession or Tenant’s assignee, and (d) complies with all other requirements of the Bankruptcy Code. If Trustee fails to assume or assign this Lease in accordance with the requirements of the Bankruptcy Code within sixty (60) days after the initiation of the Case, then Trustee shall be deemed to have rejected this Lease. Adequate assurance of future performance shall require that, at a minimum, all of the following minimum criteria be met: (1) Tenant’s gross income (as defined by generally accepted accounting principles) during the thirty (30) days preceding the filing of the Case must be greater than ten (10) times the next installment of Monthly Base Rent; (2) Both the average and median of Tenant’s monthly gross income (as defined by generally accepted accounting principles) during the seven (7) months preceding the filing of the Case must be greater than ten (10) times the next installment of the Monthly Base Rent; (3) Trustee must pay its estimated pro rata share of the cost of all services performed or provided by Landlord (whether directly or through agents or contractors and whether or not previously included as part of the Base Rent) in advance of the performance or provision of such services; (4) Trustee must agree that Tenant’s business shall be conducted in a first-class manner, and that no liquidating sale, auction or other non-first-class business operation shall be conducted in the Demised Premises; (5) Trustee must agree that the use of the Demised Premises as stated in this Lease shall remain unchanged and that no prohibited use shall be permitted; (6) Trustee must agree that the assumption or assignment of this Lease shall not violate or affect the rights of other tenants in the Building and the International Center; (7) Trustee must pay at the time the next monthly installment of the Base Rent is due, in addition to such installment, an amount equal to the installments of Monthly Base RentRent due for the next six (6) months thereafter, Additional Rent and other amounts due such amount to be held as a security deposit; (8) Trustee must agree to pay, at any time Landlord which would have become due during the remainder of the Lease Termdraws on such security deposit, less the amount of rental, if any, which Landlord receives during necessary to restore such period from others security deposit to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, original amount; and (ii9) All assurances of future performance specified in the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall Bankruptcy Code must be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeprovided.
Appears in 1 contract
Samples: Lease Agreement (Intelsat S.A.)
Default of Tenant. 21.1 Each The following events shall be a default by Tenant (a "Default") under this Lease:
(1) Failure of Tenant to pay Rent as and when due, if the following shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within continues for five (5) business days after notice from Landlord that such payment has not been made specifying the failure.
("Landlord Notice"2) Failure of Tenant to comply with or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or conditionobligation of Tenant under this Lease, which violation or other than (i) those concerning the payment of Rent, if the failure continues for a period of thirty (30) days after notice thereof from LandlordLandlord to Tenant specifying the failure; provided, however, that if the failure on the part of Tenant is not capable of being cured within such 30-day period but Tenant expeditiously commences to cure same and diligently proceeds with such cure, Tenant’s time to cure such failure shall be extended for the time necessary to cure same, but in no event longer than ninety (90) days, inclusive of the original 30-day period, (ii) those set forth in any of Sections 8.B., 17, 21, 22, 26, 35, 36, 37 and 38 hereof, as to which a specific timeframe for the performance of such covenant or obligation is set forth therein, and (iii) any Default arising under subsections (3), (4), (5) or (6) of this Section 19.A.
(3) If Tenant, any guarantor of Tenant's performance hereunder (a "Guarantor") or, if Tenant is a partnership, any partner of Tenant ("Partner"), shall file a voluntary petition in bankruptcy or insolvency, shall be adjudicated bankrupt or insolvent or shall file a petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future federal, state or other law, or if such violation shall make an assignment for the benefit of creditors, or failure is remediable but is shall seek or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or of any Guarantor or Partner or of all or any part of the property of Tenant or of such a nature that it cannot be remedied Guarantor or Partner.
(4) If, within such thirty (30) day perioddays after the commencement of any proceeding against Tenant or a Guarantor or Partner, then for whether by the filing of a petition or otherwise, seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future applicable federal, state or other law, such longer period proceeding shall not have been dismissed or if, within thirty (not to exceed ninety (9030) days subject to Force Majeure ) as may reasonably be requiredafter the appointment of any trustee, provided that receiver or liquidator of Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation any Guarantor or Partner, or of all or any part of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner property of Tenant (a "General or of any Guarantor or Partner") , without the acquiescence of such individual or entity, such appointment shall not have been vacated or otherwise discharged, or if any Guarantor; execution or (f) Tenant's dissolution attachment shall have been issued against the property of Tenant or liquidationof any Guarantor or Partner, pursuant to which the Premises shall be taken or occupied or attempted to be taken or occupied.
21.2 (5) If there shall be an Event of DefaultTenant vacates, including an Event of Default abandons or ceases to carry on its ordinary activities in the Premises prior to the Rent Commencement Lease Expiration Date, then with or without an intention of paying Rent; provided, however, that if (i) Tenant gives Landlord at least thirty (30) days prior written notice that it intends to vacate the Premises, (ii) Tenant pays the full amount of all Rent when due under this Lease while the Premises are vacant, and (iii) Tenant leaves the Premises in a condition reasonably satisfactory to Landlord and continues to maintain the Premises, in the condition required by this Lease throughout the remainder of the Term, then, and in such event only, Tenant shall not be deemed to be in Default under this Section 19.A.(6) and Landlord shall have the right, at its sole optionexercisable by sending written notice to Tenant, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession sublet from Tenant for the balance of the Premises. The provisions Term of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession Lease all of the Premises under and by virtue of the laws of the Commonwealth of Virginiaat Tenant’s then rental rate hereunder, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects as to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations portion of the Premises) , which rights of Landlord as Landlord, to subletting and termination shall be exercisable by Landlord in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:.
(a6) an amount equal Failure of Tenant to comply with or perform any covenant or obligation under Section 8.B., 17, 21, 22, 26, 35, 36, 37 or 38 hereof within the Base Rent, Additional Rent and other amounts due Landlord which would have become due during specific timeframe for the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure performance of such other person to perform any of its obligations), which damages shall be computed and payable covenant or obligation set forth in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this applicable Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
Appears in 1 contract
Samples: Lease Agreement (MCG Capital Corp)
Default of Tenant. 21.1 Each of the following If Tenant shall constitute an Event of Default: (a) Tenant's failure fail to make pay when due in the manner provided in Section 4(b) hereof any payment monthly installment of the Base Rent, Additional Rent or any other sum charge or payment required of Tenant hereunder (i) within five any such charge or payment being conclusively deemed to be additional rent payable hereunder), and such default continues for ten (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after such payment's due date; Landlord gives Tenant a written notice specifying the failure, or (b) Tenant's failure violate or fail to take possession perform any of the Premises within sixty (60) days of the Lease Commencement Date; (c) other conditions, covenants, or agreements herein made by Tenant's , and such violation or failure to perform or observe any other covenant or condition, which violation or failure continues shall continue for a period of thirty (30) days after written notice thereof from to Tenant by Landlord, or if plus such additional period of time as may be reasonably necessary to cure such violation or failure is remediable but is of such a nature that it cannot be remedied failure, provided Tenant commences the cure within such thirty the 30-day period and prosecutes the same to completion with due diligence, or (30c) day periodvacate or abandon the demised premises, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation in any of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the rightsaid events this Lease shall, at its sole optionthe option of Landlord, to cease and terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, quit (any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, ) and Landlord may proceed to recover possession of the Premises under and by virtue of the provisions of the laws of the Commonwealth State of VirginiaMaryland, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right Lease, the obligations herein contained on the part of possession, then everything contained in this Lease Landlord to be done and performed by Landlord shall cease, cease without prejudice; provided, however, to Landlord's that Landlord shall retain the right to recover from Tenant all rent rental and other sums due under charges accrued up to the terms and conditions time of such termination, or recovery of possession by Landlord, whichever is later. Should this Lease be terminated before the expiration of the term of this Lease by reason of Tenant's default as hereinabove provided, or if Tenant shall abandon or vacate the demised premises before the expiration or termination of the term of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not the demised premises may be obligated to, relet the Premises or any part thereof, alone or together with other premisesby Landlord, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of as Landlord is able to obtain, and, if the Premises) as Landlord, in its sole discretion, may determine, but Landlord full rental hereinabove provided shall not be liable for, nor shall Tenant's obligations be diminished realized by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional all damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined sustained by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord including, without limitation, deficiency in a lump sum on demand. For purpose of this Sectionrent and all other charges due hereunder, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.reasonable
Appears in 1 contract
Samples: Office Lease (Radio One Inc)
Default of Tenant. 21.1 Each of (a).(I) If Tenant shall default in its obligations to pay the following shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rent, Annual Fixed Rent or Additional Rent or any other sum charges or amounts under this Lease when due or shall default in complying with its obligations under Sections 4.4 or 6.1.11 of this Lease and if any such default shall continue for ten (i) within five (510) days after written notice from Landlord that designating such payment has not been made ("Landlord Notice") default, or (iiII) if Tenant has received three (3) such Landlord Notices during such Lease Year as promptly as possible but in any event within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after written, notice thereof from Landlord, Landlord to Tenant specifying any default or defaults other than those set forth in clause (I) Tenant has not cured the default or defaults so specified; or (b) if such violation any assignment shall be made by Tenant for the benefit of creditors; or failure is remediable but is (c) if Tenant’s leasehold interest shall be taken on execution; of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) if a lien or other involuntary encumbrance shall be filed against Tenant's abandonment ’s leasehold interest or vacation of the PremisesTenant’s other property, including said leasehold interest, and shall not be discharged within ten (10) days thereafter; or (e) if a petition shall be filed by Tenant for liquidation, or for reorganization or an Event arrangement under any provision of Bankruptcy any bankruptcy law or code as specified then in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantorforce and effect; or (f) if an involuntary petition under any of the provisions of any bankruptcy law or code shall be filed against Tenant and such involuntary petition shall not be dismissed within thirty (30) days thereafter; or (g) if a custodian or similar agent shall be authorized or appointed to take charge of all or substantially all of the assets of Tenant's ; or (h) if Tenant dissolves or shall be dissolved or shall liquidate or shall adopt any plan or commence any proceeding, the result of which is intended to include dissolution or liquidation.
21.2 If there ; or (i) if any order shall be an Event entered in any proceeding by or against Tenant decreeing or permitting the dissolution of DefaultTenant or the winding up of its affairs; or (j) if Tenant shall fail to pay any installment of Annual Fixed Rent or Additional Rent when due, including an Event Tenant shall cure such default within the grace period provided in clause (a) (I) above (or with Landlord’s approval after the expiration of such grace period) and Tenant shall, within the next year following the date such initial defaulted payment was first due, fail more than twice to pay any installment of Annual Fixed Rent or Additional Rent when due, then, and in any of such cases indicated in clauses (a) through (j) hereof (collectively and individually, a “Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate of Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated”), Landlord may, but shall in addition to and not be obligated toin derogation of any remedies for any preceding breach of covenant, relet the Premises immediately or at any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure time thereafter give notice to relet the Premises or collect any rent due upon such reletting. Whether or not Tenant terminating this Lease is terminatedand the term hereof, which notice shall specify the date of termination, whereupon on the date so specified, the term of this Lease and all of Tenant’s rights and privileges under this Lease shall expire and terminate but Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causehereinafter provided.
Appears in 1 contract
Default of Tenant. 21.1 Each of If the following Tenant shall constitute an Event of Default: (a) Tenant's failure fail to make any payment of the Base Rent, Additional Rent or any other sum rent within ten (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after Xxxxxx has received written notice of such payment's due date; (b) Tenant's failure default or if Tenant shall fail to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to keep and perform or observe any other covenant or condition, which violation or failure continues of this Lease and shall continue in default for a period of thirty (30) days after Xxxxxx has received written notice thereof of such default and demand of performance from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession declare the term ended and take possession of enter upon the Premisespremises and expel Tenant therefrom without prejudice to other remedies available to Landlord. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by No such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall ceasebar Landlord from the recovery of damages [or the breach of any of the covenants hereof by Tenant, without prejudiceand, however, to Landlord's right to recover from Tenant all shall remain liable for the payment of rent and other sums due charges under the terms Lease, including brokerage commissions and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet expenses to prepare the Premises or any part thereoffor re-rental, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations all costs of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet maintaining the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminateduntil a new Tenant commences payment of rent, and thereafter, Tenant nevertheless shall remain liable for any Base Rentdeficiencies after application of rent payments received by Landlord, Additional Rent or damages but Tenant shall not be entitled to excess payments received by Landlord, if any. Provided, however, if any default shall occur (other than in the payment of rent) which may cannot with diligence be due or sustained cured within a period of thirty (30) days and Tenant, prior to the expiration of thirty (30) days from and after the giving of notice as aforesaid, commences to eliminate such defaultdefault and proceeds diligently to take steps to cure the same, all costsLandlord shall not have the right to declare the term ended by reason thereof. In addition to Xxxxxxxx's rights hereunder, fees and expenses in the event Landlord does not receive rent payments within ten (including without limitation reasonable attorneys' fees10) days of the date required by this Lease, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) pay Landlord an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder 5% of the Lease Termpayment past due, less as additional rent, together with the amount next payment of rental, if any, which rent by Xxxxxx. Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed entitled to recover from Tenant other all reasonable costs and payable legal fees incurred in monthly installments, in advance, on the first day of each calendar month following connection with any default by Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
Appears in 1 contract
Default of Tenant. 21.1 Each If Tenant shall fail to pay any monthly installment of rent as aforesaid (although no legal or formal demand has been made therefor), or shall violate or fail to perform any of the following shall constitute an Event of Default: (a) other conditions, covenants or agreements herein made by Tenant's , and such failure to make any payment of the Base Rent, Additional Rent pay rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues shall continue for a period of thirty ten (3010) days after written notice thereof from to Tenant by Landlord, or if such violation or failure is remediable but is then and in any of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the rightsaid events this Lease shall, at its sole optionthe option of Landlord, to cease and terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit quit, or of Landlord's ’s intention to re-enter the Premises enter, being hereby expressly waived. If necessary, and Landlord may proceed to recover possession of the Premises under and by virtue of the provisions of the laws of the Commonwealth State of VirginiaMaryland, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right Lease, everything herein contained on the part of possession, then everything contained in this Lease Landlord to be done and performed by Landlord shall cease, cease without prejudice, however, to Landlord's the right of Landlord to recover from Tenant all rent and other sums due under rental accrued up to the terms and conditions time of termination or recovery of possession by Landlord, whichever is later. Should this Lease by reason of Tenant’s default as hereinabove provided, or if Tenant shall abandon or vacate the Demised Premises before the expiration or termination of the Term of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, the Demised premises may be relet by Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of as are not unreasonable under the Premises) as Landlordcircumstances and, in its sole discretion, may determine, but Landlord if the full rental hereinabove provided shall not be liable for, nor shall Tenant's obligations be diminished realized by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain be liable for any Base Rentall damages sustained by Landlord, Additional Rent or damages which may be due or sustained prior to such defaultincluding, all costswithout limitation, fees and expenses (including without limitation deficiency in rent, reasonable attorneys' ’ fees, brokerage fees, and expenses incurred in of placing the Demised Premises in first class rentable condition and tenant finish necessitated to obtain the new tenant) incurred condition. Any damage or loss of rental sustained by Landlord may be recovered by Landlord, at Landlord’s option, at the time of the reletting, or in pursuit of its remedies and in renting the Premises to others separate actions, from time to time. Tenant , as said damage shall also be liable for additional damages which have been made more easily ascertainable by successive relettings, or, at Landlord's election shall be either:
(a) an amount equal to the Base Rent’s option, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing deferred until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Termterm of this Lease, in which event the cause of action shall not be deemed not to have accrued until the date of expiration of said term. If Landlord should commence any summary proceeding for non-payment of rent by Tenant, Tenant shall not interpose any counterclaim of any nature or description in any such proceeding. The provisions contained in this paragraph shall be in addition to and shall not prevent the enforcement of any claim Landlord may have against Tenant for anticipatory breach of the unexpired term of this Lease. In the event that Tenant continues to occupy the Demised Premises after the expiration of the Lease Term: or
(b) an amount equal to term of this Lease, with the Present Value Damages. "Present Value Damages" express or implied consent of Landlord, such tenancy shall be an amount equal to the present value (as from month-to-month and shall not be renewal of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation term of this Lease or tenancy from year-to year. All rights and remedies of Landlord under any present or future law, including any such right which Tenant would otherwise have if Tenant this Lease shall be dispossessed for cumulative and shall not be exclusive of any causeother rights and remedies provided to Landlord under applicable law.
Appears in 1 contract
Samples: Lease Agreement (Tvi Corp)
Default of Tenant. 21.1 Each of If at any time the following shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rent, Additional Rent rental or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or conditionmoney payments here under, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone shall remain unpaid for a period of ten (10) days after the same becomes due, Landlord shall give written notice to Tenant of such default and intent to terminate the Lease in ten (10) days and shall allow Tenant to cure such default by making the rental or any money payments due together with a late charge of $500.00 dollars per each month's (or portion of a month) delinquency, plus the money due and any attorneys' fees detailed in Section 18. If the default is not corrected after this period, Landlord has all remedies available at law including the lockout provisions of ARS ss.33-361. If at any time Tenant is otherwise in breach of the Lease, Landlord shall give notice of such default to Tenant. If Tenant shall fail to pay the rental or any money payment plus the late charge, or fail to fulfill or perform any of the other premisesagreements and provisions hereof obligatory upon Tenant, and if said nonpayment, nonfulfillment or nonperformance shall continue for such rent a period of ten (10) days after written notice thereof, Tenant shall be considered in default hereunder, and upon such terms default it shall be lawful and conditions (which optional for Landlord to declare a termination of this Lease and to reenter upon said premises and to again repossess and enjoy the same and all improvements thereon, and thereupon this Lease shall terminate; and in addition thereto, upon such default Landlord shall be entitled to whatever remedies Landlord may include concessions have at law for the collection of any unpaid rental hereunder or free rent and alterations for damages hereunder or for damages that Landlord may have sustained on account of Tenant's nonfulfillment or nonperformance of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises agreements and provisions hereof or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which other sums that may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal according to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeterms hereof.
Appears in 1 contract
Samples: Lease Agreement (Titan Motorcycle Co of America Inc)
Default of Tenant. 21.1 Each 22.1 If Tenant should fail to pay any part of the following shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rentrentals herein provided, Additional Rent or any other sum (i) within five (5) days notice from required by this Lease to be paid to Landlord that such payment has not been made ("Landlord Notice") at the time or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of in the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or conditionmanner provided herein, which violation or failure continues for a period of thirty twenty (3020) days after receipt by Tenant of written notice thereof from Landlord, or if default should be made in any of the other covenants, terms or provisions to be performed by Tenant hereunder and such violation or failure is remediable but is default should continue for a period of such a nature that it cannot be remedied within such thirty forty-five (30) day period, then for such longer period (not to exceed ninety (9045) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation following receipt of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect written notice thereof from Landlord to Tenant, or should Tenant's interest herein be terminated or assigned by operation of law or otherwise, including, without limitation, the filing of a petition by or against Tenant (or any general partner member of Tenant (if Tenant is a "General Partner"partnership or joint venture) under any insolvency or any Guarantor; bankruptcy act, or (f) Tenant's dissolution should Tenant make a general assignment for the benefit of creditors, or liquidation.
21.2 If there shall be an Event of Defaultif Tenant should become insolvent, including an Event of Default prior to or if Tenant should vacate or abandon the Rent Commencement DatePremises, then Landlord shall have all rights and remedies it may have hereunder or at law or in equity.
22.2 In the right, at its sole option, event Landlord shall fail to terminate this Lease. In addition, with receive any installment of rent or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by sum due hereunder within ten (10) days after such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession payment is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminateddue, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior pay to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred Landlord a late charge in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to twenty percent (20%) of such payment; and the Base Rentfailure to pay such sums due and the late charge as described herein, Additional Rent within twenty (20) days after written demand therefor shall be an event of default hereunder. The provision for such late charge shall be in addition to all of Landlord's other rights and other amounts due Landlord which would have become due during the remainder remedies hereunder or at law, and shall not be construed as liquidated damages or as limiting Landlord's remedies in any manner.
22.3 No act or conduct of Landlord, whether consisting of the Lease Termacceptance of the keys to the Premises, less or otherwise, shall be deemed to be or constitute an acceptance of the amount surrender of rental, if any, which Landlord receives during such period from others to whom the Premises may by Landlord prior to the expiration of the term hereof, and such acceptance by Landlord of surrender by Tenant shall only be rented (other than any Additional Rent payable effected, and must be evidenced, by written acknowledgment of acceptance of surrender signed by Landlord. In the event the Premises are relet at a rental which exceeds that owing from Tenant herein, Tenant expressly agrees that Tenant, its successors, assigns and representatives have no claim to or interest in the said profit, and that the said profit is properly owing solely to Landlord as Landlord's agreed, stated and liquidated fees, costs, expenses and compensation incurred or owing as a result of any failure Landlord's efforts in connection with the reletting of such other person the leased premises to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following mitigate Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date a result of Tenant's default) , but do not constitute Landlord's liquidated damages of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's whole default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
Appears in 1 contract
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: (a) If the Tenant defaults in fulfilling any of the Tenant's failure to make any obligations under this Lease, other than the covenants for the payment of the Base Rent, Additional Rent or any other sum if the Premises become vacant or deserted or if the Premises arc damaged by reason of negligent or willful acts of the Tenant or the Tenant's employees, agents, licensees or invitees, the Landlord may serve written notice upon the Tenant specifying the nature of said default. Upon the expiration of ten (I 0) days following the giving of such notice, if the Tenant
(i) within five (5) days notice from Landlord that has failed to cure such payment has not been made ("Landlord Notice") or default or
(ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession in the case of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, a default which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a by its nature that it cannot be remedied completely cured within such thirty said ten (3010) day period, does not deliver to the Landlord assurances reasonably satisfactory to the Landlord that the Tenant will promptly cure such default and if the Tenant does not thereafter within a reasonable time period cure such default, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as the Landlord may reasonably be requiredserve a written notice of termination of this Lease upon Tenant, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) this Lease shall terminate on the Tenant's abandonment receipt of such notice, and the Tenant shall then quit and surrender the Premises to the Landlord but the Tenant shall remain liable as herein provided until Landlord either occupies the Premises or vacation of lets the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect Premises to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidationthird party. Landlord shall use its best efforts to relet the Premises promptly.
21.2 If there shall be an Event (b) The First time during any twelve (12) month period that the Tenant defaults in the' payment of Default, including an Event of Default prior to Rent the Rent Commencement Date, then Landlord shall have provide Tenant ten (I 0) days' written notice of such default. Unless Landlord receives such Rent payment within ten (1O) days, the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, apply the Deposit to Landlord's right satisfy the delinquent Rent obligation- If the remaining Deposit is insufficient to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminatedsatisfy such obligation in full, Landlord may, but shall not be obligated toupon ten (10) days' prior written notice, relet give notice of default under this Lease and the Tenant shall, at Landlord's election. quit and surrender the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of to the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rentas hereinafter provided. If Tenant has cured the Rent delinquency, Additional or if the delinquency has been cured by application of the Deposit, but Tenant is again delinquent in the payment of Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.twelve
Appears in 1 contract
Default of Tenant. 21.1 Each The Landlord may give the Tenant ten days' of the Landlord's intention to terminate the Lease in the event of any of the following shall constitute an Event of Default: circumstances:
(a) Tenant's failure to make any If the Tenant is in default in the payment of the Base Rentbasic monthly rental, Additional Rent in the payment of the additional rental or in the performance of any covenant of this Lease, other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; than those specified in Subparagraphs (b) Tenant's failure to take possession of the Premises through (d) below, and such default is not cured within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) fifteen days after written notice thereof from is given to the Tenant by the Landlord, ; or if such violation or failure is remediable but default is of such a nature that it cannot be remedied cured completely within fifteen days, if the Tenant has not promptly commenced curing such default within such fifteen-day period and thereafter proceeded with reasonable diligence and in good faith to remedy such default.
(b) If the Tenant is adjudicated a bankrupt, makes a general assignment for the benefit of creditors, or takes the benefit of any insolvency act, or if a receiver or trustee in bankruptcy is appointed for the Tenant's property and such appointment is not vacated within ninety days.
(c) If the premises becomes vacant or deserted for a period of thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; days.
(d) Tenant's abandonment If this Lease is assigned or vacation the premises sublet other than in accordance with the terms hereof. If the Landlord shall give the ten days' notice of intention to terminate provided above, unless the condition giving rise thereto is cured within such period (in which case this Lease shall not terminate), then, at the expiration of such period, this Lease shall terminate as completely as if that were the date herein definitely fixed for the expiration of the Premises; (e) an Event term of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the PremisesTenant shall then quit and surrender the premises to Landlord. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises obligations for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose basic monthly rental and the additional rental under this Lease despite such termination of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeLease.
Appears in 1 contract
Default of Tenant. 21.1 Each If Tenant shall fail to pay any monthly installment of the following rent when due as aforesaid and such failure shall constitute an Event continue for a period of Default: ten (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after such payment's due date; (b) Tenant's failure written notice thereof to take possession the Tenant by Landlord, or shall violate or fail to perform any of the Premises within sixty (60) days of the Lease Commencement Date; (c) other conditions, covenants or agreements herein made by Tenant's , and such violation or failure to perform or observe any other covenant or condition, which violation or failure continues shall continue for a period of thirty (30) days after written notice thereof from Landlord, or if such violation or failure to the Tenant by Landlord (unless Tenant has commenced and is remediable but is diligently pursuing completion of such a nature that it cannot be remedied cure within such thirty (the 30) -day period, then for Tenant shall have such longer period (not time as is reasonably necessary to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues complete such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Datecure), then Landlord shall have the rightand in any of said events this Lease shall, at its sole optionthe option of Landlord, to cease and terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's ’s intention to re-enter the Premises being hereby expressly waived. If necessary, and Landlord may proceed to recover possession of the Premises under and by virtue of the provisions of the laws of the Commonwealth State of Virginia, Virginia or by such other legal proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right Lease, everything herein contained on the part of possession, then everything contained in this Lease Landlord to be done and performed by Landlord shall cease, cease without prejudice, however, to Landlord's the right of Landlord to recover from Tenant all rent and other sums due under rental accrued up to the terms and conditions time of termination of recovery of possession by Landlord, whichever is later. Should this Lease be terminated before the expiration of the term of this Lease by reason of Tenant’s default as hereinabove provided, or if Tenant shall abandon or vacate the demised Premises before the expiration or termination of the term of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, the demised Premises may be relet by Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms as are not unreasonable under the circumstance, and conditions (which may include concessions or free rent and alterations of if the Premises) as Landlord, in its sole discretion, may determine, but Landlord full rental hereinabove provided shall not be liable for, nor shall Tenant's obligations be diminished realized by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain be liable for any Base Rentall damages sustained by Landlord, Additional Rent or damages which may be due or sustained prior to such defaultincluding, all costswithout limitation, fees and expenses (including without limitation deficiency in rent, reasonable attorneys' attorney’s fees, brokerage fees, and expenses incurred in of placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred condition. Any damage or loss of rental sustained by Landlord may be recovered by Landlord, at Tenant’s option, at the time of the re-letting, or in pursuit of its remedies and in renting the Premises to others separate actions, from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the said expiration of the Lease Termterm of this Lease, in which event the cause of action shall not be deemed not to have accrued until the date of expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.said Initials TD / Illegible
Appears in 1 contract
Samples: Lease Agreement (Website Pros Inc)
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: (a) Tenant's failure 11.01 In addition to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure all rights under law and equity available to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, immediate right to terminate declare this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's Lease terminated and shall have the immediate right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may remove all persons and property from the Leased Premises and such property may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate removed and stored in a public warehouse or elsewhere at a cost, and for the account of the Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, evidence of notice or resort to Landlord's right to recover from Tenant all rent legal process and other sums due under the terms and conditions without being deemed guilty of this Lease. Whether trespass or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain becoming liable for any Base Rent, Additional Rent loss or damages which may be due or sustained prior to such occasioned thereby.
11.02 Upon a declaration of default, as set forth above, the Landlord shall have the right to accelerate the rental payments due hereunder, so that all costs, unpaid rents shall become immediately due and payable.
11.03 The rights set forth above are collective in nature and are not mutually exclusive of any other remedy contained herein or at law.
11.04 Landlord shall be entitled to collect from the Tenant reasonable attorney fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred costs in placing any litigation enforcing the Premises in rentable condition terms and tenant finish necessitated to obtain the new tenant) incurred by provisions of this Lease. Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal entitled to collect reasonable attorney fees and costs from Tenant in connection with any litigation in which the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable is named a party as a result of any some action or inaction of the Tenant. In the event of a default by the Landlord, the Tenant shall have all remedies available under law or equity.
11.05 Prior to default occurring under the terms of this Lease, the non- defaulting party must give a written notice of the right to cure the default to the defaulting party. Said notice must provide the nature of the default, the action necessary to cure the default, and ten (10) days to cure same. If the default, other than monetary default, is of a nature that cannot be cured within ten (10) days, a reasonable period of time shall be allowed to cure said default if the defaulting party, with all due diligence, proceeds to cure same.
11.06 The failure on the part of such other person the Landlord to perform re-enter or repossess the Leased Premises, or to exercise any of its obligations)rights hereunder upon any default, which damages shall not be deemed a waiver of any subsequent default or defaults. All of Landlord's rights shall be computed cumulative and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in preclude Landlord from exercising any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord other rights which he may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
Appears in 1 contract
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: a default by Tenant under this Lease:
(a) Tenant's Tenant fails to pay any amount required under this Lease as and when the same becomes due and said failure to make any payment of the Base Rent, Additional Rent or any other sum is not cured within ten (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after such payment's due datewritten notice thereof from Landlord; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure Tenant fails to perform or observe any other covenant or term, condition, which violation or obligation under this Lease and said failure continues for a period of is not cured within thirty (30) days after written notice thereof from Landlord, or if . Upon the occurrence of any such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to default by Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, option to pursue any one or more of the following remedies without any additional notice or demand whatsoever: terminate this Lease. In addition, with or in which event Tenant shall immediately surrender the Leased Premises to Landlord, and if Tenant fails to do so Landlord may, without terminating this Lease, prejudice to any other remedy which Landlord may re-enterhave for omission or arrearages in Rent, terminate Tenant's right of possession enter upon and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, Leased Premises and expel or remove Tenant and any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as person who may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under occupying the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Leased Premises or any part thereof, alone without being liable for prosecution or together with other premises, for such rent any claim of damages therefor; or enter upon and upon such terms and conditions (which may include concessions or free rent and alterations take possession of the PremisesLeased Premises and expel or remove Tenant and any other person who may be occupying the Leased Premises or any part thereof without being liable for prosecution or any claim for damages therefor, with or without having terminated this Lease. In addition to the other remedies provided in this Lease, and anything contained herein to the contrary notwithstanding, Landlord shall be entitled to restrain any default or violation, or attempted or threatened default or violation of any of the terms, covenants, conditions or other provisions of this Lease, by injunction, order of specific performance or other appropriate equitable relief. The remedies provided to Landlord hereunder are intended to be cumulative, and may be exercised by Landlord in any order, or simultaneously, without such exercise being a waiver by Landlord of its right to exercise any other remedy granted to Landlord hereunder (or under applicable Laws) as Landlord, in its sole discretion, may determine, but with respect to the same default. Exercise by Landlord of any one or more remedies hereunder granted or otherwise available shall not be liable for, nor shall Tenant's obligations deemed to be diminished by reason of, Landlord's failure to relet the Premises an acceptance or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder surrender of the Lease TermLeased Premises by Xxxxxx, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), whether by agreement or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any it being understood that such right which Tenant would otherwise have if Tenant shall surrender can be dispossessed for any causeaffected only by the written agreement of Landlord and Xxxxxx.
Appears in 1 contract
Samples: Lease Agreement
Default of Tenant. 21.1 Each If Tenant shall fail to pay any monthly installment of the following rent as aforesaid and, if such violation or failure shall constitute an Event continue for a period of Default: ten (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after such payment's due date; (b) Tenant's failure written notice thereof to take possession Tenant by Landlord, or if Tenant shall violate or fail to perform any of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's other conditions, covenants or agreements herein made by Tenant and if such violation or failure to perform or observe any other covenant or condition, which violation or failure continues shall continue for a period of thirty (30) days after written notice thereof from to Tenant by Landlord, or if Tenant shall abandon or vacate the Demised Premises before the Expiration Date of this Lease, then and in any of said events Landlord shall have the right, at its election, then or at any time thereafter while such violation or failure is remediable but is event of default shall continue, either:
(i) To give Tenant written notice of its intent to terminate this Lease on the date of such a nature that it cannotice or, on any later date specified therein, and on the date specified in such notice Tenant's right to possession of the Demised Premises shall cease and this Lease shallthereupon be terminated; or
(ii) With not be remedied within such thirty less than twenty-four (3024) day periodhours prior written notice, then to reenter and take possession of the Demised Premises, or any part thereof, and repossess the same as of Landlord's former estate and expel Tenant and those claiming through or under Tenant and remove the effects of both or either, by summary proceedings, or by action at law or in equity or otherwise, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of rent or breach of covenant. If Landlord elects to reenter under this clause, Landlord may terminate this Lease, or, from time to time, without terminating this Lease, may relet the Demised Premises, or any part thereof, as agent for Tenant for such longer period (not term or terms and at such rental or rentals and upon such other terms and conditions as Landlord may deem advisable, with the right to exceed ninety (90) days subject make alterations and repairs to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues the Demised Premises. No such remedy to completion; (d) Tenant's abandonment reentry or vacation taking of possession of the Demised Premises by Landlord shall be construed as an election on Landlord's part to terminate this Lease unless a written notice of such intention is given to Tenant under clause (i), above, or unless the termination thereof be decreed by a court of competent- jurisdiction at the instance of Landlord. Tenant waives any right to the service of any notice of Landlord's intention to reenter provided for by any present or future law. If Landlord terminates this Lease pursuant to this Article 21, Tenant shall remain liable (in addition to accrued liabilities) for (i) the (A) rent and all other sums provided for in this Lease until the date this Lease would have expired had such termination not occurred, or (B) any and all expenses incurred by Landlord in reentering the Demised Premises, repossessing the same, making good any default of Tenant, painting, altering or dividing the Demised Premises, putting the same in proper repair, protecting and preserving the same by placing therein watchmen and caretakers, reletting the same (including any and all reasonable attorney's fees and disbursements and brokerage fees incurred in so doing) , and any and all expenses which Landlord may incur during and which result from the occupancy of any new tenant; less (eii) an Event the net proceeds of Bankruptcy as specified in Article XXII any reletting prior to the date when this Lease would have expired if it had not been terminated. Tenant agrees to pay to Landlord the difference between items (i) and (ii) of the foregoing sentence with respect to Tenanteach month during the term of this Lease, at the end of such month. Any suit brought by Landlord to enforce collection of such difference for any general partner one month shall not prejudice Landlord's right to enforce the collection of any difference for any subsequent month. In addition to the foregoing, and without regard to whether this Lease is terminated, Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Defaultpay to Landlord all costs incurred, including an Event reasonable attorney's fees with respect to any successful lawsuit or action taken instituted by Landlord to enforce the provisions of Default prior to the Rent Commencement Date, then this Lease. Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with relet the whole or without terminating any part of the Demised Premises for the whole of the unexpired term of this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginialonger, or by such other proceedingsfrom time to time for shorter periods, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possessionfor any rental , then everything contained in this Lease to be done and performed by Landlord shall ceaseobtainable, without prejudice, however, to Landlord's right to recover from Tenant all giving such concessions of rent and other sums due under the terms making such special repairs, alterations, decorations and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or paintings for any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) new tenant as Landlord, in its sole and absolute discretion, may determine, but deem advisable. Tenant's liability as aforesaid shall survive the institution of summary proceedings and the issuance of any warrant thereunder. Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure under no obligation to relet the Premises or collect any rent due upon such relettingDemised Premises, but agrees to use reasonable efforts to do so. Whether or not If Landlord terminates this Lease is terminatedpursuant to this Article 21, Landlord shall have the right, at any time, at its option, to require Tenant nevertheless shall remain liable to pay to Landlord, on demand, as liquidated and agreed final damages in lieu of Tenant's liability for any Base Rentdamages hereunder, Additional Rent or damages which may be due or sustained prior to such default, the rent and all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord charges which would have become due during been payable from the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure date of such other person demand to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the when this Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s)if it had not been terminated, and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after minus the expiration fair rental value of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Demised Premises for the same period. If the Demised Premises shall have been relet for all or part of the remaining balance of the term by Landlord after a default but before presentation of proof of such liquidated damages, which Present Value Damages the amount of rent reserved upon such reletting, absent proof to the contrary, shall be payable deemed the fair rental value of the Demised Premises for purposes of the foregoing determination of liquidated damages. Upon payment of such liquidated and agreed final damages, Tenant shall be released from all further liability under this Lease with respect to Landlord in a lump sum on the period after the date of such demand. For purpose purposes of this SectionArticle 21, present value the term rent shall include monthly rental, additional rent and all other charges to be paid by Tenant under this Lease. All rights and remedies of Landlord under this Lease shall be computed by discounting at a rate equal cumulative and shall not be exclusive of any other rights and remedies provided to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease Landlord under any present or future applicable law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Century Bancshares Inc)
Default of Tenant. 21.1 Each If TENANT shall fail to pay annual installment or item of rent on the date when the same becomes due or shall violate or fail to perform any of the following shall constitute an Event other conditions, covenants, or provisions of Default: (a) Tenant's failure City of Miami Beach /CAA 10 • this Lease Agreement to make any payment of the Base Rentbe observed and performed by TENANT, Additional Rent or any other sum (i) within five (5) days notice from Landlord that and if such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after written notice thereof from LandlordLANDLORD, or to TENANT, except for failure to pay rent, which shall have a fifteen (15) day period for cure after written notice thereof from LANDLORD, to TENANT, then LANDLORD may at any time terminate this Lease Agreement upon seven (7) days written notice to TENANT; provided, however, that (except as to rent) if the nature of TENANT'S non - compliance is such violation or failure is remediable but is of such a nature that it canmore than thirty (30) days are reasonably required for its cure, then TENANT shall not be remedied deemed in default if TENANT commenced such cure within such thirty (30) day periodperiod and thereafter diligently prosecutes such cure to completion. In the event of termination, then for such longer period (LANDLORD shall also have the right to proceed with any remedy available at law or in equity in the State of Florida. All rights and remedies of LANDLORD under this Lease Agreement shall be cumulative and shall not be exclusive of any other rights and remedies provided to exceed ninety (90) days LANDLORD under applicable law, subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation the limitations of Section 768.28 of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to TenantFlorida Statutes. ARTICLE XXVII WAIVER If, any general partner of Tenant (under the provisions hereof, LANDLORD or TENANT shall institute proceedings and a "General Partner") compromise or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there settlement thereof shall be an Event made, the same shall not constitute a waiver of Defaultany covenant herein contained nor of any of LANDLORD's or TENANT's rights hereunder, including an Event unless expressly stated in such settlement agreement. No waiver by LANDLORD or TENANT of Default prior any provision hereof shall be deemed to the Rent Commencement Datehave been made unless expressed in writing and signed by both parties. No waiver by LANDLORD or TENANT of any breach of covenant, then Landlord shall have the rightcondition, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article agreement herein contained shall operate as a notice to quitwaiver of such covenant, condition, or agreement itself, or of any subsequent breach thereof. No payment by TENANT or receipt by LANDLORD of lesser amount than the monthly installments of rent (or additional rent obligations stipulated herein) nor shall any endorsement or statement on any check or letter accompanying a check for payment of rent (or additional rent obligations as stipulated herein) or any other notice amounts owed to quit LANDLORD be deemed an accord and satisfaction and LANDLORD may accept such check or payment without prejudice to or waiver of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to LandlordLANDLORD's right to recover the balance of such rent (or additional rent obligations as stipulated herein) or other amount owed or to pursue any other remedy provided in this Lease Agreement. No reentry by LANDLORD and no acceptance by LANDLORD of keys from Tenant all rent and other sums due under the terms and conditions TENANT shall be considered an acceptance of a surrender of this LeaseLease Agreement. Whether or not this Lease and/or Tenant's right City of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions Miami Beach /CAA 11 ARTICLE XXVIII ADDITIONAL RENT (which may include concessions or free rent and alterations of the PremisesOPERATING EXPENSES) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal In addition to the Base Rent, TENANT shall also pay the following Additional Rent as provided below: TENANT shall pay One Thousand Three Hundred Twenty Seven Dollars and other amounts due Landlord 94/100 ($ 1,327.94) per month, for its proportionate share of "Operating Expenses" which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable are defined as follows: "Operating Expenses" shall mean expenses incurred as a result of any failure operating, repairing, and maintaining the Common Facilities . (as herein defined) and shall include electrical service, water service, sewer service, storm water costs and janitorial and custodial services to the Building, including the Demised Premises. "Common Facilities" shall mean all Building areas, spaces, equipment, as well as certain services, available for use by or for the benefit of such other person to perform any TENANT and /or its employees, agents, servants, volunteers, customers, guests and/or invitees. Irrespective of its obligations)the items listed above, amount due by TENANT, associated with Common Facilities Operating Expenses, will be determined based on TENANT's pro -rata share of the items, which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration is hereby made a part of the Lease Term, in Agreement. Pro -rata share shall mean the percent which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal Demised Premises bears to the Present Value Damages. "Present Value Damages" shall be an amount equal to total square footage of leasable space within the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same periodBuilding, which Present Value Damages share is hereby agreed to be sixteen percent (16 %). TENANT agrees and understands that the costs incurred for Operating Expenses may increase or decrease and, as such, TENANT's pro -rata share of Operating Expenses shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry increase or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causedecrease accordingly.
Appears in 1 contract
Samples: Lease Agreement
Default of Tenant. 21.1 Each of (i) If Tenant shall default in its obligations to pay the following shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rent, Annual Fixed Rent or Additional Rent or any other sum (i) charges under this Lease within five (5) days notice from Landlord that of the date when due or shall default in complying with its obligations under Subsection 6.1.10 of this Lease and if any such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within default shall continue for five (5) days after such payment's due date; notice pursuant to Section 10.1 thereof from Landlord, or (bii) Tenant's failure to take possession of the Premises if as promptly as possible but in any event within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, Landlord to Tenant specifying any default or defaults other than those set forth in clause (i) Tenant has not cured the default or defaults so specified; or if such violation or failure is remediable but default is of such a nature that it cannot be remedied cured within such thirty (30) days using best efforts, if Tenant does not commence the curing of such default within such thirty-day periodperiod and thereafter diligently and continuously prosecute such cure to completion within such additional time as may be necessary, then for such longer period (not but in no event to exceed ninety sixty (9060) days subject from the date of Landlord’s notice to Force Majeure ) as may reasonably be requiredTenant specifying the default, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (fiii) Tenant's dissolution or liquidation.
21.2 If if there shall be an Event a default of DefaultTenant’s obligations under any lease between Landlord and Tenant for any space in the Building, including an Event which default continues beyond applicable notice and cure periods, then, and in any of such cases indicated in clauses (i), (ii) and (iii) hereof (collectively and individually, a “Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate of Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated”), Landlord may, but shall in addition to and not be obligated toin derogation of any remedies for any preceding breach of covenant, relet the Premises immediately or at any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure time thereafter give notice to relet the Premises or collect any rent due upon such reletting. Whether or not Tenant terminating this Lease is terminatedand the term hereof, which notice shall specify the date of termination, whereupon on the date so specified, the term of this Lease and all of Tenant’s rights and privileges under this Lease shall expire and terminate but Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causehereinafter provided.
Appears in 1 contract
Samples: Lease Agreement (AxoGen, Inc.)
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: (a) Tenant's failure (I) If Tenant shall default in its obligations to make any payment of pay the Base Rent, Annual Fixed Rent or Additional Rent or any other sum (i) within five (5) days notice from Landlord that charges under this Lease when due or shall default in complying with its obligations under Subsection 6.1.11 of this Lease and if any such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within default shall continue for five (5) days after notice from Landlord designating such payment's due date; default, or (bII) Tenant's failure to take possession of the Premises if as promptly as possible but in any event within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, Landlord to Tenant specifying any default or defaults other than those set forth in clause (I) Tenant has not cured the default or defaults so specified; or (b) if such violation any assignment shall be made by Tenant or failure is remediable but is any guarantor of such a nature that it cannot Tenant for the benefit of creditors; or (c) if Tenant's leasehold interest shall be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completiontaken on execution; or (d) if a lien or other involuntary encumbrance shall be filed against Tenant's abandonment leasehold interest or vacation Tenant's other property, including said leasehold interest, or against the property of the Premisesany guarantor of Tenant, and shall not be discharged within ten (10) days thereafter; or (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, if a petition shall be filed by Tenant or any general partner guarantor of Tenant (a "General Partner") for liquidation, or for reorganization or an arrangement under any Guarantorprovision of any bankruptcy law or code as then in force and effect; or (f) if an involuntary petition under any of the provisions of any bankruptcy law or code shall be filed against Tenant or any guarantor of Tenant and such involuntary petition shall not be dismissed within thirty (30) days thereafter; or (g) if a custodian or similar agent shall be authorized or appointed to take charge of all or substantially all of the assets of Tenant or any guarantor of Tenant's ; or (h) if Tenant or any guarantor of Tenant dissolves or shall be dissolved or shall liquidate or shall adopt any plan or commence any proceeding, the result of which is intended to include dissolution or liquidation.
21.2 If there ; or (i) if any order shall be an Event entered in any proceeding by or against Tenant or any guarantor of DefaultTenant decreeing or permitting the dissolution of Tenant or any guarantor of Tenant or the winding up of its affairs; or (j) if Tenant shall fail to pay any installment of Annual Fixed Rent or Additional Rent when due, including an Event Tenant shall cure such default within the grace period provided in clause (a) (I) above (or with Landlord's approval after the expiration of Default prior such grace period) and Tenant shall, within the next year following the date such initial defaulted payment was first due, fail more than once to the pay any installment of Annual Fixed Rent Commencement Dateor Additional Rent when due, then Landlord shall have the rightthen, at its sole optionand in any of such cases indicated in clauses (a) through (j) hereof (collectively and individually, to terminate this Lease. In addition, with or without terminating this Leasea "DEFAULT OF 217 TENANT"), Landlord may re-enterand the agents and servants of Landlord lawfully may, terminate Tenant's right in addition to and not in derogation of possession and take possession any remedies for any preceding breach of the Premises. The provisions of this Article shall operate as covenant, immediately or at any time thereafter mail a notice of termination addressed to quitTenant, any other notice to quit or and repossess the same as of Landlord's intention former estate and expel Tenant and those claiming through or under Tenant and remove its and their effects without being deemed guilty of any manner of trespass and without prejudice to re-enter the Premises being hereby expressly waived. If necessaryany remedies which might otherwise be used for arrears of rent or prior breach of covenant, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms entry or mailing as aforesaid the term of this Lease shall terminate, and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretionwithout notice to Tenant, may determine, but Landlord shall not be liable for, nor shall store Tenant's obligations be diminished by reason ofeffects, Landlord's failure to relet and those of any person claiming through or under Tenant, at the Premises expense and risk of Tenant, and, if Landlord so elects, may sell or collect any rent due upon otherwise dispose of such reletting. Whether effects at public auction or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent private sale or damages which may be due or sustained prior to such default, all costs, fees otherwise and expenses apply the net proceeds (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenantif any) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts payment of all sums due to Landlord which would have become due during the remainder of the Lease Term, less the amount of rentalfrom Tenant, if any, which Landlord receives during such period from others and pay over the balance, if any, to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
Appears in 1 contract
Samples: Lease Agreement (Sonesta International Hotels Corp)
Default of Tenant. 21.1 Each The following events shall be a default ("default") of Tenant under this Lease:
(1) Failure of Tenant to pay any Monthly Base Rent when due and the failure shall continue for a period of ten (10) days after Landlord has given written notice of the following shall constitute an Event failure;
(2) Failure of Default: (a) Tenant's failure Tenant to make any payment of the Base Rent, Additional Rent hereunder when due and the failure continues for ten (10) days after written notice from Landlord to Tenant specifying the failure;
(3) Failure of Tenant to perform or comply with any provision of this Lease to be performed or complied with by Tenant other than provisions for the payment of Monthly Base Rent or Additional Rent and the failure continues for ten (10) days after written notice from Landlord to Tenant specifying the failure. In the event Tenant, acting as expeditiously as possible and in good faith, cannot cure the event of default within said ten (10) day periods then Tenant shall be entitled to a reasonable period of time, time being of the essence and in no event longer than eighty (80) days, to effecuate the cure of such event of default. Notwithstanding the foregoing provisions of Section 23A(3), it shall be a default of Tenant under this Lease if at any time Tenant fails to comply with the insurance requirements imposed upon it under this Lease;
(4) If Tenant shall file a voluntary petition in bankruptcy or insolvency, or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangements composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act or any other sum (i) within five present cr future applicable federal, state or other statute or law, or shall make an assignment for the benefit of creditors or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or of all or any part of Tenant's property;
(5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year If, within five (5) 60 days after the commencement of any proceeding against Tenant, whether by the filing of a petition or otherwise, seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act or any other present or future applicable federal, state or other statute or law, such payment's due date; (b) proceeding shall not have been dismissed, or if, within 60 days after the appointment of any trustee, receiver or liquidator of Tenant, or of all or any part of Tenant's failure properties without the consent or acquiescence of Tenant, such appointment shall not have been vacated or otherwise discharged, or if any execution or attachment shall be issued against Tenant or any of Tenant's property pursuant to which the Premises shall be taken or occupied or attempted to be taken or occupied; or
(6) If Tenant fails to take possession of the Premises within sixty a substantial part (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord25%) of the Premises for within a reasonable period of time after the same period, which Present Value Damages shall be payable Lease Commencement Date or vacates or abandons the Premises prior to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration normal expiration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeTerm.
Appears in 1 contract
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum It is agreed that (i) within five if Lessee vacates or abandons the Demised Premises or permits the same to remain vacant or unoccupied for a period of ten (510) days notice from Landlord that such payment has not been made ("Landlord Notice") days, or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within the rent, or any part thereof shall be unpaid for five (5) days after such payment's due date; written notice thereof to Lessee, or (biii) Tenant's failure if default shall be made in the prompt and full performance of any covenant, condition or agreement or breach of performance shall continue for more than a reasonable time (in no event to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of exceed thirty (30) days after written notice thereof from Landlordto Lessee, specifying such default, or breach of performance), or (iv) if any proceedings shall be commenced to declare Lessee bankrupt or insolvent or to obtain relief under any chapter or provision of any bankruptcy or debtor relief law or act or to reduce or modify Lessee's debts or obligations or to delay or extend the payment thereof, or if such violation any assignment of Lessee's property be made for benefit of creditors, or failure is remediable but is of such if a nature that it cannot receiver or trustee be remedied within such thirty (30) day periodappointed for Lessee or Lessee's property or business, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as Lessor may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment treat the occurrence of any one or vacation more of the Premises; (e) an Event foregoing events as a breach of Bankruptcy as specified in Article XXII with respect this Lease and thereupon at its option, without further notice or demand of any kind to Tenant, any general partner of Tenant (a "General Partner") Lessee or any Guarantor; other person, may have, in addition to all other legal or equitable remedies, the following described remedies:
(fa) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, Lessor may elect to terminate this Lease. In additionLease and the term created hereby in which event Lessor forthwith may repossess the Demised Premises and Lessee shall pay at once to Lessor as liquidated damages a sum of money equal to the rental provided in Paragraph 3 of this Lease to be paid by Lessee to Lessor for the balance of the stated term of this Lease less the fair rental value of the Demised Premises for said period.
(b) Lessor may elect to terminate Lessee's right of possession without termination of this Lease in which event Lessee agrees to surrender possession and vacate the Demised Premises immediately and deliver possession thereof to Lessor and Lessee hereby grants to Premises, in whole or in part, with or without process of law to dispossess Lessee of the Demised Premises or any [****] hereof and to expel or remove Lessee and any other person, firm [****] corporation who may be occupying or within the Demised Premises or any part thereof and remove any and all property therefrom without terminating the Lease or releasing Lessee in whole or in part from Lessee's obligation to pay rent and perform the covenants, conditions and agreements to be performed by Lessee as provided in this Lease; without being deemed in any manner quilty of trespass, Landlord may re-enter, terminate Tenant's right of possession eviction or forcible entry or detainer; and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlordrelinquishing Lessor's right to recover from Tenant all rent and rental or any other sums due right of Lessor under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right or by operation of law. Upon and after entry into possession is terminatedwithout terminating the Lease, Landlord Lessor may, but shall not be obligated to, to relet the Premises all or any part thereof, alone or together with other premises, to the Demised Premises for the account of Lessee for such rent and upon such terms and conditions (which may include concessions to such person, firm or free rent corporation and alterations of the Premises) for such period or periods as Landlord, Lessor in its Lessor's sole discretion, may discretion shall determine, but Landlord and Lessor shall not be liable forrequired to accept any tenant offered by Lessee, nor shall Tenant's obligations be diminished to observe any instruction given by reason of, Landlord's failure Lessee about such reletting or to relet do any act or exercise any care or diligence with respect to such reletting or to the Premises or collect any rent due upon mitigation of damages of Lessee. For the purpose of such reletting, Lessor may decorate or make repairs, changes, alterations or additions in or to the Demised Premises to the extent deemed by Lessor desirable or convenient. Whether or All such consideration so received shall be the sole property of Lessor; provided, however, if the consideration collected by Lessor upon any such reletting for Lessee's account is not sufficient to pay the rental reserved in this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) together with an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder five percent (5%) of the rent provided for in any new Lease Termas liquidated damages and the cost of repairs, less alternations, additions redecorating and Lessor's other expenses, Lessee agrees to pay to Lessor the amount deficiency upon demand. The service of rentalfive-day notice, if anydemand for possession, which Landlord receives during a 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 judgement for possession in such period from others to whom the Premises may be rented (action, or any other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installmentsact or acts resulting, in advance, on the first day termination of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice LandlordLessee's right to possession of the Demised Premises shall not relieve Lessee from Lessee's obligation to pay the rent hereunder during the balance of the term or any extension thereof, except as herein expressly provided. Lessor may collect and receive any such damages for rent due from Lessee; and the payment thereof shall not constitute a waiver of or affect any subsequent month(s)notice or demand given, suit instituted or judgement obtained by Lessor, or Landlord may defer any such suit until after be held to waive, affect, change, modify or alter the expiration rights or remedies which Lessor has in equity or at law or by virtue of the Lease Term, in which event the cause Lease. The acceptance of action shall be deemed not to have accrued until the expiration liquidated damages by Lessor under any of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation provisions of this Lease under shall not preclude Lessor from the enforcement of any present of the covenants or future lawagreements of this Lease, including nor shall any such other act which infers recognition of the tenancy operate as a waiver of Lessor's right which Tenant would otherwise have if Tenant shall be dispossessed for any causeto terminate this Lease or operate as an extension of this Lease.
Appears in 1 contract
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: A. If (a) Tenant's Tenant shall fail to pay any installment of Monthly Base Rent or fail to timely make any other payment required by the terms and provisions hereof and such failure to make any payment of the Base Rent, Additional Rent or any other sum pay shall continue for more than seven (i7) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) business days after such payment's due datewritten notice thereof to Tenant by Landlord; or (b) Tenant's failure Tenant shall violate or fail to take possession perform any of the Premises within sixty (60) days of the Lease Commencement Date; (c) other terms, conditions, provisions, covenants or agreements herein made by Tenant's , and if such violation or failure to perform or observe any other covenant or condition, which violation or failure continues shall continue for a period of thirty (30) days after written notice thereof from to Tenant by Landlord, or provided, however, that if the nature of such violation or failure is remediable but is not reasonably capable of such a nature that it cannot be remedied being cured within such thirty (30) day period, then for the period in which Tenant may cure such longer period failure shall be extended to a total of up to one hundred twenty (not to exceed ninety (90120) days subject to Force Majeure ) as may reasonably be requireddays, provided that Tenant promptly commences the cure of such violation or failure within the initial thirty (30) day period and thereafter continually and diligently pursues the cure of such remedy to completionviolation or failure; or (d) Tenant's abandonment or vacation of the Premises; (ec) an Event of Bankruptcy (as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner"Section 20.D below) or any Guarantorshall occur; or (fd) Tenant's ’s dissolution or liquidation.
21.2 If there liquidation shall be occur; or (e) any subletting, assignment, transfer, mortgage or other encumbrance of the Demised Premises or this Lease not permitted by Section 34, then and in any of said events (each such event, following expiration of the applicable notice and cure period is referred to as an “Event of Default”), including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole optionelection, then or at any time thereafter while such Event of Default shall continue, either:
(1) To give Tenant written notice of its intent to terminate this Lease. In additionLease on the date of such notice or on any later date specified therein, and on the date specified in such notice Tenant’s right to possession of the Demised Premises shall cease and this Lease shall thereupon be terminated; or
(2) Subject to all applicable laws, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession to reenter and take possession of the Demised Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone and repossess the same as of Landlord’s former estate and expel Tenant and those claiming through or together under Tenant and remove the effects of both or either, by summary proceedings, or by action at law or in equity or by force (if necessary) or otherwise, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of rental or breach of covenant. If this Lease is terminated or Landlord recovers possession of the Premises before the expiration of the Term by reason of Event of Default by Tenant in accordance with other premisesthis Section 20, Landlord shall take all reasonable steps to relet the Premises for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of as are not unreasonable under the Premises) as Landlord, in its sole discretion, may determine, but circumstances.
B. If Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not terminates this Lease is terminatedpursuant to this Section 20, Tenant nevertheless shall remain liable (in addition to accrued liabilities) for (i) the rental and all other sums provided for in this Lease which would have been due and payable to Landlord had such termination not occurred, or any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, and all costs, fees reasonable costs and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit reentering the Demised Premises, repossessing the same, making good any Event of its remedies Default of Tenant, reletting the same (including any and all reasonable attorney’s fees and disbursements and brokerage fees incurred in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(sso doing), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or and all reasonable costs and expenses which Landlord may defer incur during the occupancy of any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and new tenant or subtenant; less (ii) the fair market rental value(as reasonably determined by Landlord) net proceeds of any reletting prior to the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of date when this Lease under any present or future law, including any such right which Tenant would otherwise have expired if Tenant shall be dispossessed for any cause.it had not been terminated. Tenant
Appears in 1 contract
Default of Tenant. 21.1 Each a. In the event of the following shall constitute an Event any failure of Default: (a) Tenant's failure Tenant to make pay any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within rental due hereunder with five (5) days after written notice of such payment's due date; (b) failure shall have been given to Tenant's , or any failure to perform any other terms, conditions or covenants of this Lease to be observed or performed by Tenant for more than thirty (30) days after written notice of such failure shall have been given to Tenant, or if Tenant or an agent of Tenant shall knowingly falsify any report required to be furnished to Landlord pursuant to the terms of this Lease, or if Tenant shall file any debtor proceedings or any person shall take possession or have against Tenant in any court pursuant to any statute either of the Premises United States or of any state a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Tenant’s property and such petition is not dismissed within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period date Tenant receives notice of thirty (30) days after notice thereof from Landlordthe same, or if such violation Tenant makes an assignment for the benefit of creditors, or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day periodif Tenant shall abandon the Demised Premises without adequately providing for the protection thereof, then for in any such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that event Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event in default hereunder, and Landlord, in addition to other rights of Defaultremedies it may have, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the rightimmediate right of re-entry and may, by process of law only, remove all persons and property from the Demised Premises and such property may be removed and stored in a public warehouse or elsewhere at its sole optionthe cost of, and for the account of Tenant, without being guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby.
b. Should Landlord elect to re-enter the Demised Premises, as herein provided, or should it take possession of the Demised Premises pursuant to legal proceedings or pursuant to any notice provided for by law, it may either terminate this Lease. In additionLease or it may from time to time, with or without terminating this Lease, make such alterations and repairs as may be necessary in order to relet the Demised Premises, and relet the Demised Premises or any part thereof for such term or terms (which may be for a term extending beyond the Term of this Lease) and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may re-enterdeem advisable. Upon each such subletting all rentals received by the Landlord from such reletting shall be applied first to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second, terminate to the payment of any costs and expenses of such reletting, including brokerage fees and attorney’s fees and costs of such alterations and repairs; third, to the payment of the 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. If such rentals received from such reletting during any month be less than that to be paid during that month by Tenant hereunder, Tenant's right of possession and take , upon demand, shall pay any such deficiency to Landlord. No such re- entry or taking possession of the Demised Premises by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time after such re-entry and reletting elect to terminate this Lease for such previous breach. Should Landlord at any time terminate this Lease for any such breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the Demised Premises. The , attorney’s fees, and costs, the unamortized portion of any leasehold improvements made by Landlord for Tenant and including the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in this Lease for the remainder of the stated term over the then reasonable rental value of the Demised Premises (including all charges equivalent to rent) for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant to Landlord.
c. Landlord may, at its option, instead of exercising any other rights or remedies available to it in this Lease or otherwise by law, statute or equity, spend such money as is reasonably necessary to cure any default of Tenant herein and the amount so spent, and costs incurred, including attorney’s fees in curing such default, shall be paid by Tenant, as additional rent, upon demand.
d. In the event suit shall be brought for recovery of possession of the Demised Premises, for the recovery of rent or any other amount due under the provisions of this Article shall operate as a notice to quitLease, or because of the breach of any other covenant herein contained on the part of the Tenant to be kept or performed, and a breach shall be established, Tenant shall pay to Landlord all expenses incurred therefore, including attorney’s fees and costs, together with interest on all such expenses at the rate of ten percent (10%) per annum.
e. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant being evicted or dispossessed for any cause, or in the event of Landlord obtaining possession of the Demised Premises, by reason of any default hereunder, or otherwise. Tenant also waives any demand for possession of the Demised Premises, and any demand for payment of rent and any notice to quit or of Landlord's intention intent to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of VirginiaDemised Premises, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects of intent to terminate this Lease and/or elects to terminate Tenant's right of possessionLease, then everything contained other than the notices above provided in this Article, and any other notice or demand prescribed by any applicable statutes or laws.
f. No remedy herein or elsewhere in this Lease or otherwise by law, statute or equity, conferred upon or reserved to Landlord or Tenant shall be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and exclusive of any other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord mayremedy, but shall not be obligated tocumulative, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others exercised from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to time and as often as the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises occasion may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causearise.
Appears in 1 contract
Samples: Commercial Lease (Vyant Bio, Inc.)
Default of Tenant. 21.1 Each If Tenant shall fail to pay any monthly installment of rent as aforesaid (although no legal or formal demand has been made therefor), or shall violate or fail to perform any of the following shall constitute an Event of Default: (a) other conditions, covenants or agreements herein made by Tenant's , and such failure to make any payment of the Base Rent, Additional Rent pay rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such shall continue for a nature that it cannot be remedied within such thirty period often (3010) day perioddays after written notice thereof to Tenant by Landlord, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation in any of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the rightsaid events this Lease shall, at its sole optionthe option of Landlord, to cease and terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit quit, or of Landlord's ’s intention to re-enter the Premises enter, being hereby expressly waived. If necessary, and Landlord may proceed to recover possession of the Premises under and by virtue of the provisions of the laws of the Commonwealth State of VirginiaMaryland, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right Lease, everything herein contained on the part of possession, then everything contained in this Lease Landlord to be done and performed by Landlord shall cease, cease without prejudice, however, to Landlord's the right of Landlord to recover from Tenant all rent and other sums due under rental accrued up to the terms and conditions time of termination or recovery of possession by Landlord, whichever is later. Should this Lease by reason of Tenant’s default as hereinabove provided, or if Tenant shall abandon or vacate the Demised Premises before the expiration or termination of the Term of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, the Demised premises may be relet by Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of as are not unreasonable under the Premises) as Landlordcircumstances and, in its sole discretion, may determine, but Landlord if the full rental hereinabove provided shall not be liable for, nor shall Tenant's obligations be diminished realized by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain be liable for any Base Rentall damages sustained by Landlord, Additional Rent or damages which may be due or sustained prior to such defaultincluding, all costs, fees and expenses (including without limitation deficiency in rent, reasonable attorneys' ’ fees, brokerage fees, and expenses incurred in of placing the Demised Premises in first class rentable condition and tenant finish necessitated to obtain the new tenant) incurred condition. Any damage or loss of rental sustained by Landlord in pursuit of its remedies and in renting the Premises to others separate actions, from time to time. Tenant , as said damage shall also be liable for additional damages which have been made more easily ascertainable by successive relettings, or, at Landlord's election shall be either:
(a) an amount equal to the Base Rent’s option, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing deferred until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Termterm of this Lease, in which event the cause of action shall not be deemed not to have accrued until the date of expiration of said term. If Landlord should commence any summary proceeding for non-payment of rent by Tenant, Tenant shall not interpose any counterclaim of any nature or description in any such proceeding. The provisions contained in this paragraph shall be in addition to and shall not prevent the enforcement of any claim Landlord may have against Tenant for anticipatory breach of the unexpired term of this Lease. In the event that Tenant continues to occupy the Demised Premises after the expiration of the Lease Term: or
(b) an amount equal to term of this Lease, with the Present Value Damages. "Present Value Damages" express or implied consent of Landlord, such tenancy shall be an amount equal to the present value (as from month-to-month and shall not be renewal of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation term of this Lease or tenancy from year-to year. All rights and remedies of Landlord under any present or future law, including any such right which Tenant would otherwise have if Tenant this Lease shall be dispossessed for cumulative and shall not be exclusive of any causeother rights and remedies provided to Landlord under applicable law.
Appears in 1 contract
Samples: Lease Agreement (Tvi Corp)
Default of Tenant. 21.1 Each The occurrence of any of the following shall constitute an Event a default of Default: this Lease by Tenant (collectively and individually, a “Default of Tenant”): (a) Tenant's failure (I) If Tenant shall default in its obligations to make any payment of pay the Base Rent, Annual Fixed Rent or Additional Rent or any other sum (i) within five (5) days notice from Landlord that charges or amounts under this Lease when due and if any such payment has not been made ("Landlord Notice") or (ii) if Tenant has received default shall continue for three (3) days after notice from Landlord designating such Landlord Notices during default or shall default in complying with its obligations under Sections 4.4 or 6.1.11 of this Lease and if any such Lease Year within default shall continue for five (5) days after notice from Landlord designating such payment's due date; default, or (bII) Tenant's failure to take possession of the Premises if as promptly as possible but in any event within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from LandlordLandlord to Tenant specifying any default or defaults other than those set forth in clause (I) Tenant has not cured the default or defaults so specified, or if such violation or failure is remediable but default is of such a nature that it cannot be remedied cured within such thirty (30) days using best efforts, if Tenant does not commence the curing of such default within such thirty-day periodperiod and thereafter diligently and continuously prosecute such cure to completion within such additional time as may be necessary, then for such longer period (not but in no event to exceed ninety forty-five (9045) days subject from the date of Landlord’s notice to Force Majeure Tenant specifying the default; or (b) as may reasonably if any assignment shall be required, provided that made by Tenant promptly commences and diligently pursues such remedy to completionfor the benefit of creditors; or (c) if Tenant’s leasehold interest shall be taken on execution; or (d) if a lien or other involuntary encumbrance shall be filed against Tenant's abandonment ’s leasehold interest or vacation of the PremisesTenant’s other property, including said leasehold interest, and shall not be discharged within sixty (60) days thereafter; or (e) if a petition shall be filed by Tenant for liquidation, or for reorganization or an Event arrangement under any provision of Bankruptcy any bankruptcy law or code as specified then in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantorforce and effect; or (f) if an involuntary petition under any of the provisions of any bankruptcy law or code shall be filed against Tenant and such involuntary petition shall not be dismissed within thirty (30) days thereafter; or (g) if a custodian or similar agent shall be authorized or appointed to take charge of all or substantially all of the assets of Tenant's ; or (h) if Tenant dissolves or shall be dissolved or shall liquidate or shall adopt any plan or commence any proceeding, the result of which is intended to include dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with ; or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) if any order shall be entered in any proceeding by or against Tenant decreeing or permitting the Base Rent and Additional Rent that would have become due through dissolution of Tenant or the date on which the Lease Term would have expired but for Tenant's defaultwinding up of its affairs. The notice periods provided herein are in lieu of, and (ii) the fair market rental value(as reasonably determined not in addition to, any notice periods provided by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
Appears in 1 contract
Samples: Lease (Prometheus Biosciences, Inc.)
Default of Tenant. 21.1 Each If and whenever all or part of the following shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rent, Additional Minimum Rent or any other sum (i) within five (5) days amounts payable by the Tenant under this Lease are not paid on the day appointed for payment, whether demand for payment has been made or not, or if the Tenant shall fail to comply with any of the covenants hereunder after the Landlord has given notice from Landlord that to the Tenant in writing stating the default with reasonably sufficient particulars and requiring it to be remedied and such payment default has not been made remedied by the Tenant within fourteen ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (514) days after receipt of such payment's due date; notice, or such longer period as may be reasonably necessary in view of the nature of the default, or if the Tenant shall falsify any report required to be furnished to the Landlord pursuant to the terms of this Lease or if the Tenant or any indemnifier of this Lease shall become bankrupt or insolvent or file any proposal, or if a Receiver is appointed of all or a portion of the Tenant’s property or any such indemnifier’s property, or if the Tenant makes a sale in bulk, or if the Tenant shall abandon the Premises, or suffer this Lease or any of its assets to be taken under any writ of execution or like process, or if the Tenant creates a security interest in the personal property of the Tenant in the Premises in favour of a third party or if any notice is filed under section 49 of the Personal Property Security Act in respect of the Premises or if re-entry is permitted under any other terms of this Lease, then the Landlord, in addition to any other rights or remedies it may have, shall have the immediate right of re-entry and may remove all persons and property from the Premises and such property may be removed and stored for the account of the Tenant or be sold by the Landlord (band at the sole option of the Landlord, by way of private sale to the Landlord or any third party) Tenant's failure all without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby and to take have again, repossess and enjoy the Premises as of its former estate whether the Landlord terminates this Lease or not, and notwithstanding the retaking of possession of the Premises within sixty (60) days of by the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, the Landlord specifically reserves all remedies and rights of action herein or if such violation at law or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment in equity provided. The Landlord or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there its duly authorized agent shall be an Event of Default, including an Event of Default prior entitled to distrain for the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, reserved including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rentalaccelerated rent, if any, or for any money hereby made recoverable by distress upon the goods and chattels of the Tenant, wheresoever situate, and upon any premises to which Landlord receives during such period from others to whom the Premises same may have been removed or wherever the same may be rented (other than any Additional Rent payable as a result found. The Tenant hereby waives and renounces the benefit of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such legislation taking away or limiting a Landlord’s right which Tenant would otherwise have if Tenant shall be dispossessed for any causeof distress.
Appears in 1 contract
Samples: Lease Agreement
Default of Tenant. 21.1 Each If Tenant shall fail to pay any installment of rent on the following day when the same shall constitute an Event become due and payable hereunder and shall continue in default for a period of Default: ten (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after such payment's due date; (b) Tenant's failure Landlord gives written notice thereof, or if Tenant shall fail to take possession keep and perform any of the Premises within sixty (60) days other terms, covenants, and conditions of the this Lease Commencement Date; (c) Tenant's violation or failure on its part to perform or observe any other covenant or condition, which violation or failure continues be performed and shall continue in default for a period of thirty (30) days after Landlord gives notice thereof from Landlord, or if such violation or failure is remediable but is to Tenant of such a nature that it cannot be remedied within such thirty (30) day periodsaid default, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) in said event, and as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy often as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there said event shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminatedoccur, Landlord may, but at Landlord's option, cure said default at Tenant's sole cost and expense, in which event any cost incurred by Landlord in curing said default shall not be obligated tobecome immediately due and payable from Tenant, relet together with interest thereon at the Premises rate of 12% per annum, or Landlord may terminate this Lease and enter into the Leased Premises, or any part thereof, alone either with or together with without process of law, and expel Tenant, or any person occupying the Leased Premises, and use such force as may be necessary so to do, and repossess and enjoy the Leased Premises as in Landlord's former estate, but Tenant shall remain fully liable hereunder for all rents and other premises, for such rent sums to be paid and upon such terms and conditions (which may include concessions or free rent and alterations all covenants to be performed by Tenant during the remaining balance of the Premises) as Landlord, term of this Lease but subject to reduction in its sole discretion, may determine, but accordance with the next sentence. Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure use all reasonable diligence to relet the Premises or collect Leased Premises, and in said event, Landlord, shall apply the rent received from any rent new tenant thereof on any balance due upon such reletting. Whether or not under this Lease is terminatedLease, and Tenant nevertheless shall remain liable be responsible for any Base Rent, Additional Rent or damages which no more than the remaining balance that may then be due or sustained hereunder. Notwithstanding anything contained in this paragraph to the contrary, if any default shall occur, other than in the payment of money, which cannot with due diligence be cured within a period of thirty (30) days, and Tenant, prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of thirty (30) days from and after the Lease Termgiving of notices as aforesaid, in which event shall commence to eliminate the cause of action said default, shall be deemed not proceed diligently and with reasonable dispatch to have accrued until the expiration of the Lease Term: or
(b) an amount equal take all steps and do all work required to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's cure said default, and (ii) the fair market rental value(as reasonably determined by Landlord) shall thereafter cure said default, then Landlord shall grant Tenant a reasonable extension of the Premises for the same period, time within which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causecure said default.
Appears in 1 contract
Default of Tenant. 21.1 Each a. In the event of the following shall constitute an Event any failure of Default: Tenant to pay any rental due hereunder within ten (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after such payment's due date; (b) Tenant's the same becomes due, or any failure to perform any other terms, conditions or covenants of this Lease to be observed or performed by Tenant for more than ten (10) days after written notice of such failure shall have been given to Tenant, or if Tenant or an agent of Tenant shall falsify any report required to be furnished to Landlord pursuant to the terms of this Lease, or if Tenant or any guarantor of this Lease shall become bankrupt or insolvent, or file any debtor proceedings or any person shall take or have against Tenant or any guarantor of this Lease 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 for the appointment of a receiver or trustee of all or a portion of Tenant’s or any such guarantor’s property, or if Tenant or any such guarantor’s property, or if Tenant or any such guarantor makes an assignment for the benefit of creditors, or petitions for or enters into an arrangement with its creditors, or if Tenant shall abandon the Demised Premises or suffer this Lease to be taken under any writ of execution, then in any such event Tenant shall be in default hereunder, and Landlord, in addition to other rights of remedies it may have, shall have the immediate right of re-entry and may remove all persons and property from the Demised Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost of, and for the account of Tenant, without being guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby.
b. Should Landlord elect to re-enter the Demised Premises, as herein provided, or should it take possession of the Demised Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation pursuant to legal proceedings or failure pursuant to perform or observe any other covenant or conditionnotice provided for by law, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to either terminate this Lease. In additionLease or it may from time to time, with or without terminating this Lease, make such alterations and repairs as may be necessary in order to relet the Demised Premises, and relet the Demised Premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable. Upon each such subletting all rentals received by the 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 costs and expenses of such reletting, including brokerage fees and attorney’s fees and costs of such alterations and repairs; third, to the payment of the 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. If such rentals received from such reletting during any month be less than that to be paid during month by Tenant hereunder, Tenant, upon demand, shall pay any such deficiency to Landlord. No such re-enter, terminate Tenant's right of possession and take entry or taking possession of the Demised Premises by Landlord shall be construed as an election on it’s part to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time after such reentry and reletting elect to terminate this Lease for such previous breach. Should Landlord at any time terminate this Lease for any such breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the Demised Premises, attorney’s fees, and costs, the unamortized portion of any leasehold improvements made by Landlord for Tenant and including the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in this Lease for the remainder of the stated term over the then reasonable rental value of the Demised Premises for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant to Landlord. The Landlord shall also have the right to accelerate the entire indebtedness (including the amount of Base Rent and reasonably estimated Additional Rent reserved in this Lease for the remainder of the Term of Lease), reduce the same to present value using a discount rate of one hundred basis points below the “prime” or “reference” rate then announced at Wxxxx Fargo Bank, N.A., Minneapolis office, or its successors and assigns (the “Prime Rate”), and recover a judgment from Tenant in that amount.
c. Landlord may, at its option, instead of exercising any other rights or remedies available to it in this Lease or otherwise by law, statute or equity, spend such money as is reasonably necessary to cure any default of Tenant herein and the amount so spent, and costs incurred, including attorneys’ fees in curing such default, shall be paid by Tenant, as additional rent, upon demand.
d. In the event suit shall be brought for recovery of possession of the Demised Premises, for the recovery of rent or any other amount due under the provisions of this Article shall operate as a notice to quitLease, or because of the breach of any other covenant herein contained on the part of the Tenant to be kept or performed, and a breach shall be established, Tenant shall pay to Landlord all expenses incurred therefor, including attorney’s fees and costs, together with interest on all such expenses at the rate of ten percent (10%) per annum from the date of such breach of the covenants of this Lease.
e. Tenant waives any demand for possession of the Demised Premises, and any demand for payment of rent and any notice to quit or of Landlord's intention intent to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of VirginiaDemised Premises, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects of intent to terminate this Lease and/or elects to terminate Tenant's right of possessionLease, then everything contained other than the notices above provided in this Article, and any other notice or demand prescribed by any applicable statutes or laws.
f. No remedy herein or elsewhere in this Lease or otherwise by law, statute or equity, conferred upon or reserved to Landlord or Tenant shall be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and exclusive of any other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord mayremedy, but shall not be obligated tocumulative, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others exercised from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:time and as often as the occasion may arise.
(a) an amount equal to the Base Rentg. For purposes hereof, Additional Rent and other amounts due a “Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, Default” exists if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person fails to perform any of its obligations)obligations under this Lease within 30 days after receiving notice from Tenant specifying the nature and extent of such failure; provided, which damages shall however, if the obligation is not reasonably curable within such 30 day period, the time for will be computed and payable in monthly installmentsextended so long as Landlord continues to use reasonable efforts to effect a cure. If a Landlord Default has occurred, then, in advanceaddition to all rights, on powers or remedies permitted by law or in equity, Tenant may cure such Landlord Default and charge the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but cost thereof to Landlord, or sxx for Tenant's defaultspecific performance or sxx for damages. Separate suits may be brought to collect any such damages for any month(s)Landlord is liable for, and shall pay to Tenant within 30 days after receiving Tenant’s invoice, all reasonable attorneys’ fees and other costs incurred by Tenant as a result of a Landlord Default. If Landlord fails to pay within such suits shall not in any manner prejudice Landlord's 30 day period the amount due, Tenant has the right to collect any offset such damages for any subsequent month(s), or Landlord may defer any such suit until after amounts against the expiration next installments of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causehereunder.
Appears in 1 contract
Default of Tenant. 21.1 Each The following events shall be a default by Tenant (a “Default”) under this Lease:
(1) Failure of Tenant to Pay Rent as and when due, if the following shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received continues for three (3) business days after notice from Landlord specifying the failure.
(2) Failure of Tenant to comply with or perform any covenant or obligation of Tenant under this Lease, other than those concerning the payment of Rent, if the failure continues for twenty (20) days after notice from Landlord to Tenant specifying the failure; provided, however, that if the failure on the part of Tenant is not capable of being cured within such 20-day period but Tenant expeditiously commences to cure same and diligently proceeds with such cure, Tenant’s time to cure such failure shall be extended for the time necessary to cure same, but in no event longer than ninety (90) days, inclusive of the original 20-day period.
(3) If Tenant’s activities in the Premises results in a continuing or repeated, credible and significant threat of physical danger to other tenants and/or users of the Building, whether or not Tenant is capable of controlling such threat, Landlord Notices during shall have the right to terminate this Lease upon ninety (90) days’ prior written notice to Tenant in which Landlord describes in reasonable detail the nature of the continuing or repeated, credible and significant threat of physical danger or such Lease Year within five shorter notice period as may be required to avoid cancellation of Landlord’s insurance or an increase in Landlord’s insurance premium; provided, however, that such termination shall be void and of no force or effect if Tenant ceases the threatening activities prior to the expiration of such notice period or such threatening activities otherwise cease.
(4) If Tenant, any guarantor of Tenant’s performance hereunder (a “Guarantor”) or, if Tenant is a partnership, any partner of Tenant (“Partner”), shall file a voluntary petition in bankruptcy or insolvency, shall be adjudicated bankrupt or insolvent or shall file a petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future federal, state or other law, or shall make an assignment for the benefit of creditors, or shall seek or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or of any Guarantor or Partner or of all or any part of the property of Tenant or of such Guarantor or Partner.
(5) If, within thirty (30) days after the commencement of any proceeding against Tenant or a Guarantor or Partner, whether by the filing of a petition or otherwise, seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future applicable federal, state or other law, such payment's due date; proceeding shall not have been dismissed or if, within thirty (b30) Tenant's failure days after the appointment of any trustee, receiver or liquidator of Tenant or any Guarantor Or Partner, or of all or any part of the property of Tenant or of any Guarantor or Partner, without the acquiescence of such individual or entity, such appointment shall not have been vacated or otherwise discharged, or if any execution or attachment shall have been issued against the property of Tenant or of any Guarantor or Partner, pursuant to which the Premises shall be taken or occupied or attempted to be taken or occupied.
(6) If Tenant fails to take possession of the Premises within sixty (60) days of on the Lease Commencement Date or vacates, abandons or ceases to carry on its ordinary activities in the Premises prior to the Lease Expiration Date, with or without an intention of paying Rent; provided, however, that if (ci) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of Tenant gives Landlord at least thirty (30) days after prior written notice thereof from that it intends to vacate the Premises, (ii) Tenant pays the full amount of all Rent when due under this Lease while the Premises are vacant, (iii) the fact that the Premises is vacant does not adversely affect the Building or other tenants therein and does not result in any liability to, or expenditure of funds by, Landlord, or if and (iv) Tenant leaves the Premises in a condition satisfactory to Landlord and continues to maintain the Premises, in the condition required by this Lease throughout the remainder of the Term, then, and in such violation or failure is remediable but is of such a nature that it canevent only, Tenant shall not be remedied within such thirty (30deemed to be in Default under this Section 19.A.(6) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole optionexercisable by sending written notice to Tenant, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession sublet from Tenant for the balance of the Premises. The provisions Term of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession Lease all of the Premises under and by virtue of the laws of the Commonwealth of Virginiaat Tenant’s then rental rate hereunder, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects as to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations portion of the Premises) , which rights of Landlord as Landlord, to subletting and termination shall be exercisable by Landlord in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
Appears in 1 contract
Default of Tenant. 21.1 Each of the following shall constitute an Event of be deemed a default by Tenant (“Tenant Default: ” or a “Default”):
(a) Tenant's failure Failure to make any payment of pay the Base Net Rent, Additional Rent or any other sum sums payable by Tenant hereunder as and when due and such default shall continue for a period of ten (i10) within five (5) calendar days after written notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) to Tenant. Notwithstanding the foregoing, if Tenant has received three (3) such Landlord Notices fails twice during any Lease Year to pay any Net Rent, Additional Rent or other amount when due, then any subsequent failure to pay Net Rent, Additional Rent or other amount when due during such Lease Year shall constitute a Tenant Default immediately upon occurrence, irrespective of whether or not Tenant has received written notice thereof.
(b) Failure to comply with any of the insurance requirements set forth in Section 10.1 or Exhibit 10.1 and such failure shall continue for a period of ten (10) calendar days after written notice from Landlord to Tenant.
(c) Failure to perform any act to be performed by Tenant hereunder or to comply with any provision, condition or covenant contained herein and such failure continues for more than thirty (30) calendar days after written notice of such failure is delivered to Tenant, or in the event of a default which cannot with due diligence be cured within five such thirty (530) day period to commence to cure said default within thirty (30) days after such payment's notice and to prosecute the curing of such default with due date; (b) Tenant's failure diligence and to take possession complete the curing of said default within a reasonable time thereafter. Notwithstanding the foregoing, in the event Landlord determines that a Space Tenant or MOB Occupant is in violation of the Premises use restrictions set forth in Section 5.1, Section 5.2, Section 5.3 or Section 5.7 hereof, Landlord shall deliver written notice thereof to Tenant, and Tenant shall not be deemed to be in default under this Lease provided that Tenant, immediately and in good faith, prosecutes with due diligence the resolution of a dispute as to whether Space Tenant is in violation of the use restrictions, and Tenant prosecutes the curing of such default immediately and with due diligence and completes such curing by eliminating or preventing such continued prohibited use within sixty (60) days after Landlord’s written notice.
(d) The filing by or against Tenant of a petition under the Bankruptcy Code, as amended, or under any similar law or statute of the United States or any State thereof (unless such petition is dismissed within sixty (60) days of the Lease Commencement Datefiling thereof); (c) Tenant being adjudged bankrupt or insolvent in proceedings filed against Tenant thereunder; the making by Tenant of a general assignment for the benefit of creditors; Tenant's violation ’s taking the benefit of any insolvency action or failure to perform law; the appointment of a permanent receiver or observe any other covenant trustee in bankruptcy for Tenant or condition, which violation its assets; the appointment of a temporary receiver for Tenant or failure continues for a period of its assets if such temporary receivership has not been vacated or set aside within thirty (30) calendar days after notice thereof from Landlord, or if such violation or failure is remediable but is the date of such a nature that it cannot be remedied within such thirty (30) day period, then appointment; the initiation of an arrangement or similar proceedings for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completionthe benefit of creditors by or against Tenant; (d) or the dissolution or other termination of Tenant's abandonment or vacation of the Premises; ’s existence.
(e) an Event of Bankruptcy as specified in Article XXII with respect Failure, after any applicable notice and cure period (i) to make payment when due, (ii) to perform any act to be performed by Tenant, or (iii) to comply with any general partner of provision, condition or amount contained in any Leasehold Mortgage or other instrument or agreement between Tenant (and any Leasehold Mortgagee which constitutes a "General Partner") default under such Leasehold Mortgage or any Guarantor; other instrument or agreement.
(f) Tenant's dissolution The occurrence of any default by Tenant under any Approved Lease by and between Tenant and Landlord or liquidation.
21.2 If there shall be an Event affiliate of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect each case beyond any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees applicable notice and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:cure period.
(ag) an amount equal Any other event expressly deemed to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of Tenant under this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeLease.
Appears in 1 contract
Samples: Ground Lease Agreement (CNL Healthcare Properties, Inc.)
Default of Tenant. 21.1 Each of In the following shall constitute an Event of Default: event that Tenant (a) Tenant's fails to pay all or any portion of any sum due from Tenant hereunder when due and such failure to make any payment pay continues for more than ten (10) business days after receipt of the Base Rent, Additional Rent or any other sum (i) within five (5) days written notice from Landlord (provided that such payment has ten (10) day grace period shall not been made ("Landlord Notice") or (ii) if Tenant has received be available more than three (3) such Landlord Notices during such Lease Year within five times in any twelve (512) days after such payment's due datemonth period); (b) fails to perform any other terms, covenants and conditions hereof, or is otherwise in breach of any of Tenant's failure to take possession obligations hereunder or commits any other act or omission in violation of the Premises within sixty (60) days of the this Lease Commencement Date; (c) Tenant's violation or and such failure to perform or observe any other covenant or condition, which violation or failure continues for a period of more than thirty (30) days after receipt of written notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within Landlord (provided such thirty (30) day grace period shall not be available more than three (3) times in any twelve (12) month period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor); or (fc) becomes bankrupt, insolvent or files any debtor proceeding or takes or has taken against Tenant any petition of bankruptcy; takes action or has action taken against Tenant for the appointment of a receiver for all or a portion of Tenant's dissolution assets, files a petition for a corporate reorganization; or liquidation.
21.2 If there makes an assignment for the benefit of creditors, (any or all of the occurrences in this subsection 11.1 (c) shall be an Event deemed a default on account of Default, including an Event of Default prior to bankruptcy for the Rent Commencement Date, purposes hereof); then Tenant shall be in default hereunder and Landlord shall have the rightmay, at its sole option, option and without further notice to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enterTenant, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue without terminating this Lease re-enter and resume possession of the laws Premises and/or declare this Lease terminated, and may, thereupon, in either event remove all persons and property from the Premises with or without resort to process of the Commonwealth of Virginiaany court, either by force or by otherwise. Notwithstanding such other proceedings, including re-entry by Landlord, Tenant hereby indemnifies, protects, defends and possession, as holds Landlord harmless from any and all loss or damage which Tenant may be applicable. If Landlord elects to terminate incur by reason of the termination of this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord possession hereunder due to Tenant's default. In no event shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions termination of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet of the Premises or any part thereofabrogate Tenant's agreement to pay Rent and additional charges due hereunder for the full term hereof. Following re-entry of the Premises by Landlord, alone or Tenant shall promptly pay all arrearages then due and overdue and shall continue to pay all such Rent and additional charges as same become due under the terms of this Lease, together with all other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to regaining possession until such time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which as Landlord receives during such period from others to whom relets same and the Premises may are occupied by such successor, it being understood that Landlord shall have no obligation to mitigate Tenant's damages by reletting the Premises. Upon reletting, sums received from such new lessee by Landlord shall be rented (applied first to payment of costs incident to reletting; any excess shall then be applied to any indebtedness to Landlord from Tenant other than for Basic Rent; and any Additional excess shall then be applied to the payment of Basic Rent payable as a result of any failure of such other person due and unpaid. The balance, if any, shall be applied against the deficiency between all amounts received hereunder and sums to perform any of its obligations)be received by Landlord on reletting, which damages deficiency Tenant shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable pay to Landlord in a lump sum on demand. For purpose full, within five (5) days of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank notice of New Yorksame from Landlord. Tenant waives shall have no right to any right proceeds of redemption, re-entry or restoration reletting that remain following application of same in the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causemanner set forth herein.
Appears in 1 contract
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: (a) Tenant's failure (I) If Tenant shall default in its obligations to make any payment of pay the Base Rent, Annual Fixed Rent or Additional Rent or any other sum charges or amounts under this Lease when due or shall default in complying with its obligations under Sections 4.4 or 6.1.11 of this Lease and if any such default shall continue for seven (i7) within five (5) days Business Days after notice from Landlord that designating such payment has not been made ("Landlord Notice") default, or (iiII) if Tenant has received three (3) such Landlord Notices during such Lease Year as promptly as possible but in any event within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from LandlordLandlord to Tenant specifying any default or defaults other than those set forth in clause (I) Tenant has not cured the default or defaults so specified, or if such violation or failure is remediable but default is of such a nature that it cannot be remedied cured within such thirty (30) days using best efforts, if Tenant does not commence the curing of such default within such thirty-day periodperiod and thereafter diligently and {B2323618; 13} - 38 - continuously prosecute such cure to completion within such additional time as may be necessary, then for such longer period (not but in no event to exceed ninety forty-five (9045) days subject from the date of Landlord’s notice to Force Majeure Tenant specifying the default; or (b) as may reasonably if any assignment shall be required, provided that made by Tenant promptly commences and diligently pursues such remedy to completionfor the benefit of creditors; or (c) if Tenant’s leasehold interest shall be taken on execution; or (d) if a lien or other involuntary encumbrance shall be filed against Tenant's abandonment ’s leasehold interest or vacation of the PremisesTenant’s other property which includes said leasehold interest, and shall not be discharged within ten (10) days after Tenant has notice thereof; or (e) if a petition shall be filed by Tenant for liquidation, or for reorganization or an Event arrangement under any provision of Bankruptcy any bankruptcy law or code as specified then in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantorforce and effect; or (f) if an involuntary petition under any of the provisions of any bankruptcy law or code shall be filed against Tenant and such involuntary petition shall not be dismissed within thirty (30) days thereafter; or (g) if a custodian or similar agent shall be authorized or appointed to take charge of all or substantially all of the assets of Tenant's ; or (h) if Tenant dissolves or shall be dissolved or shall liquidate or shall adopt any plan or commence any proceeding, the result of which is intended to include dissolution or liquidation.
21.2 If there ; or (i) if any order shall be an Event entered in any proceeding by or against Tenant decreeing or permitting the dissolution of DefaultTenant or the winding up of its affairs; or (j) if Tenant shall fail to pay any installment of Annual Fixed Rent or Additional Rent when due, including an Event Tenant shall cure such default within the grace period provided in clause (a) (I) above (or with Landlord’s approval after the expiration of such grace period) and Tenant shall, within the next year following the date such initial defaulted payment was first due, fail more than once to pay any installment of Annual Fixed Rent or Additional Rent when due, then, and in any of such cases indicated in clauses (a) through (j) hereof (collectively and individually, a “Default prior of Tenant”), Landlord may, in addition to and not in derogation of any remedies for any preceding breach of covenant, immediately or at any time thereafter (x) give notice to Tenant terminating this Lease and/or the Rent Commencement Dateterm hereof, then Landlord which notice shall have specify the rightdate of such termination, at its sole optionwhereupon on the date so specified, to the term of this Lease and all of Tenant’s rights and privileges under this Lease shall expire and terminate this Lease. In addition, with or (y) without terminating this Lease, Landlord may re-enter, Lease terminate Tenant's right of possession and/or occupancy and reenter and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone without notice and expel Tenant and any party claiming under Tenant and remove any of their effects, without being liable on account thereof, whether in trespass or together with other premisesbreach or covenant or otherwise, for (and no such rent and upon reentry or taking possession shall be construed as an election by Landlord to terminate this Lease unless Landlord shall affirm such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determineelection by notice expressly to such effect), but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, in either case Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causehereinafter provided.
Appears in 1 contract
Samples: Lease Agreement (Pc Tel Inc)
Default of Tenant. 21.1 Each The occurrence of any of the following shall constitute an Event a default of Default: this Lease by Tenant (collectively and individually, a “Default of Tenant”): (a) Tenant's failure (I) If Tenant shall default in its obligations to make any payment of pay the Base Rent, Fixed Rent or Additional Rent or any other sum (i) within charges or amounts under this Lease when due or shall default in complying with its obligations under Sections 4.4 or 6.1.11 of this Lease and if any such default shall continue for five (5) days Business Days after notice from Landlord that designating such payment has not been made ("Landlord Notice") default, or (iiII) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from LandlordLandlord to Tenant specifying any default or defaults other than those set forth in clause (I) Tenant has not cured the default or defaults so specified, or provided that, if such violation or failure is remediable but is of such a nature that it cannot be remedied curable with reasonable diligence within such thirty (30) days but curable within one hundred twenty (120) days and Tenant has exercised reasonable diligence to cure such failure, no Default of Tenant shall exist as long as Tenant shall in fact remedy such failure within such 120-day period; or (b) if any assignment shall be made by Tenant for the benefit of creditors and is not discharged within sixty (60) days; or (c) if a lien or other involuntary encumbrance shall be filed against Tenant’s leasehold interest due to Tenant’s acts, then for such longer period and shall not be discharged within sixty (not to exceed ninety (9060) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completionthereafter; or (d) Tenant's abandonment if a voluntary petition shall be filed by Tenant for liquidation, or vacation for reorganization or an arrangement under any provision of the Premisesany bankruptcy law or code as then in force and effect; or (e) if an Event involuntary petition under any of Bankruptcy as specified in Article XXII with respect to Tenant, the provisions of any general partner of bankruptcy law or code shall be filed against Tenant and such involuntary petition shall not be dismissed within one hundred twenty (a "General Partner"120) or any Guarantordays thereafter; or (f) Tenant's if a receiver shall be authorized or appointed to take charge of all or substantially all of the assets of Tenant and is not discharged within ninety (90) days; or (g) if Tenant dissolves or shall be dissolved or shall liquidate or shall adopt any plan or commence any proceeding, the result of which is intended to include dissolution or liquidation.
21.2 If there ; or (h) if any order shall be an Event entered in any proceeding by or against Tenant decreeing or permitting the dissolution of Default, including an Event Tenant or the winding up of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession affairs and take possession of the Premisesis not discharged within ninety (90) days. The provisions of this Article shall operate as a notice to quitperiods provided herein are in lieu of, and not in addition to, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and periods provided by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
Appears in 1 contract
Samples: Lease (Surgalign Holdings, Inc.)
Default of Tenant. 21.1 (a) Each of the following events shall constitute an Event of a default (“Default”) by Tenant under this Lease: (ai) Tenant's failure if Tenant fails to make pay any payment of the Base Rent, Additional Rent (or any other sum (iinstallment thereof) within five (5) days after the same shall be due and payable, provided that Landlord shall not be obligated to provide such notice from Landlord that and opportunity to cure more than one (1) time in any twelve-month period, after which no further notice with respect to any such payment has not been made ("Landlord Notice") or failure to pay shall be required for the twelve-month period succeeding such notice in order for a Default to have occurred under this Lease; (ii) if Tenant has received three breaches or fails to observe or perform any term, condition or covenant of this Lease (3) other than those involving the payment of Rent), and such Landlord Notices during such Lease Year breach or failure is not cured within five twenty (520) days after Txxxxx’s receipt of notice thereof, unless such payment's due datecondition cannot reasonably be cured within such twenty (20) days, in which case Tenant must commence such cure within said twenty (20) days and diligently pursue said cure to its completion (provided, however, if such breach or failure creates a hazard, public nuisance or dangerous situation, said twenty (20) day grace period shall be reduced to forty eight (48) hours after Txxxxx’s receipt of notice); (iii) if Tenant vacates or abandons the Premises; (iv) if Tenant fails to carry and maintain the insurance required by this Lease; (v) if Tenant fails to submit its plans and specifications for the Tenant Improvements to Landlord within the time periods provided for in Exhibit B and such failure is not cured within ten (10) days after Tenant’s receipt of notice thereof; (vi) if Tenant effectuates a Transfer in violation of this Lease; or (vii) if Guarantor (if any) shall default in any of its obligations under the Guaranty (if any) or if there shall be a material decrease in the tangible net worth of Guarantor (if any).
(b) If a Default described in this Section occurs, Landlord shall have all the rights and remedies provided in this Section, in addition to all other rights and remedies available under this Lease or provided at law or in equity.
(c) Upon the occurrence of any event of Default described in this Section, Landlord may, upon notice to Tenant's failure , terminate this Lease, or terminate Tenant’s right to take possession of the Premises within sixty without terminating this Lease (60) days as Landlord may elect). If the Lease or Txxxxx’s right to possession under this Lease are at any time terminated under this Section, or otherwise, Tenant shall immediately surrender and deliver the Premises peaceably to Landlord. If Tenant fails to do so, Landlord shall be entitled to re-enter, without process and without notice (any notice to quit or of re-entry being hereby expressly waived), using such force as may be reasonably necessary; and, alternatively, shall be entitled to the benefit of all provisions of law respecting the speedy recovery of possession of the Lease Commencement Date; Premises (cwhether by summary proceedings or otherwise) Tenant's violation any notice to quit or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; re-entry being expressly waived.
(d) Upon the occurrence of any event of Default described in this Section, Landlord may also perform, on behalf and at the expense of Tenant's abandonment , any obligation of Tenant under this Lease which Tenant fails to perform, the cost of which (together with an administrative fee equal to twenty percent (20%) of such cost to cover Landlord’s overhead in connection therewith) shall be paid by Tenant to Landlord upon demand. In performing any obligations of Tenant, Landlord shall incur no liability for any loss or vacation damage that may accrue to Tenant, the Premises or Tenant’s Property by reason thereof, except if caused by Landlord’s willful, wanton and malicious act. The performance by Landlord of any such obligation shall not constitute a release or waiver of any of Tenant’s obligations under this Lease.
(e) Upon termination of this Lease or of Tenant’s right to possession under this Lease, Landlord may at any time and from time to time relet all or any part of the Premises for the account of Tenant or otherwise, at such rentals and upon such terms and conditions as Landlord shall deem appropriate. In the event that Landlord shall relet the Premises, then rentals received by Landlord from such reletting shall be applied: first, to the payment of such expenses as Landlord may incur in recovering possession of the Premises, including legal expenses and attorneys’ fees, in placing the Premises in good order and condition and in preparing or altering the same for re-rental; second, to the payment of such expenses, commissions and charges as may be incurred by or on behalf of Landlord in connection with the reletting of the Premises; (e) and third, to the fulfillment of the covenants of Tenant under the Lease, including the various covenants to pay Rent. Any reletting by Landlord shall not be construed as an Event election by Landlord to terminate this Lease unless notice of Bankruptcy as specified in Article XXII with respect such intention is given by Landlord to Tenant. Notwithstanding any reletting without termination of this Lease, Landlord may at any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, time thereafter elect to terminate this Lease. In additionany event, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's ’s obligations hereunder be diminished by reason of, Landlord's any failure by Landlord to relet the Premises or any failure by Landlord to collect any rent sums due upon such reletting. Whether .
(f) If this Lease, or not Txxxxx’s right to possession of the Premises, is terminated by Landlord pursuant to the provisions of this Lease is terminatedSection, Tenant nevertheless shall remain liable to Landlord for (a) any Base Rent, Additional Rent damages or damages other sums which may be due or sustained prior to such defaulttermination, (b) all reasonable costs, fees and expenses (including without limitation reasonable attorneys' ’ fees, brokerage feescommissions, advertising costs, and expenses incurred in placing the Premises in first-class rentable condition and tenant finish necessitated to obtain the new tenantcondition) incurred by Landlord in pursuit of its remedies hereunder and in renting the Premises to others from time to time. Tenant shall also be liable for ; and (c) additional damages which at Landlord's Lxxxxxxx’s election shall be either:
(ai) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during from the remainder date of such termination through the expiration of the Lease TermTerm (or what would have been the expiration of the Term but for any termination thereof), less the amount net avails of rentalreletting, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable received as a result of any failure of such other person Person to perform any of its obligationsobligation to Landlord), which damages amount shall be computed due and payable in monthly installments, in advance, by Tenant to Landlord on the first day of each calendar month following Tenant's default dates such Rent and continuing until other sums above specified are due under the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be Lease; any suit or action brought to collect any such damages for any month(s), and such suits month shall not in any manner prejudice Landlord's the right of Landlord to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: month by a similar proceeding; or
(bii) an amount equal to the Present Value Damages. "Present Value Damages" shall be accelerated damages in an amount equal to the present value (as of the date of Tenant's defaultsuch termination) of the difference between (i) the Base Rent and Additional Rent that which would have become due through the date on which expiration of the Lease Term (or what would have expired been such expiration but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same periodany termination thereof), which Present Value Damages liquidated and agreed final damages shall be payable to Landlord in a one lump sum on demand. For purpose purposes of this Section, “present value value” shall be computed by discounting such amount to present worth at a discount rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration nearest to the location of the operation Building. Damages shall be due and payable immediately upon demand by Landlord following any termination of this Lease under or Txxxxx’s right to possession of the Premises pursuant to this Section.
(g) If, as the result of Txxxxx’s Default at any present or future lawtime prior to the Lease Commencement Date, including any such right which this Lease shall be terminated, Landlord and Tenant would otherwise have if agree that, at Landlord’s sole option, Tenant shall pay to Landlord on account of such Default, as liquidated and agreed damages (and not as a penalty), immediately upon demand by Landlord, a sum equal to such amount as would have constituted one year’s Rent had the Rent Commencement Date occurred, the amount of any brokerage fees incurred by Landlord in connection with entering into this Lease with Tenant and any and all costs and expenses incurred by Landlord in performing any part of the Tenant Improvements as set forth in Exhibit B.
(h) No reference to any specific right or remedy in this Lease shall preclude Landlord from exercising any other right, from having any other remedy, or from maintaining any action to which it may otherwise be dispossessed for any causeentitled under this Lease, at law or in equity.
Appears in 1 contract
Samples: Lease (Wellgistics Health, Inc.)
Default of Tenant. 21.1 Each a. In the event of the following shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") failure of Tenant to pay any rental due hereunder on the date the same shall be due, or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or any failure to perform or observe any other covenant of the terms, conditions or condition, which violation covenants of this Lease to be observed or failure continues performed by Tenant for a period of more than thirty (30) days after written notice thereof from Landlordof such failure shall have been given to Tenant, or provided if such violation or failure is remediable but is of such a nature that it cannot be remedied cured within such said thirty (30) day period, then such period shall be extended so long as Tenant commence cure within said period and continues to diligently pursue cure thereafter, or (iii) if Tenant or an agent of Tenant shall falsify any report required to be furnished to Landlord pursuant to the terms of this Lease, or (iv) if Tenant or any guarantor of this Lease shall become bankrupt or insolvent, or file any debtor proceedings or any person shall take or have against Tenant or any guarantor of this Lease in any court pursuant to any statute either of the United States or of any state a petition of bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Tenant’s or any such longer period guarantor’s property and such proceedings or petition is not withdrawn within forty-five (not to exceed ninety (9045) days subject after filing, or (v) if Tenant or any such guarantor makes an assignment for the benefit or creditors, or (vi) if Tenant shall suffer this Lease to Force Majeure ) as may reasonably be requiredtaken under any writ of execution, provided that then in any such event Tenant promptly commences and diligently pursues such remedy to completion; shall be in default hereunder (d) Tenant's abandonment or vacation each of the Premises; (e) foregoing is an “Event of Bankruptcy as specified Default”), and Landlord, in Article XXII with respect addition to other rights or remedies it may have, shall have the immediate right of re-entry and may remove all persons and property from the Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost of, and for the account of Tenant, all without service of notice or resort to legal process and without being guilty of trespass, or becoming liable for any general partner of Tenant (a "General Partner") loss or any Guarantor; or (f) Tenant's dissolution or liquidationdamage which may be occasioned thereby.
21.2 If there shall be b. After an Event of Default, including an Event should Landlord elect to re-enter the Premises, as herein provided, or should it take possession of Default prior the Premises pursuant to the Rent Commencement Datelegal proceedings or pursuant to any notice provided for by law, then Landlord shall have the right, at its sole option, to it may either terminate this Lease. In additionLease or it may from time to time, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession make such alterations and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, repairs as may be applicable. If Landlord elects necessary in order to terminate this Lease and/or elects to terminate Tenant's right of possessionrelet the Premises, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone thereof upon such term or together with other premises, terms (which may be for a term extending beyond the Term of this Lease) and at such rent rental or rentals and upon such other terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, Landlord in its sole discretiondiscretion may deem advisable. Upon each such subletting 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 costs and expenses of such reletting, including brokerage fees and attorney’s fees and costs of such alterations and repairs; third, to the payment of the rent due and unpaid payment of future rent as the same may determinebecome due and payable hereunder. If such rentals received from such reletting during any month be less than that to be paid during that month by Tenant hereunder, but Tenant, upon demand, shall pay any such deficiency to Landlord. No such re-entry or taking possession of the Premises by Landlord shall not be liable forconstrued as an election on its part to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, nor shall Tenant's obligations be diminished Landlord may at any time after such re-entry and reletting elect to terminate this Lease for any such Event of Default, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason ofof such Event of Default, Landlord's failure including the cost of recovering the Premises, reasonable attorney’s fees, and including the worth (using a present value calculated using a six percent discount rate) at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to relet the Premises or collect any rent due upon such reletting. Whether or not reserved in this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Termstated term, less minus the amount of rentalrental loss which Tenant proves could have been reasonably avoided, if anyall of which amounts shall be immediately due and payable from Tenant to Landlord. Landlord shall also be entitled to any other amounts necessary to compensate Landlord for all detriment proximately caused by Tenant’s failure to comply with the requirements of this Lease.
c. Landlord may, which Landlord receives during at its option, instead of exercising any other rights or remedies available to it in this Lease or otherwise by law, statute or equity, spend such period from others money as is reasonably necessary to whom cure any Event of Default of Tenant herein and the Premises may amount so spent, and costs incurred, including attorney’s fees in curing such Event of Default, shall be rented (other than any paid by Tenant, as Additional Rent payable as a result Rent, upon demand.
d. After an Event of Default, in the event suit shall be brought for recovery of possession of the Premises, for the recovery of rent of any failure other amount due under the provisions of such this Lease, or because of the breach of any other person covenant herein contained on the part of Tenant to perform any of its obligations)be kept or performed, which damages and a breach shall be computed and payable in monthly installmentsestablished, in advanceTenant shall pay to Landlord all expenses incurred therefore, including a reasonable attorney’s fee, together with interest on all such expenses at the first day rate of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
ten percent (b10%) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of per annum from the date of Tenant's default) such breach of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose covenants of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Lease.
e. Tenant hereby expressly waives any right and all rights of redemption, re-entry redemption granted by or restoration of the operation of this Lease under any present or future law, including any such right which laws in the event of Tenant would otherwise have if Tenant shall be being evicted or dispossessed for any cause, or in the event of Landlord obtaining possession of the Premises, by reason of the violation by Tenant of any of the covenants or conditions of this Lease, or otherwise. Tenant also waives any demand for possession of the Premises, and any demand for payment of rent and any notice of intent to re-enter the Premises, or of intent to terminate this Lease, other than the notices above provided in this Article, and waives any and every other notice or demand prescribed by any applicable statues or laws.
f. No remedy herein or elsewhere in this Lease or otherwise by law, statute or equity, conferred upon or reserved to Landlord or Tenant shall be exclusive of any other remedy, but shall be cumulative, and may be exercised from time to time and as often as the occasion may arise.
Appears in 1 contract
Default of Tenant. 21.1 Each a. In the event of the following shall constitute an Event any failure of Default: Tenant to pay any rental due hereunder within ten (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation same becomes due, or any failure to perform or observe any other covenant terms, conditions or condition, which violation covenants of this Lease to be observed or failure continues performed by Tenant for a period of more than thirty (30) days after written notice thereof from Landlordof such failure shall have been given to Tenant (or, or if such violation or failure default is remediable but is reasonably incapable of such a nature that it cannot be remedied cure within such thirty (30) day perioddays as reasonably determined by Landlord, then for such reasonably longer period (of time not to exceed ninety a total of sixty (9060) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences the cure within thirty (30) days and diligently pursues such remedy the same to completion; completion within said sixty (d60) Tenant's abandonment day period), or vacation if Tenant or an agent of Tenant shall falsify any report required to be furnished to Landlord pursuant to the terms of this Lease, or if Tenant or any guarantor of this Lease shall become bankrupt or insolvent, or file any debtor proceedings or any person shall take or have against Tenant or any guarantor of this Lease in any court pursuant to any statute either of the Premises; (e) United States or of any state a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Tenant’s or any such guarantor’s property, or if Tenant or any such guarantor’s property, or if Tenant or any such guarantor makes an Event assignment for the benefit of Bankruptcy as specified creditors, or petitions for or enters into an arrangement with its creditors, or if Tenant shall abandon the Demised Premises pursuant to the provisions in Article XXII with respect 20.0 above or suffer this Lease to Tenantbe taken under any writ of execution, then in any general partner of such event Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event in default hereunder, and Landlord, in addition to other rights of Defaultremedies it may have, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the rightimmediate right of re-entry and may remove all persons and property from the Demised Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost of, at its sole optionand for the account of Tenant, without being guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby.
b. Should Landlord elect to re-enter the Demised Premises, as herein provided, or should it take possession of the Demised Premises pursuant to legal proceedings or pursuant to any notice provided for by law, it may either terminate this Lease. In additionLease or it may from time to time, with or without terminating this Lease, make such alterations and repairs as may be necessary in order to relet the Demised Premises, and relet the Demised Premises or any part thereof for such term or terms (which may be for a term extending beyond the Term of this Lease) and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable. Upon each such subletting 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 costs and expenses of such reletting, including brokerage fees and attorneys’ fees and costs of such alterations and repairs; third, to the payment of the 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. If such rentals received from such reletting during any month be less than that to be paid during that month by Tenant hereunder, Tenant, upon demand, shall pay any such deficiency to Landlord. No such re-enter, terminate Tenant's right of possession and take entry or taking possession of the PremisesDemised Premises by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. The provisions of this Article shall operate as a notice to quit, Notwithstanding any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessarysuch reletting without termination, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by at any time after such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects reletting elect to terminate this Lease and/or elects to for such previous breach. Should Landlord at any time terminate Tenant's right of possession, then everything contained in this Lease for any such breach, in addition to be done and performed by Landlord shall ceaseany other remedies it may have, without prejudice, however, to Landlord's right to it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the Demised Premises, attorneys’ fees, and costs, the unamortized portion of any leasehold improvements made by Landlord for Tenant and including the worth at the time of such termination of the excess, if any, of the amount of rent and other sums due under the terms and conditions of this Lease. Whether or not charges equivalent to rent reserved in this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less stated term over the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration then reasonable rental value of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Demised Premises for the same periodremainder of the stated term, all of which Present Value Damages amounts shall be immediately due and payable from Tenant to Landlord.
c. Landlord may, at its option, instead of exercising any other rights or remedies available to it in a lump sum on demand. For purpose this Lease or otherwise by law, statute or equity, spend such money as is reasonably necessary to cure any default of this SectionTenant herein and the amount so spent, present value and costs incurred, including reasonable attorneys’ fees in curing such default, shall be computed paid by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemptionTenant, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeas Additional Rent.
Appears in 1 contract
Samples: Commercial Lease (EnteroMedics Inc)
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: (a) Tenant's failure (I) If Tenant shall default in its obligations to make any payment of pay the Base Rent, Annual Fixed Rent or Additional Rent or any other sum charges or amounts under this Lease when due or shall default in complying with its obligations under Subsection 6.1.11 or the last sentence of Section 10.9 of this Lease and if any such default shall continue for ten (i) within five (510) days after notice from Landlord that designating such payment has not been made ("Landlord Notice") default, or (iiII) if Tenant has received three (3) such Landlord Notices during such Lease Year as promptly as possible but in any event within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord(or such additional time, or but not to exceed sixty (60) days, as shall be reasonably required to cure such failure if such violation or failure the same is remediable but is not capable of such a nature that it cannot be remedied cure within such thirty (30) day period, then days despite the use of all reasonable efforts by Tenant to do so) after notice from Landlord to Tenant specifying any default or defaults other than those set forth in clause (I) Tenant has not cured the default or defaults so specified; or (b) if any assignment shall be made by Tenant or any guarantor of Tenant for such longer period the benefit of creditors; or (not to exceed ninety (90c) days subject to Force Majeure ) as may reasonably if Tenant’s leasehold interest shall be required, provided that Tenant promptly commences and diligently pursues such remedy to completiontaken on execution; or (d) if a lien or other involuntary encumbrance shall be filed against Tenant's abandonment ’s leasehold interest or vacation Tenant’s other property, including said leasehold interest, or against the property of the Premisesany guarantor of Tenant, and shall not be discharged within ten (10) days thereafter; or (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, if a petition shall be filed by Tenant or any general partner guarantor of Tenant (a "General Partner") for liquidation, or for reorganization or an arrangement under any Guarantorprovision of any bankruptcy law or code as then in force and effect; or (f) if an involuntary petition under any of the provisions of any bankruptcy law or code shall be filed against Tenant or any guarantor of Tenant and such involuntary petition shall not be dismissed within thirty (30) days thereafter; or (g) if a custodian or similar agent shall be authorized or appointed to take charge of all or substantially all of the assets of Tenant or any guarantor of Tenant's ; or (h) if Tenant or any guarantor of Tenant dissolves or shall be dissolved or shall liquidate or shall adopt any plan or commence any proceeding, the result of which is intended to include dissolution or liquidation.
21.2 If there ; or (i) if any order shall be an Event entered in any proceeding by or against Tenant or any guarantor of DefaultTenant decreeing or permitting the dissolution of Tenant or any guarantor of Tenant or the winding up of its affairs; or (j) if Tenant shall fail to pay any installment of Annual Fixed Rent or Additional Rent when due, including an Event Tenant shall cure such default within the grace period provided in clause (a) (I) above (or with Landlord’s approval after the expiration of such grace period) and Tenant shall, within the next year following the date such initial defaulted payment was first due, fail more than twice to pay any installment of Annual Fixed Rent or Additional Rent when due, then, and in any of such cases indicated in clauses (a) through (j) hereof (collectively and individually, a “Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate of Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated”), Landlord may, but shall in addition to and not be obligated toin derogation of any remedies for any preceding breach of covenant, relet the Premises immediately or at any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure time thereafter give notice to relet the Premises or collect any rent due upon such reletting. Whether or not Tenant terminating this Lease is terminatedand the term hereof, which notice shall specify the date of termination, whereupon on the date so specified; the term of this Lease and all of Tenant’s rights and privileges under this Lease shall expire and terminate but Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.hereinafter provided,
Appears in 1 contract
Samples: Lease (Cuisine Solutions Inc)
Default of Tenant. 21.1 Each In the event of the following shall constitute an Event any failure of Default: (a) Tenant's failure Tenant to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year pay rental due hereunder within five (5) days after such payment's the same shall be due date; more than twice in any twelve (b12) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation month period, or any failure to perform or observe any other covenant of the terms, conditions or condition, which violation covenants of this Lease to be observed or failure continues performed by Tenant for a period of more than thirty (30) days after written notice thereof from Landlordof such default shall have been given to Tenant, or such larger period of time as is reasonable if Tenant has commenced curing such violation or failure is remediable but is of such a nature that it cannot be remedied default within such thirty (30) day perioddays and is diligently pursuing such cure, or if Tenant shall be finally adjudicated a bankrupt and all appeal rights have been extinguished, or if Tenant, in any court pursuant to any statute either of the United States or of any State, shall file a petition in bankruptcy or insolvency, or for reorganization or for the appointment of a receiver or trustee for all or a portion of Tenant's properly, or shall make an assignment for the benefit of creditors, or if Tenant shall abandon the Leased Premises and remove its furnishings and equipment therefrom, or if Tenant shall abandon said premises and also be in default under the Lease, or suffer this Lease to be taken under any writ of execution, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as Landlord, besides other rights or remedies it may reasonably be requiredhave, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the rightimmediate right of re-entry and may remove all persons and property from the Leased Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost, at its sole optionand for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. Should Landlord elect to reenter as herein provided, or should it take possession pursuant to legal proceedings or pursuant to any notice provided for by law it may either terminate this Lease. In addition, with Lease or it may from time to time without terminating this Lease, make such alterations and repairs as may be necessary to relet the Premises, and relet said Premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable; upon each such reletting all rentals received by the 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 costs and expenses of such reletting, including brokerage and attorneys' fees and of costs of alterations and repairs; third, to the payment of rent due and unpaid hereunder, and the residue, if any, shall be held by the Landlord and applied in payment of future rent as the same may become due and payable hereunder. If such rentals received from such reletting during any month be less than that to be paid during that month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. No such re-enter, terminate Tenant's right of possession and take entry or taking possession of the Premises. The provisions of this Article Leased Premises by Landlord shall operate be construed as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects an election on its part to terminate this Lease and/or elects unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. Should Landlord at any time terminate this Lease for any breach, in addition to any other remedies it may have all remedies available to it at law or in equity. In the event of any breach or threatened breach by Tenant or Landlord of any of the terms and provisions of this Lease, either Tenant or Landlord shall have the right to injunctive relief as if no other remedies were provided herein for such breach. The rights and remedies herein reserved by or granted to Landlord or Tenant are distinct, separate and cumulative, and the exercise of any one of them shall not be deemed to preclude, waive or prejudice Landlord's or Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's exercise any or all others. Tenant hereby expressly waives any right to recover from Tenant all rent assert a defense based on merger and other sums due under agrees that neither the terms and conditions commencement of this Lease. Whether any action or not this Lease and/or Tenant's right of possession is terminatedproceeding, Landlord may, but shall not be obligated to, relet nor the Premises or any part settlement thereof, alone nor the entry of judgment therein shall bar Landlord from bringing any subsequent actions or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others proceedings from time to time. Tenant Wherever in this Lease the Landlord has reserved or is granted the right of re-entry into the Leased Premises the use of such word is not intended, nor shall also it be liable for additional damages which at Landlord's election shall construed, to be either:
limited to its technical legal meaning. If either party incurs any expenses, including court costs and attorneys' fees (a) an amount equal to and the Base Rentcosts and expenses of such attorney), Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of a default by the other party under this Lease, whether or not litigation is commenced or concluded, then such other person to perform any of its obligations), which damages expenses shall be computed and payable in monthly installmentsreimbursed by the non-prevailing party, in advance, on the first day of each calendar month following Tenant's whether or not such default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New Yorkis subsequently cured. Tenant hereby waives demand for rent, demand for possession, notice of forfeiture, notice of termination and any right of redemption, re-entry and all other demands or restoration of the operation of this Lease under any present or future notices required by law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any cause.
Appears in 1 contract
Default of Tenant. 21.1 Each The following events shall be a default ("Default") of the following shall constitute an Event Tenant under this Lease:
(1) Failure of Default: (a) Tenant's failure Tenant to make any payment of the Base Rent, Minimum Rent or Additional Rent when due and such failure shall continue for a period of five (5) days following written notice thereof from Landlord to Tenant, provided Landlord shall only be required to give written notice of such monetary default twice in any twelve (12) month period, and thereafter it shall be a default under this Lease if Tenant shall fail to make any payment of Minimum Rent or any other sum (i) Additional Rent within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's of the due date; .
(b2) Tenant's failure to take possession Failure of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure Tenant to perform or observe comply with any provision of this Lease to be performed or complied with by Tenant, other covenant than provisions for the payment of Minimum Rent or conditionAdditional Rent, which violation or where such failure continues shall continue for a period of thirty (30) days after written notice thereof from Landlord, or if by Landlord to Tenant; provided that in the event such violation or failure is remediable but is of such a nature that it default cannot be remedied cured within such thirty (30) day period, then for such longer period days and Tenant commences to cure the default within thirty (not to exceed ninety (9030) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such cure, then the 30-day period shall be extended for up to an additional sixty (60) days as may be reasonably necessary to cure such default.
(3) The taking of this Lease or the Demised Premises, or any part thereof upon execution or by other process of law directed against Tenant, or upon or subject to any attachment at the instance of any creditor of or claimant against Tenant, which execution or attachment shall not be discharged or disposed of within thirty (30) days after the levy thereof.
(4) If Tenant fails to take possession of at least fifty percent (50%) of the Demised Premises within three (3) months after the Lease Commencement Date or vacates or abandons the Demised Premises prior to the normal expiration of the term; provided Landlord's only remedy in the event of a default solely under this subparagraph (4) shall be, at Landlord's option, to completion; take back the Demised Premises and terminate this Lease.
(5) The taking by Tenant, or any guarantor of Tenant's obligations hereunder, of any of the following actions:
(a) its admitting in writing its inability to pay its debts generally as they become due, or (b) its filing a petition in bankruptcy or for reorganization or for the adoption of an arrangement under the Bankruptcy Code (as now existing or in the future amended), or an answer or other pleading admitting the material allegations of such a petition or seeking, consenting to or acquiescing in the relief provided for under such Code, or (c) its making an assignment of all or a substantial part of its property for the benefit of its creditors, or (d) Tenant's abandonment its seeking or vacation consenting to or acquiescing in the appointment of a receiver or trustee for all or a substantial part of its property or of the Demised Premises; , or (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenantits being adjudicated a bankrupt or insolvent, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution the entry of a court order without its consent, which order shall not be vacated, set aside or liquidation.
21.2 If there shall be stayed within sixty (60) days from the date of entry, appointing a receiver or trustee for all or a substantial part of its property or approving a petition filed against it for the effecting of an Event of Default, including an Event of Default prior arrangement in bankruptcy or for a reorganization pursuant to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with Bankruptcy Code or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession for any other judicial modification or alteration of the Premisesrights of creditors. The provisions of this Article paragraph shall operate apply notwithstanding the payment by Tenant of a security deposit under paragraph 7 and/or the continued willingness and ability of Tenant to pay rent and otherwise perform hereunder. The receipt by Landlord of payments of rent, as a such, accruing subsequent to the time of Tenant's Default under this paragraph and before Landlord has actual notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises occurrence of an event of Default under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but paragraph shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations deemed a waiver by Landlord of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose provisions of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeparagraph.
Appears in 1 contract
Samples: Lease Agreement (V One Corp/ De)
Default of Tenant. 21.1 Each A. If there should occur any default on the part of the following Tenant in the due and punctual payment of any Base Rent or Additional Rent when due or in the performance of any conditions and covenants herein contained, or if during the term hereof the Demised Premises or any part thereof shall constitute an Event be or become abandoned or deserted, vacated or vacant, or should the Tenant be evicted by summary proceedings or otherwise, the Landlord, in addition to any other remedies herein contained or as may be permitted by law, may either by force or otherwise, without being liable for prosecution therefor, or for damages, re-enter the Demised Premises and the same have again possess and enjoy; and as agent for the Tenant or otherwise, re-let the Demised Premises and receive the rents therefor and apply the same, first to the payment of Default: (a) Tenant's failure such expenses, reasonable attorney fees and costs, as the Landlord may have been put to make any in re-entering and repossessing the same and in making such repairs and alterations as may be necessary; and second to the payment of the Base Rentrents due hereunder. The Tenant shall remain liable for such rents as may be in arrears and also the rents as may accrue subsequent to the re-entry by the Landlord, Additional Rent to the extent of the difference between the rents reserved hereunder and the rents, if any, received by the Landlord during the remainder of the unexpired term hereof, after deducting the aforementioned expenses, fees and costs; the same to be paid as such deficiencies arise and are ascertained each month. Tenant expressly waivers any and all rights of redemption granted by or under any other sum (i) within five (5) days notice from present or future law in the event it is evicted or dispossessed for any cause or if Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (5) days after such payment's due date; (b) Tenant's failure to take obtains possession of the Demised Premises within sixty (60) days by reason of violation or any terms, covenants and conditions of the Lease Commencement Date; (c) Tenant's violation Lease.
B. Upon the occurrence of any of the contingencies set forth in the proceeding clause, or failure should the Tenant be adjudicated bankrupt, insolvent or placed in receivership, or should proceedings be instituted by or against the Tenant for bankruptcy, insolvency, receivership, agreement of composition or assignment for the benefit of creditors, or should Tenant be dissolved or liquidated or possession of the property of Tenant be taken by any governmental officer or agency pursuant to perform statutory authority for dissolution rehabilitation, reorganization or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlordliquidation, or if such violation this Lease or failure is remediable but is the estate of the Tenant hereunder shall pass to another by virtue of any court proceedings, writ of execution, levy, sale, or by operation of law, the Landlord may, in addition to any other remedies Landlord may have, if the Landlord so elects, at any time thereafter, terminate this Lease and the term hereof, upon giving to the Tenant or to any trustee, receiver, assignee or other person in charge of or acting as custodian of the assets or property of the Tenant, five days notice in writing, of the Landlord's intention so to do. Upon the giving of such a nature that it cannot be remedied within notice, this Lease and the term hereof shall end on the date fixed in such thirty (30) day period, then notice as if the said date was the date originally fixed in this Lease for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences the expiration hereof; and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the rightright to remove all persons, at its sole optiongoods, to terminate this Lease. In additionfixtures and chattels therefrom, by force or otherwise, without liability for damages.
C. The parties hereby shall and they hereby do waive trial by jury in any action or proceeding brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way connected with or without terminating this Lease, the relationship of Landlord may re-enterand Tenant, terminate Tenant's right of possession and take possession use or occupancy of the PremisesDemised Premises any claim of injury or damage. The provisions In the event Landlord commences any proceedings for non-payment of this Article Base Rent and/or Additional Rent, Tenant waives its right to file a counterclaim or remove such action to the Superior Court from Special Civil Part. This shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudicenot, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions be construed as a waiver of this Lease. Whether or not this Lease and/or Tenant's right rights to assert such claims in any special action or actions.
D. If the Tenant shall fail or refuse to comply with and perform any conditions and covenants of possession is terminatedthe within Lease, the Landlord may, may (but shall not be obligated to) if the Landlord so elects, relet carry out and perform such conditions and covenants, at the Premises cost and expense of the Tenant, and the said cost and expense shall be payable on demand, or at the option of the Landlord shall be added to the installment of rent due immediately thereafter but in no case later than one month after such demand, whichever occurs sooner, and shall be due and payable as such. This remedy shall be in addition to such other remedies as the Landlord may have hereunder by reason for the breach by the Tenant of any part thereof, alone or together with other premises, for such rent and upon such terms of the covenants and conditions (which may include concessions in this Lease contained. Landlords delay or free rent and alterations failure to insist upon strict performance of any of the Premises) as Landlord, in its sole discretion, may determine, but Landlord covenants and conditions of this Lease or to exercise any other available right or remedy shall not be liable forimpair any such right or remedy, nor shall Tenant's obligations it be diminished by reason of, Landlord's failure construed to relet the Premises be a forbearance or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causewaiver.
Appears in 1 contract
Default of Tenant. 21.1 Each In the event of any failure of Tenant to pay any rental or other charges due hereunder on the day the same shall be due, or any failure to perform any other of the following terms, conditions, or covenants of this Lease to be observed or performed by Tenant for more than ten (10) days after written notice of such default shall constitute an Event have been mailed to Tenant, or if Tenant shall abandon said premises or permit this Lease to be taken under any writ of Defaultexecution, then the Landlord, besides other rights or remedies it may have, shall have the right to declare this Lease terminated and the term ended and/or shall have the immediate right of re-entry and may remove all persons and property from the leased premises, and such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Tenant, without evidence of notice or resort to legal process and without being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby. Should Landlord elect to re-enter, as herein provided, or should it take possession pursuant to legal proceedings or pursuant to any notice provided for by law, it may either terminate this Lease or it may from time to time, without terminating this Lease, make such alterations and repairs as may be necessary in order to relet the premises, and relet said premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable. Upon each such reletting, all rentals and other sums received by Landlord from such reletting shall be applied: (a) Tenant's failure first, to make any the payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second, to the Base Rentpayment of any costs and expenses of such reletting, Additional Rent including reasonable brokerage fees and attorneys' fees and of costs of such alterations and repairs and costs of moving other tenants in the Premises in order to relet the leased premises, such as repairs and alterations to other portions of the Premises or reduced rental to other tenants; third, to the payment of rent and other charges 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. If such rentals and other sums received from such reletting during any month be less than that to be paid during that month by Tenant hereunder, Tenant shall pay such deficiency to Landlord. Such deficiency shall be calculated and paid monthly. Tenant shall in no event be entitled to any rent collected as payable under any reletting, whether or not such rent shall exceed the rent reserved in this Lease. No such re-entry or taking possession of said premises by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time hereafter elect to terminate this Lease for such previous breach. Should Landlord at any time terminate this Lease for any breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the leased premises, reasonable attorneys' fees, and including the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in this Lease for the remainder of the stated term over the then reasonable rental value of the leased premises for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant to Landlord. Abandonment of the leasehold shall not terminate tenant's obligations hereunder. In the event tenant seeks relief pursuant to 11 USC of the United States Bankruptcy Code, the parties hereto agree that any relief approved by the court thereunder after Motion of the Debtor will only be effective as of the date of the Hearing on such Motion, or such later date as the court may designate. Landlord shall be entitled to immediate administrative payment of all amounts due under the lease from the date of filing any Petition in Bankruptcy, until said relief may be granted by the court. In case suit shall be brought for recovery of possession of the leased premises, for the recovery of rent or any other sum (i) amount due under the provisions of this Lease, or because of the breach of any other covenant herein contained on the part of Tenant to be kept performed, and a breach shall be established, Tenant shall pay to Landlord all expenses incurred therefor, including reasonable attorneys' fees. If any amount due from Tenant is not received by Landlord within five (5) days notice from of when due, Tenant shall pay to the Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within an additional sum equal to five (5%) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is percent of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate overdue amount as a notice to quit, late charge. Payment of any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but late charge shall not be obligated to, relet the Premises excuse or cure any part thereof, alone default or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but prevent Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform exercising any of its obligations), which damages shall be computed other rights and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeremedies.
Appears in 1 contract
Default of Tenant. 21.1 Each The occurrence of any of the following events shall constitute an Event a breach of Default: (a) Tenant's this Lease:
A. The failure of Tenant to pay rent or to make any other payment of the Base Rent, Additional Rent or any other sum money as herein required when due for a period of ten (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after delivery by Landlord of a written notice to Tenant of any such payment's due date; (b) Tenant's failure to take possession failure.
B. The expiration of the Premises within a period of sixty (60) days following (I) the adjudication of Tenant as a bankrupt by any court of competent jurisdiction, (II) the entry of an order approving a petition filed by one other than Tenant, seeking reorganization of Tenant under the National Bankruptcy Act or any other applicable law of the United States or of any State, or (III) the appointment of a trustee or receiver of all or substantially all of the business or property of Tenant, or (IV) the levy of any attachments, execution or garnishment upon the interest of Tenant hereunder, or upon the leasehold estate hereby created, unless during such period such adjudication, order or appointment of a receiver or trustee, attachment, execution or garnishment shall be vacated or unless within such period Tenant shall have taken proper action to vacate such adjudication, order or appointment of a receiver or trustee, attachment, execution or garnishment, and in such event such occurrence shall not constitute a breach of this Lease Commencement Date; (c) Tenant's violation until final adjudication of the matter.
C. The filing by Tenant of a voluntary petition in bankruptcy or failure the making of an assignment for the benefit of creditors, the consenting by Tenant to perform the appointment of a receiver or observe trustee of all or any part of its property, the filing by Tenant of a petition or answer seeking reorganization under the National Bankruptcy Act or any other covenant applicable law, or conditionthe filing by Tenant of a petition to take advantage of any insolvency act.
D. The failure of Tenant to correct any default hereunder, which violation or failure continues for a period other than those specified in subdivisions (A), (B), and (C) of this Section 15 within thirty (30) days after delivery by Landlord to Tenant of a written notice thereof from Landlordof such default, or if such violation or failure is remediable but the default is of such a nature that it cannot be remedied corrected within such thirty (30) day perioddays, then for the failure of Tenant within such longer period (not to exceed ninety (90) days subject commence and thereafter proceed diligently to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues cure such remedy to completion; (d) Tenant's abandonment or vacation default. If any of the Premises; (e) an Event above-mentioned events of Bankruptcy as specified in Article XXII with respect to Tenantdefault shall occur, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord option may re-enter, terminate Tenant's right of possession enter and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to at its option terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant accelerate all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be payments due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts coming due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causehereunder.
Appears in 1 contract
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: (a) Tenant's failure (I) If Tenant shall default in its obligations to make pay the Annual Fixed Rent or regularly scheduled payments of Additional Rent under this Lease when due, or if Tenant shall default in its obligations to pay any payment of the Base Rent, invoice for Additional Rent or any other sum charges or amounts under this Lease when due and if any such default shall continue for seven (i) within five (57) days after notice from Landlord that designating such payment has not been made ("Landlord Notice") default, or (iiII) shall default in complying with its obligations under Sections 4.4 or 6.1.11 of this Lease and if Tenant has received three (3) any such Landlord Notices during such Lease Year within default shall continue for five (5) days after notice from Landlord designating such payment's due date; default, or (bIII) Tenant's failure to take possession of the Premises if as promptly as possible but in any event within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from LandlordLandlord to Tenant specifying any default or defaults other than those set forth in clauses (I) or (II) Tenant has not cured the default or defaults so specified, or if such violation or failure is remediable but default is of such a nature that it cannot be remedied cured within such thirty (30) days using diligent efforts, if Tenant does not commence the curing of such default within such thirty-day periodperiod and thereafter diligently and continuously prosecute such cure to completion within such additional time as may be necessary, then for such longer period (not but in no event to exceed ninety (90) days subject from the date of Landlord’s notice to Tenant specifying the default (which 90-day period shall be extended on a day for day basis for each day that Tenant’s cure is delayed solely due to Force Majeure events or Landlord-cause delays); or (b) as may reasonably if any assignment shall be required, provided that made by Tenant promptly commences and diligently pursues such remedy to completionfor the benefit of creditors; or (c) if Tenant’s leasehold interest shall be taken on execution; or (d) if a lien or other involuntary encumbrance shall be filed against Tenant's abandonment ’s leasehold interest or vacation of the PremisesTenant’s other property, including said leasehold interest, and shall not be discharged within ten (10) days thereafter; or (e) if a petition shall be filed by Tenant for liquidation, or for reorganization or an Event arrangement under any provision of Bankruptcy any bankruptcy law or code as specified then in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantorforce and effect; or (f) if an involuntary petition under any of the provisions of any bankruptcy law or code shall be filed against Tenant and such involuntary petition shall not be dismissed within thirty (30) days thereafter; or (g) if a custodian or similar agent shall be authorized or appointed to take charge of all or substantially all of the assets of Tenant's ; or (h) if Tenant dissolves or shall be dissolved or shall liquidate or shall adopt any plan or commence any proceeding, the result of which is intended to include dissolution or liquidation.
21.2 If there ; or (i) if any order shall be an Event entered in any proceeding by or against Tenant decreeing or permitting the dissolution of DefaultTenant or the winding up of its affairs; or (j) if Tenant shall fail to pay any installment of rent when due, including an Event Tenant shall cure such default within the grace period provided in clause (a) (I) above (or with Landlord’s approval after the expiration of such grace period) and Tenant shall, within the next year following the date such initial defaulted payment was first due, fail more than once to pay any installment of Annual Fixed Rent or Additional Rent when due, then, and in any of such cases indicated in clauses (a) through (j) hereof (collectively and individually, a “Default prior of Tenant”), Landlord may, in addition to and not in derogation of any remedies for any preceding breach of covenant, immediately or at any time thereafter (x) give notice to Tenant terminating this Lease and/or the Rent Commencement Dateterm hereof, then Landlord which notice shall have specify the rightdate of such termination, at its sole optionwhereupon on the date so specified, to the term of this Lease and all of Tenant’s rights and privileges under this Lease shall expire and terminate this Lease. In addition, with or (y) without terminating this Lease, Landlord may re-enter, Lease terminate Tenant's right of possession and/or occupancy and reenter and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone without notice and expel Tenant and any party claiming under Tenant and remove any of their effects, without being liable on account thereof, whether in trespass or together with other premisesbreach or covenant or otherwise, for (and no such rent and upon reentry or taking possession shall be construed as an election by Landlord to terminate this Lease unless Landlord shall affirm such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determineelection by notice expressly to such effect), but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, in either case Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causehereinafter provided.
Appears in 1 contract
Default of Tenant. 21.1 Each The occurrence of any one or more of the following shall constitute an Event a “Default of Default: Tenant” under this Lease:
(a) Tenant's The failure by Tenant to make any payment of the Base Annual Fixed Rent, Additional Rent or any other sum payment required to be made by Tenant hereunder (i) within five collectively, “Rent”), as and when due, where such failure shall continue for ten (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after notice thereof from Landlord to Tenant; provided, however, that any such payment's due date; notice shall be in lieu of, and not in addition to, any notice required under California Code of Civil Procedure §1161.
(b) Tenant's The failure by Tenant to take possession observe or perform any of the Premises within sixty express or implied covenants or provisions of this Lease to be observed and performed by Tenant, other than as specified in subsection (60a) days of the Lease Commencement Date; (c) Tenant's violation or above, where such failure to perform or observe any other covenant or condition, which violation or failure continues shall continue for a period of thirty (30) days after written notice thereof from LandlordLandlord to Tenant; provided, or however, that any such notice shall be in lieu of, and not in addition to, any notice required under California Code of Civil Procedure §1161; provided, further, that if the nature of Tenant’s default is such violation or failure is remediable but is of such a nature that it canmore than thirty (30) days are reasonably required for its cure, then Tenant shall not be remedied deemed to be in default if Tenant shall commence such cure within such thirty (30) day period, then for period and thereafter diligently prosecute such longer period cure to completion within sixty (not to exceed ninety (9060) days subject to Force Majeure from the date of such notice from Landlord.
(c) as may reasonably be required, provided that An assignment by Tenant promptly commences and diligently pursues such remedy to completion; or any guarantor of Tenant for the benefit of creditors.
(d) The taking by execution or levy of Tenant's abandonment or vacation of the Premises; ’s leasehold interest.
(e) an Event The filing of Bankruptcy as specified in Article XXII with respect to a lien or other involuntary encumbrance against Tenant’s leasehold interest or Tenant’s other property, including said leasehold interest, or against the property of any guarantor of Tenant, any general partner of which filing shall not be discharged within ten (10) days after Tenant (a "General Partner") or any Guarantor; or receives notice thereof.
(f) Tenant's dissolution The filing of a petition by Tenant or any guarantor of Tenant for liquidation, or for reorganization or an arrangement under any provision of any bankruptcy law or code as then in force and effect.
21.2 If there shall be (g) The filing of an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession involuntary petition under any of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit bankruptcy law or code against Tenant or any guarantor of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under Tenant and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but involuntary petition shall not be obligated todismissed within thirty (30) days thereafter.
(h) The appointment of a custodian, relet receiver or similar agent shall be authorized or appointed to take charge of all or substantially all of the Premises assets of Tenant or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date guarantor of Tenant's default) of the difference between .
(i) The dissolution or liquidation of Tenant or any guarantor of Tenant or the Base Rent and Additional Rent that would have become due through adoption of any plan or the date on commencement of any proceeding, the result of which is or is intended to include the Lease Term would have expired but for dissolution or liquidation of Tenant or any guarantor of Tenant's default, and .
(iij) The entry of an order in any proceeding by or against Tenant or any guarantor of Tenant decreeing or permitting the fair market rental value(as reasonably determined by Landlord) dissolution of Tenant or any guarantor of Tenant or the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose winding up of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeits affairs.
Appears in 1 contract
Samples: Lease Agreement (Dexcom Inc)
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: (a) Tenant's failure (I) If Tenant shall default in its obligations to make any payment of pay the Base Rent, Annual Fixed Rent or Additional Rent when due or shall default in complying with its obligations under Sections 4.4 or 6.1.11 of this Lease and if any other sum (i) within such default shall continue for five (5) days after written notice from Landlord that designating such payment default, or (II) if as promptly as possible but in any event within thirty (30) days after written notice from Landlord to Tenant specifying any default or defaults other than those set forth in clause (I) Tenant has not been made ("Landlord Notice") cured the default or defaults so specified; or (iib) if any assignment shall be made by Tenant for the benefit of creditors; or (c) if Tenant’s leasehold interest shall be taken on execution; or (d) if an involuntary lien or other involuntary encumbrance shall be filed against Tenant’s leasehold interest or Tenant’s property at the Premises and shall not be discharged within sixty (60) days after Tenant shall have been given notice thereof by any party; or (e) if a petition shall be filed by Tenant for liquidation, or for reorganization or an arrangement under any provision of any bankruptcy law or code as then in force and effect; or (f) if an involuntary petition under any of the provisions of any bankruptcy law or code shall be filed against Tenant and such involuntary petition shall not be dismissed within thirty (30) days thereafter; or (g) if a custodian or similar agent shall be authorized or appointed to take charge of all or substantially all of the assets of Tenant; or (h) if Tenant has received three dissolves or shall be dissolved or shall liquidate or shall adopt any plan or commence any proceeding, the result of which is intended to include dissolution or liquidation; or (3i) if any order shall be entered in any proceeding by or against Tenant decreeing or permitting the dissolution of Tenant or the winding up of its affairs; (j) if Tenant shall fail to deposit the second half of the Security Deposit with Landlord by April 5, 2013 in accordance with Section 4.7, or (k) if Tenant shall fail to pay any installment of Annual Fixed Rent or Additional Rent when due, Tenant shall cure such Landlord Notices during default within the grace period provided in clause (a) (I) above (or with Landlord’s approval after the expiration of such Lease Year grace period) and Tenant shall, within the next year following the date such initial defaulted payment was first due, fail more than twice to pay any installment of Annual Fixed Rent or Additional Rent within five (5) days after the date the same is due, then, and in any of such payment's due date; cases indicated in clauses (ba) through (k) hereof (collectively and individually, a “Default of Tenant's failure ”), Landlord may, in addition to take possession and not in derogation of any remedies for any preceding breach of covenant, immediately or at any time thereafter (x) give notice to Tenant terminating this Lease and/or the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or conditionterm hereof, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is shall specify the date of such a nature that it cannot be remedied within such thirty (30) day periodtermination, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be requiredwhereupon on the date so specified, provided that Tenant promptly commences the term of this Lease and diligently pursues such remedy to completion; (d) all of Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; ’s rights and privileges under this Lease shall expire and terminate or (fy) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, Lease terminate Tenant's ’s right of possession and/or occupancy and reenter and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone without notice and expel Tenant and any party claiming under Tenant and remove any of their effects, without being liable on account thereof, whether in trespass or together with other premisesbreach or covenant or otherwise, for (and no such rent and upon reentry or taking possession shall be construed as an election by Landlord to terminate this Lease unless Landlord shall affirm such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determineelection by notice expressly to such effect), but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, in either case Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causehereinafter provided.
Appears in 1 contract
Samples: Lease (Mimedx Group, Inc.)
Default of Tenant. 21.1 Each of the following shall constitute an Event of Default: (a) Tenant's failure (I) If Tenant shall default in its obligations to make any payment of pay the Base Rent, Annual Fixed Rent or Additional Rent or any other sum (i) within charges or amounts under this Lease when due or shall default in complying with its obligations under Subsection 6.1.11 of this Lease and if any such default shall continue for five (5) business days after written notice from Landlord that designating such payment has not been made ("Landlord Notice") default, or (iiII) if Tenant has received three (3) such Landlord Notices during such Lease Year as promptly as possible but in any event within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after written notice thereof from LandlordLandlord to Tenant specifying any default or defaults other than those set forth in clause (I) Tenant has not cured the default or defaults so specified, or provided that if Tenant has taken immediate steps to cure such violation or failure is remediable but is default and the nature of such a nature that it cannot be remedied within such the default requires more than thirty (30) day perioddays to cure, then Tenant shall, so long as Tenant is diligently pursuing a cure, have such additional time as is reasonably necessary; or (b) if any assignment shall be made by Tenant for such longer period the benefit of creditors; or (not to exceed ninety (90c) days subject to Force Majeure ) as may reasonably if Tenant’s leasehold interest shall be required, provided that Tenant promptly commences and diligently pursues such remedy to completiontaken on execution; or (d) if a lien or other involuntary encumbrance shall be filed against Tenant's abandonment ’s leasehold interest or vacation Tenant’s other property, including said leasehold interest, and shall not be discharged within ten (10) days after Tenant has knowledge of the Premises; (e) an Event of Bankruptcy as specified same, unless Tenant has timely contested such encumbrance in Article XXII good faith and has furnished to Landlord security reasonably acceptable to Landlord with respect to Tenant’s obligation to discharge such lien or encumbrance; or (e) if a petition shall be filed by Tenant for liquidation, or for reorganization or an arrangement under any general partner provision of Tenant (a "General Partner") any bankruptcy law or any Guarantorcode as then in force and effect; or (f) if an involuntary petition under any of the provisions of any bankruptcy law or code shall be filed against Tenant and such involuntary petition shall not be dismissed within thirty (30) days thereafter; or (g) if a custodian or similar agent shall be authorized or appointed to take charge of all or substantially all of the assets of Tenant's ; or (h) if Tenant dissolves or shall be dissolved or shall liquidate or shall adopt any plan or commence any proceeding, the result of which is intended to include dissolution or liquidation.
21.2 If there ; or (i) if any order shall be an Event entered in any proceeding by or against Tenant decreeing or permitting the dissolution of DefaultTenant or the winding up of its affairs; or (j) if Tenant shall fail to pay any installment of Annual Fixed Rent or Additional Rent when due, including an Event Tenant shall cure such default within the grace period provided in clause (a) (I) above (or with Landlord’s approval after the expiration of such grace period) and Tenant shall, within the next year following the date such initial defaulted payment was first due, fail more than twice to pay any installment of Annual Fixed Rent or Additional Rent when due, then, and in any of such cases indicated in clauses (a) through (j) hereof (collectively and individually, a “Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate of Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated”), Landlord may, but shall in addition to and not be obligated toin derogation of any remedies for any preceding breach of covenant, relet the Premises immediately or at any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure time thereafter give notice to relet the Premises or collect any rent due upon such reletting. Whether or not Tenant terminating this Lease is terminatedand the Term hereof, which notice shall specify the date of termination, whereupon on the date so specified, the Term of this Lease and all of Tenant’s rights and privileges under this Lease shall expire and terminate but Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causehereinafter provided.
Appears in 1 contract
Samples: Lease (Liquid Holdings Group, Inc.)
Default of Tenant. 21.1 Each 14.1 If Tenant shall be late in the payment of any installment of Fixed Rent or any regular monthly installment of Supplemental Rent and if such breach shall continue for seven (7) days, Tenant shall be conclusively deemed to be in material breach of this Lease. Notwithstanding the foregoing, before Landlord through legal action re-enters and resumes possession of the following Demised Premises as a result of such non-payment, Landlord agrees that with respect to the first three (3) occasions of such default in any twelve month period Landlord shall constitute an Event serve Tenant with written notice of Default: the default and allow Tenant one (a1) Tenant's failure business day from the date of service of the notice to make cure the default by payment by wire transfer or bank check of the full amount due with any late fee which may have accrued as a result of such default.
14.2 If Tenant shall be late in the payment of any payment of the Base Supplemental Rent (other than regular monthly installment payments covered by Section 14.1) or any Additional Rent, Additional Rent or shall fail to post any other sum portion of the Security Deposit or otherwise breach Article 25 of this Lease, and if such breach shall continue for fifteen (i) within five (515) days after Landlord shall have served Tenant with an invoice or written notice from of the amount due, Tenant shall be conclusively deemed to be in material breach of this Lease. Notwithstanding the foregoing, before Landlord through legal action re-enters and resumes possession of the Demised Premises as a result of such non-payment, Landlord agrees that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received with respect to the first three (3) such defaults in any twelve month period Landlord Notices shall serve Tenant with written notice of the default and allow Tenant one (1) business day from the date of service of the notice to cure the default by payment by wire transfer or bank check of the full amount due with any late fee which may have accrued as a result of such default.
14.3 If, during such Lease Year within five the term of this Lease, (5a) days after such payment's due date; Tenant shall make an assignment for the benefit of creditors, or (b) a voluntary petition be filed by Tenant under any law having for its purpose the adjudication of Tenant a bankrupt, or the extension of time for payment, composition, adjustment, modification, settlement or satisfaction of the liabilities of Tenant or the reorganization or liquidation of Tenant's failure to , or (c) a receiver be appointed for the property of Tenant by reason of the insolvency or alleged insolvency of Tenant, or if (d) any department of the state or federal government or any officer thereof or duly authorized Trustee or Receiver shall take possession of the Premises business or property of the Tenant or if (e) an involuntary petition be filed against Tenant under any law having for its purpose the adjudication of Tenant as a bankrupt, or for the liquidation of Tenant; and (except with respect to items (a) and (b), supra, which shall be non-curable events of default) if same have not been removed, cured or discharged within sixty (60) days days; or if (f) any Receiver or Trustee pursuant to any bankruptcy or insolvency law, whether Federal or State, shall attempt to thereafter assign this Lease to any party or attempt to sublet all or any part of the Lease Commencement Date; Demised Premises, then Tenant shall be conclusively deemed to be in material breach of this Lease.
14.4 If (ca) Tenant's violation Tenant shall default in the performance or failure to perform or observe observation of any other covenant agreement or conditioncondition (other than payment of Rent or Additional Rent) on its part to be performed or observed, which violation or failure continues for a period of and if Tenant shall fail to cure said default within thirty (30) days after notice thereof from Landlordof said default by Landlord (or, or if such violation or failure is remediable but is in the case of such a nature that it candefault not be remedied susceptible of a cure within such thirty (30) day days, if Tenant shall fail to commence a cure within thirty (30) days and diligently complete such cure within a reasonable time); or (b) if Tenant shall make default with respect to any other Lease between it and Landlord; or (c) in the event Tenant is more than seven (7) days late in respect to any three (3) months' Rent due hereunder, which three (3) months fall within a consecutive 6-month period, then then, in any of said cases, (notwithstanding any waiver of any former breach of agreement or condition or waiver of the benefit hereof or consent in a former instance), Tenant shall be conclusively deemed to have materially breached this Lease.
14.5 In the event of any material breach by Tenant, Landlord may (a) permit Tenant to remain in possession and sxx for such longer period all Rents, damages, attorneys’ fees and collection costs as due; or (not b) terminate this Lease by written declaration, but allow Tenant to exceed ninety remain in possession as Tenant at Will and sxx Tenant for all Rents, damages, attorneys’ fees and collection costs as due; or (90c) days subject Landlord may immediately, or at any time thereafter, through legal process, re-enter and resume possession of the Demised Premises and remove all persons and property therefrom either by summary dispossess proceedings or by a suitable action or proceeding at law or in equity, or in the case of permanent abandonment of the Demised Premises by the Tenant by peaceful self-help, without being liable for any damages therefor (no re-entry by the Landlord shall be deemed an acceptance of a surrender of this Lease unless accompanied by a written declaration signed by Landlord to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completioneffect); or (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may upon re-entertaking possession, terminate Tenant's right of possession and take possession of keep the Premises. The provisions of this Article shall operate as a notice Demised Premises vacant (subject to quit, any other notice to quit or reasonable efforts at mitigation of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under ’s damages) and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent Rents, damages, attorneys’ fees and other sums due under collection costs as hereinafter provided; or (e) upon re-taking possession Landlord may, as Tenant’s agent and without effecting Tenant’s liability hereunder, relet the terms and conditions whole or any part of the Demised Premises for a period equal to, or greater, or less than the remainder of the then term of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for at such rent rental and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not deem reasonable, to any lessee or lessees which it may deem suitable and satisfactory for any use and purpose which it may deem appropriate. In no event shall the Landlord be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's in any respect for failure to relet the Demised Premises or collect any rent due upon in the event of such reletting, for failure to collect the rent thereunder. Whether or not Any sums received by the Landlord on a reletting for any monthly installment of rent in excess of the Rent reserved in this Lease is terminatedshall belong to Landlord. Without liability to Tenant or any other party and without constituting a constructive or actual eviction, Landlord may suspend or discontinue furnishing or rendering to Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred work then being performed by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought , wherever Landlord is obligated to collect any such damages for any month(s)furnish or render the same, and such suits shall not so long as Tenant is in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of material default under this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeLease.
Appears in 1 contract
Default of Tenant. 21.1 Each of (i) If Tenant shall default in its obligations to pay the following shall constitute an Event of Default: (a) Tenant's failure to make any payment of the Base Rent, Annual Fixed Rent or Additional Rent or any other sum (i) charges under this Lease within five (5) days notice from Landlord that of the date when due or shall default in complying with its obligations under Subsection 6.1.10 of this Lease and if any such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within default shall continue for five (5) days after such payment's due date; notice pursuant to Section 10.1 thereof from Landlord, or (bii) Tenant's failure to take possession of the Premises if as promptly as possible but in any event within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, Landlord to Tenant specifying any default or defaults other than those set forth in clause (i) Tenant has not cured the default or defaults so specified; or if such violation or failure is remediable but default is of such a nature that it cannot be remedied cured within such thirty (30) days using best efforts, if Tenant does not commence the curing of such default within such thirty-day periodperiod and thereafter diligently and continuously prosecute such cure to completion within such additional time as may be necessary, then for such longer period (not but in no event to exceed ninety sixty (9060) days subject from the date of Landlord’s notice to Force Majeure ) as may reasonably be requiredTenant specifying the default, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (fiii) Tenant's dissolution or liquidation.
21.2 If if there shall be an Event a default of DefaultTenant’s obligations under any lease between Landlord and Tenant for any space in the Building, including an Event which default continues beyond applicable notice and cure periods then, and in any of such cases indicated in clauses (i), (ii) and (iii) hereof (collectively and individually, a “Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate of Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated”), Landlord may, but shall in addition to and not be obligated toin derogation of any remedies for any preceding breach of covenant, relet the Premises immediately or at any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure time thereafter give notice to relet the Premises or collect any rent due upon such reletting. Whether or not Tenant terminating this Lease is terminatedand the term hereof, which notice shall specify the date of termination, whereupon on the date so specified, the term of this Lease and all of Tenant’s rights and privileges under this Lease shall expire and terminate but Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causehereinafter provided.
Appears in 1 contract
Samples: Lease Agreement (AxoGen, Inc.)
Default of Tenant. 21.1 (a) Each of the following events shall constitute an Event of a "Default: (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum " by Tenant under this Lease:
(i) If Tenant fails to pay any Rent when due, and Tenant does not cure the failure within five ten (510) days after Landlord shall have given notice from Landlord that to Tenant of such payment has not been made ("Landlord Notice") or failure.
(ii) if If Tenant has received three (3) such Landlord Notices during such Lease Year fails to comply with any of its other obligations of this Lease, and Tenant does not cure the failure within five (5) days after such payment's due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or failure to perform or observe any other covenant or condition, which violation or failure continues for a period of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have given notice to Tenant of such failure.
(iii) If Tenant shall make an assignment for the rightbenefit of creditors; file or acquiesce to a petition in any court (whether or not pursuant to any statute of the United States or of any state) in any bankruptcy, at reorganization, composition, extension, arrangement or insolvency proceedings; or make an application in any such proceedings for an acquiesce to the appointment of a trustee or receiver for it or all of any portion of its sole optionproperty.
(iv) If any petition shall be filed against Tenant, to terminate this Lease. In addition, with which Tenant acquiesces in any court (whether or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession not pursuant to any statute of the Premises. The provisions of this Article shall operate as a notice to quitUnited States or any state) in any bankruptcy, any other notice to quit reorganization, composition, extension, arrangement or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other insolvency proceedings, including re-entry and possession, as may Tenant shall thereafter be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to adjudicated a bankrupt; such petition shall be done and performed approved by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether any such court; or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but such proceedings shall not be obligated todismissed, relet discontinued or vacated within sixty days.
(v) If, any proceeding, pursuant to the Premises application of any person other than Tenant to which Tenant acquiesces a receiver or trustee shall be appointed for Tenant for all or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations portion of the Premises) as Landlord, in its sole discretion, may determine, but Landlord property of Tenant and such receivership or trusteeship shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon set aside within sixty days after such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causeappointment.
Appears in 1 contract
Default of Tenant. 21.1 Each If any one or more of the following shall constitute an Event of Default: occurs:
(a1) Tenant's failure to make any a rent payment of the Base Rent, Additional Rent or any other sum payment due from Tenant to Landlord shall be and remain unpaid in whole or in part for more than fifteen (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (515) days after such payment's same is due dateand payable; (b2) Tenant's failure to take possession Tenant shall violate or default on any of the other covenants, agreements, stipulations or conditions herein or in any other agreement between Landlord and Tenant relating to the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's and such violation or failure to perform or observe any other covenant or condition, which violation or failure continues defaults shall continue for a period of thirty (30) days after written notice thereof from Landlord, or if Landlord of such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completiondefault; (d3) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of if Tenant (a "General Partner") or any Guarantorguarantor of this Lease Agreement shall commence or have commenced against Tenant or any guarantor proceedings under a bankruptcy, receivership, insolvency or similar types of action; or (f4) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of DefaultLandlord may, including an Event of Default prior to without process, re-enter immediately into the Rent Commencement Date, then Landlord shall have the right, Leased Premises and remove all persons and property therefrom and at its sole option, cancel this Lease as to terminate this Lease. In additionall future rights of Tenant, with or without terminating this Leaseand regain, Landlord may re-enterrepossess, terminate Tenant's and enjoy the Premises, and Tenant hereby expressly waives the right of possession and take possession any notice in writing of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter entry and also the right of restoration to possession of the Leased Premises being hereby expressly waived. If necessaryafter re-entry or after judgment for possession thereof, Tenant shall be responsible for, in addition to the rentals and other sums agreed to be paid hereunder, the cost of any necessary maintenance, repair, restoration, relenting (including related cost of removal or modification of tenant improvements) or cure as well as reasonable attorney's fees incurred or awarded in any suit or action instituted by Landlord may proceed to recover enforce the provisions of this Lease Agreement, regain possession of the Premises under and by virtue or the collection of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If rentals due Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and performed by Landlord shall cease, without prejudice, however, to Landlord's right to recover from Tenant all rent and other sums due under the terms and conditions of this Lease. Whether or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain liable for any Base Rent, Additional Rent or damages which may be due or sustained prior to such default, all costs, fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) incurred by Landlord in pursuit of its remedies and in renting the Premises to others from time to timehereunder. Tenant shall also be liable to Landlord for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder payment of the Lease Term, less a late charge in the amount of rental10% of rental installment or other sum due Landlord hereunder if said payment has not been received within ten (10) days from the date said payment becomes due and payable, if any, which or cleared by Landlord's bank within six (6) business days after deposit. Each night or remedy of Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages provided for in this Lease Agreement shall be computed cumulative and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not in addition to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but every other right or remedy provided for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation of this Lease under any present Agreement now or future law, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for any causehereafter existing at law or in equity or by statute or otherwise.
Appears in 1 contract
Samples: Lease Amendment (Editek Inc)
Default of Tenant. 21.1 Each 11.01 In the event of the following shall constitute an Event any failure of Default: Tenant to pay and all rental due hereunder within ten (a) Tenant's failure to make any payment of the Base Rent, Additional Rent or any other sum (i) within five (5) days notice from Landlord that such payment has not been made ("Landlord Notice") or (ii) if Tenant has received three (3) such Landlord Notices during such Lease Year within five (510) days after such payment's the same shall become due date; (b) Tenant's failure to take possession of the Premises within sixty (60) days of the Lease Commencement Date; (c) Tenant's violation or any failure to perform or observe any other covenant terms, conditions or condition, which violation or failure continues for a period covenants of thirty (30) days after notice thereof from Landlord, or if such violation or failure is remediable but is of such a nature that it cannot be remedied within such thirty (30) day period, then for such longer period (not to exceed ninety (90) days subject to Force Majeure ) as may reasonably be required, provided that Tenant promptly commences and diligently pursues such remedy to completion; (d) Tenant's abandonment or vacation of the Premises; (e) an Event of Bankruptcy as specified in Article XXII with respect to Tenant, any general partner of Tenant (a "General Partner") or any Guarantor; or (f) Tenant's dissolution or liquidation.
21.2 If there shall be an Event of Default, including an Event of Default prior to the Rent Commencement Date, then Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant's right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, any other notice to quit or of Landlord's intention to re-enter the Premises being hereby expressly waived. If necessary, Landlord may proceed to recover possession of the Premises under and by virtue of the laws of the Commonwealth of Virginia, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant's right of possession, then everything contained in this Lease to be done and observed or performed by Tenant for more than twenty (20) days after the written notice delivered to Tenant of Tenant’s default, then in any one of said event, Landlord, besides other rights or remedies that Landlord may have, shall ceasehave the right to declare this Lease terminated and shall have the immediate right of reentry and may remove all persons and property form the Leased Premises and such property may be removed and stored in a public warehouse or elsewhere at the costs and for the account of Tenant, without prejudice, however, evidence of notice or resort to Landlord's right to recover from Tenant all rent legal process and other sums due under the terms and conditions without being deemed guilty of this Lease. Whether trespass or not this Lease and/or Tenant's right of possession is terminated, Landlord may, but shall not be obligated to, relet the Premises or any part thereof, alone or together with other premises, for such rent and upon such terms and conditions (which may include concessions or free rent and alterations of the Premises) as Landlord, in its sole discretion, may determine, but Landlord shall not be liable for, nor shall Tenant's obligations be diminished by reason of, Landlord's failure to relet the Premises or collect any rent due upon such reletting. Whether or not this Lease is terminated, Tenant nevertheless shall remain becoming liable for any Base Rent, Additional Rent loss or damages which may be due or sustained prior to such occasioned thereby.
11.02 Upon a declaration of a default, as set forth above, Landlord shall have the right to accelerate the rental payments due hereunder so that all costsunpaid rents shall become immediately due and payable.
11.03 Tenant hereby pledges and assigns to Landlord a security interest in all furniture, fixtures, inventory and other personal property to secure the performance of Tenant’s obligations hereunder.
11.04 The rights set forth above are collective in nature and are not mutually exclusive of any other remedy contained herein or at law.
11.05 Tenant shall pay all reasonable attorney’s fees and expenses (including without limitation reasonable attorneys' fees, brokerage fees, expenses incurred in placing the Premises in rentable condition and tenant finish necessitated to obtain the new tenant) court costs incurred by Landlord in pursuit of its remedies enforcing and in renting the Premises to others from time to time. Tenant shall also be liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent, Additional Rent and other amounts due Landlord which would have become due during the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent payable as a result of any failure of such other person to perform any of its obligations), which damages shall be computed and payable in monthly installments, in advance, on the first day of each calendar month following Tenant's default and continuing until the date on which the Lease Term would have expired but for Tenant's default. Separate suits may be brought to collect any such damages for any month(s), and such suits shall not in any manner prejudice Landlord's right to collect any such damages for any subsequent month(s), or Landlord may defer any such suit until after the expiration of the Lease Term, in which event the cause of action shall be deemed not to have accrued until the expiration of the Lease Term: or
(b) an amount equal to the Present Value Damages. "Present Value Damages" shall be an amount equal to the present value (as of the date of Tenant's default) of the difference between (i) the Base Rent and Additional Rent that would have become due through the date on which the Lease Term would have expired but for Tenant's default, and (ii) the fair market rental value(as reasonably determined by Landlord) of the Premises for the same period, which Present Value Damages shall be payable to Landlord in a lump sum on demand. For purpose of this Section, present value shall be computed by discounting at a rate equal to one (1) whole percentage point above the discount rate then in effect at the Federal Reserve Bank of New York. Tenant waives any right of redemption, re-entry or restoration of the operation provisions of this Lease under or in any present litigation in which Landlord shall, without its fault, become involved on account of this Lease and in which Landlord shall be successful. In the event of default of any term, condition or future lawcovenant of this Lease by Landlord, including any such right which Tenant would otherwise have if Tenant shall be dispossessed for entitled to seek any causeremedies available at law or in equity, including, but not necessarily limited to, specific performance, damages, and Tenant, at its sole election, may upon such default by Landlord, cancel the within Lease, Landlord shall pay all reasonable attorney’s fees and court costs incurred by Tenant in enforcing any provisions of this Lease or in any litigation in which Tenant shall, without its fault, become involved on account of this Lease and in which Tenant shall be successful.
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