Defaults Remedies. If Tenant fails to pay the Rent, or any installment thereof, within five (5) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlord.
Appears in 5 contracts
Samples: Lease Agreement (MPW Industrial Services Group Inc), Lease Agreement (MPW Industrial Services Group Inc), Lease Agreement (MPW Industrial Services Group Inc)
Defaults Remedies. If Tenant fails to pay the Rent, or any installment thereof, within five (5) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. 12.1 In the event Seller shall fail to perform its obligations hereunder or to make full Closing in accordance with the terms hereof, Purchaser shall be entitled to: (i) waive the breach or default and proceed to Closing in accordance with the provisions of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, this Agreement without reduction of the liability of Tenant under the terms and provision Purchase Price; (ii) xxx Seller for specific performance of this LeaseAgreement; or (iii) terminate this Agreement by written notice to Seller, receive a return of the Deposit. In addition Notwithstanding the foregoing, nothing in this Agreement shall be deemed to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it limit Purchaser’s rights at law or in equityequity under any applicable terms of this Agreement that survive a Closing or termination of this Agreement.
12.2 If Purchaser shall fail to perform its obligations hereunder to make full Closing in accordance with the terms hereof when required to do so hereunder and all Conditions Precedent to Closing have been satisfied, all of which then the Deposit shall be cumulative: forfeited by Purchaser and retained by Seller as liquidated damages and as Seller’s sole remedy hereunder (it being expressly acknowledged that the amount and extent of damages suffered by Seller in such case would be difficult or impossible to terminate determine with exactitude) and Purchaser shall thereby be released and discharged from any and all further liability or obligation hereunder. Notwithstanding the foregoing, nothing in this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease Agreement shall be deemed to have been waived limit Seller’s rights at law or in equity under any applicable terms of this Agreement that survive a Closing or termination of this Agreement.
12.3 Depositing with the party conducting Closing of the Purchase Price in cash, the deed of conveyance, and such other funds and/or documents as are required of either party by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord the terms of a lesser amount than the Rent herein stipulated this Agreement, shall be deemed to be other than on account good and sufficient tender of performance of the earliest stipulated Rent, nor terms hereof.
12.4 A default by either party under this Agreement shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent default by the taking and selling of same party under the Asset Purchase Agreement which shall entitle the non-defaulting party to the remedies available to such property in non-defaulting party under the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of LandlordAsset Purchase Agreement.
Appears in 4 contracts
Samples: Real Estate Purchase Agreement, Real Estate Purchase Agreement, Real Estate Purchase Agreement
Defaults Remedies. If Tenant fails to pay the Rent, or any installment thereof, within five (5A) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated Lessee shall be deemed to be other than on account in default hereunder upon the occurrence of any of the earliest stipulated Rent, nor following events (“Events of Default”):
(1) Lessee shall fail to make any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon due hereunder within ten (10) days notice served upon Tenant by posting upon after its due date; (2) Lessee shall fail to perform or observe any other term, covenant, or condition of this Lease Agreement; (3) Lessee shall have abandoned the Premises Equipment or such lien may be enforced is no longer entitled to keep the Equipment at its delivered location; (4) any representation or warranty of Lessee shall have been untrue in any material respect when made, or, any information submitted by Lessee to Lessor shall be false or misleading in any material respect; or (5) Lessee shall have defaulted under any other lawful agreement with Xxxxxxxx Scotsman.
(B) Upon the occurrence of an Event of Default, Lessor may declare this Lease Agreement to be in default, and thereafter may exercise any one or more of the following remedies: (1) Declare the rent for the Term, any Extension Period thereof and all other unpaid rent, fees, taxes, and charges including but not limited to delay/storage fees and/or termination charges under this Lease Agreement and/or any other agreement with Xxxxxxxx Scotsman immediately due and payable; (2) Repossess, retake, and/or retain any or all of the Equipment free of all rights and claims of Lessee without notice, without legal process or judicial intervention, and without releasing Lessee of any term, covenant or condition provided herein; (3) Sell or otherwise dispose of any or all of the Equipment, whether or not in Lessor’s possession, in a commercially reasonable manner at and apply the option net proceeds of Landlord.such disposition, after deducting all costs, to the obligations of Lessee with Lessee remaining liable for any deficiency; (4) Terminate this Lease Agreement and/or any other agreement with Xxxxxxxx Scotsman; and/or
Appears in 3 contracts
Samples: Lease Agreement, Lease Agreement, Lease Agreement
Defaults Remedies. If Tenant 8.1 The following shall constitute events of default ("Events of Default") hereunder:
(a) Lessee fails to pay make any payments to Lessor in the Rentcase of Rent within 5 business days and in all other cases within 10 business days of, when due hereunder;
(b) any representation or warranty of Lessee contained herein or in any document furnished to Lessor in connection herewith is incorrect or misleading in any material respect when made and (i) such misrepresentations cannot be cured within 15 business days, or (ii) if curable within 15 business days, Lessee does not proceed promptly to effect such cure.
(c) Lessee fails to observe or perform any installment thereofother covenant, within five (5) agreement or warranty made by Lessee hereunder or under any document delivered pursuant hereto and such failure continues for 10 business days after the same becomes due and payablewritten notice thereof to Lessee;
(d) any default occurs under any other agreement for borrowing money or receiving credit under which Lessee or any guarantor or general partner of Lessee may be obligated as borrower, lessee or guarantor, if Tenant violates or fails or neglects to keep and perform any such default (i) consists of the covenants, conditions, and agreements herein contained on failure to pay any indebtedness when due or (ii) gives the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession holder of the Premises and indebtedness the right to re-enter accelerate the same without demand indebtedness;
(e) Lessee, any guarantor of Rent this Lease or demand any general partner of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises Lessee makes an assignment for the benefit of Tenantcreditors or files any petition or action under any bankruptcy, reorganization, insolvency or moratorium law, or any other law or laws for the relief of, or relating to, debtors;
(f) any guarantor of this Lease breaches or fails to perform any covenant in liquidation and dischargeits guaranty, or any letter of credit required by this Lease expires or terminates without Lessor's consent, or Lessor receives notice that the letter of credit will not be renewed in whole accordance with its terms;
(g) an involuntary petition is filed under any bankruptcy statute against Lessee, any guarantor of this Lease or in partany general partner of Lessee, as the case may beor any receiver, trustee, custodian or similar official is appointed to take possession of the liability properties of Tenant under the terms and provision Lessee, any guarantor of this Lease. In addition Lease or any general partner of Lessee, unless such petition or appointment is set aside or withdrawn or ceases to be in effect within 60 days from the foregoing remediesdate of the filing or appointment; or
(h) Lessee, Landlord will also have any guarantor of this Lease or any general partner of Lessee (i) liquidates, dissolves, dies or enters into any partnership, joint venture (other than in its ordinary course of business), or enters into any consolidation, merger or other combination, or sells, leases or disposes of a substantial portion of its business or assets, (ii) the following remedies event referred to in clause (i) results in a material adverse change in Lessee's net worth, debt to equity ratio, or financial condition and (iii) Lessee is the extent permitted surviving entity.
8.2 If any Event of Default occurs, Lessor, at its option, may:
(a) proceed by law and all other remedies afforded to it appropriate court action or actions either at law or in equity, all to enforce performance by Lessee of which shall be cumulative: the applicable covenants of this Lease or to recover damages for the breach thereof; or
(b) by notice in writing to Lessee terminate this Lease, whereupon all rights of Lessee to use the Units shall terminate, but Lessee shall remain liable as hereinafter provided; to declare due and payable thereupon Lessor may enter upon the premises of Lessee or other premises where any of the Units may be and take possession of all Rent for the unexpired Term as or any of such Units and when thenceforth hold the same becomes free from any right of Lessee, its successors or assigns, but Lessor shall, nevertheless, have a right to recover from Lessee any and all amounts that under the terms of this Lease may be then due and payable or that may have accrued to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing such termination (computing the rent for any number of days less than a full rent period by multiplying the rent for such full rental period by a compounding five percent fraction of which the numerator is such number of days and the denominator is the total number of days in such full rent period) and also to recover forthwith from Lessee: (5%i) per as damages for loss of the bargain and not as a penalty, a sum, with respect to each Unit, that equals (x) the present value, at the time of such termination, of the entire unpaid balance of all rent for the Unit that would otherwise have accrued hereunder from the date of such termination to the end of its Lease Year. No waiver Term minus (y) the then present value of the rent Lessor reasonably estimates to be obtainable for the Unit during such period, such present value to be computed in each case by discounting at a rate equal to the then judgment rate of interest fixed under California law, compounded at the same frequency as rent is payable hereunder, from the respective dates upon which rent would have been payable hereunder had the Lease not been terminated and (ii) any damages and expenses in addition thereto that Lessor sustains because of the breach of any covenant, condition, representation or agreement herein warranty contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of in this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent rent. Lessee hereby waives any rights now or hereafter conferred by statute or otherwise that may require Lessor to sell, lease or otherwise use any Unit in mitigation of Lessor's damages upon all of the goodsany default by Lessee, wares, chattels, fixtures, furniture and other personal property of Tenant which except as may be set forth in this Section 8.2, or upon the Premisesthat may otherwise limit or modify any of Lessor's rights or remedies under Section 8.2.
8.3 Lessee agrees to pay all allocated time charges, Tenant hereby specifically waiving any costs and all exemptions allowed by law; such lien may be enforced on the nonpayment expenses of any installment of Rent by the taking internal counsel for Lessor and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner attorneys' fees, expenses or out-of-pocket costs incurred by Lessor in enforcing this Lease.
8.4 The remedies herein provided in favor of Lessor shall not be deemed exclusive, but shall be cumulative, and shall be in addition to all other remedies in its favor existing at law or in equity.
8.5 If Lessee fails to perform any of its agreements contained herein, Lessor may (if practical, after notice to Lessee) perform such agreement, and Lessee shall pay the option of Landlordexpenses incurred by Lessor in connection with such performance upon demand.
Appears in 3 contracts
Samples: Lease Agreement (Gardenburger Inc), Lease Agreement (Gardenburger Inc), Lease Agreement (Gardenburger Inc)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to pay observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the Rent, default on or any installment thereof, within five (5) before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the same default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes due and payableinsolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if Tenant violates a petition in bankruptcy or fails for reorganization or neglects to keep and perform for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a xxxx in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the covenantsreal or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, conditionsinsolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawful, and agreements herein contained on the part of Tenant remove all persons and all or any property, by action at law or otherwise in accordance with law, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if relet the Premises becomes vacant and relet all or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession any part(s) of the Premises and for Tenant’s account. Tenant agrees to re-enter the same without pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANTsuch reletting. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision reletting without termination of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it may at law or in equity, all of which shall be cumulative: any time thereafter elect to terminate this Lease; to declare due and payable all Rent Lease for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to such previous breach;
(iii) To accelerate the Rent for the remainder whole or any part of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent and declare the same to be immediately due and payable;
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be determined required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by projecting into the future the Additional Rent payable on the date Landlord of default increasing any breach by Tenant shall be a compounding five percent (5%) per Lease Year. No waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any covenant, condition, rights and remedies with respect to such or agreement herein contained any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall operate as not constitute a waiver of the covenant, condition Landlord’s right to recover damages hereunder. No right or agreement itself, remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any subsequent breach thereof. No provision of this Lease other right or remedy provided herein or by law, but each shall be deemed cumulative and in addition to have been waived by Landlord unless such waiver shall be every other right or remedy given herein or now or hereafter existing at law or in writing signed by Landlordequity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the Rent herein stipulated total amount due Landlord under this Lease shall be deemed to be other than on account of the earliest stipulated Rentaccount, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's ’s right to recover the balance of such Rent due, or Landlord’s right to pursue any other remedy provided available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease. , the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord shall have and Tenant waive the right to a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed trial by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced jury in any other lawful manner at action or proceeding based upon or related to, the option subject matter of Landlordthis Lease.
Appears in 3 contracts
Samples: Lease Agreement (Free for All, Inc), Lease Agreement (Free for All, Inc), Lease Agreement (Free for All, Inc)
Defaults Remedies. If Tenant fails (A) Lessee shall be deemed to pay be in default hereunder upon the Rentoccurrence of any of the following events (“Events of Default”):
(1) Lessee shall fail to make any payment due hereunder within ten (10) days after its due date; (2) Lessee shall fail to perform or observe any other term, covenant, or condition of this Lease Agreement; (3) Lessee shall have abandoned the Equipment or is no longer entitled to keep the Equipment at its delivered location; (4) any installment thereofrepresentation or warranty of Lessee shall have been untrue in any material respect when made, within five or, any information submitted by Lessee to Lessor shall be false or misleading in any material respect; or (5) days after Lessee shall have defaulted under any other agreement with Xxxxxxxx Scotsman.
(B) Upon the same becomes occurrence of an Event of Default, Lessor may declare this Lease Agreement to be in default, and thereafter may exercise any one or more of the following remedies: (1) Declare the rent for the Term, any Extension Period thereof and all other unpaid rent, fees, taxes, and charges including but not limited to delay/storage fees and/or termination charges under this Lease Agreement and/or any other agreement with Xxxxxxxx Scotsman immediately due and payable; (2) Repossess, retake, and/or retain any or if Tenant violates or fails or neglects to keep and perform any all of the covenantsEquipment free of all rights and claims of Lessee without notice, conditionswithout legal process or judicial intervention, and agreements herein contained on without releasing Lessee of any term, covenant or condition provided herein; (3) Sell or otherwise dispose of any or all of the part of Tenant to be kept Equipment, whether or not in Lessor’s possession, in a commercially reasonable manner and performed within thirty (30) days after receipt of written notice apply the net proceeds of such failure or neglectdisposition, or if the Premises becomes vacant or desertedafter deducting all costs, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession obligations of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable Lessee with Lessee remaining liable for any and all damage, deficiency deficiency; (4) Terminate this Lease Agreement and/or any other agreement with Xxxxxxxx Scotsman; and/or (5) Exercise any other right or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded remedy available to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it Lessor at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No Lessor’s waiver of any breach Event of any covenant, condition, or agreement herein contained Default shall operate as not constitute a waiver of the covenant, condition any other Event of Default or agreement itself, or a waiver of any subsequent breach thereof. No provision term or condition of this Lease Agreement. Lessee shall pay all Lessor’s legal fees and all other costs and expenses incurred by reason of any Event of Default. No right or remedy referred to herein is intended to be deemed exclusive and each may be exercised concurrently or separately and from time to have been waived by Landlord unless such waiver time. In the event Lessor shall repossess or retake the Equipment and there shall be in writing signed or attached to such Equipment any property owned by Landlord. No payment by Tenant or receipt by Landlord in the custody or control of a lesser amount than the Rent herein stipulated shall be deemed Lessee, then Lessor is hereby authorized to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling take possession of such property in the same manner as in the case for a period of chattel mortgages on default thereunder; said sale ten (10) days. Thereafter, if any such property is to made upon not claimed and taken by Lessee within ten (10) days notice served upon Tenant after Lessor repossesses or retakes the Equipment, such property will be deemed abandoned by posting upon Lessee, and Lessor shall have the Premises or such lien may be enforced in any other lawful manner at the option right to dispose of Landlordit.
(C) LESSEE AND LESSOR WAIVE ALL RIGHT TO TRIAL BY JURY OF ALL CLAIMS, DEFENSES, COUNTERCLAIMS, AND SUITS OF ANY KIND ARISING FROM OR RELATING TO THIS LEASE AGREEMENT.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
Defaults Remedies. If 24.01. Each of the following shall constitute an “Event of Default” under this Lease:
(i) the failure of Tenant fails to pay the any Fixed Base Rent, Additional Rent or any installment thereofother charge required to be paid by Tenant hereunder, within five (5) days after when the same becomes shall be due and payable, and such failure shall continue beyond the Grace Period;
(ii) the failure by Tenant to perform or if Tenant violates observe any covenant or fails or neglects requirement of this Lease not specifically referred to keep and perform any of the covenants, conditionsin this Section, and agreements herein contained on the part of Tenant to be kept and performed within such failure continuing for thirty (30) days after receipt of written notice of from Landlord to Tenant specifying the covenant or requirement that Tenant failed to perform or observe, provided, however, that if such failure or neglectcannot reasonably be cured within said thirty (30) day period, then Tenant shall have such longer period (but in no event longer than ninety (90) days) as may reasonably be necessary to cure such failure provided Tenant promptly commences and thereafter diligently proceeds in good faith to cure the default;
(iii) the commencement by Tenant of a case in bankruptcy, or if under the Premises becomes vacant insolvency laws of any State naming Tenant as the debtor;
(iv) the commencement by anyone other than the Tenant of a case in bankruptcy or desertedunder the insolvency laws of any State naming Tenant as the debtor, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession which case shall not have been discharged within sixty (60) days of the Premises and to re-enter commencement thereof;
(v) the same without demand making by Tenant of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises an assignment for the benefit of creditors or any other arrangement involving all or substantially all of its assets under any state statute;
(vi) the appointment of a receiver or trustee for the Tenant or for all or any portion of the property of Tenant in any proceeding, which receivership shall not have been set aside within sixty (60) days of such appointment;
(vii) the refusal by Tenant to take possession of the Demised Premises upon completion of the Tenant Improvements or the vacation and abandonment of the Demised Premises by Tenant, permitting the same to remain unoccupied and unattended; or
(viii) if Tenant shall be in liquidation and discharge, in whole or in part, as the case may be, violation of the liability of Tenant under the terms and provision transfer, assignment and/or sublet provisions of this Lease.
24.02. In addition to At any time after the foregoing remediesoccurrence of an Event of Default, Landlord will also have may give written notice to Tenant specifying such Event(s) of Default and stating that this Lease and the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which Term shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until three (3) business days after the Term without thereby prejudicing its rights; to accelerate giving of such notice, unless Tenant cures the Rent for Event of Default. At the remainder expiration of such three (3) business days, if Tenant has not cured the Event of Default, this Lease and the Term and declare it all immediately due of the right, title and payable [with a present value discount two (2) whole percentage points below interest of the prime rate published in The Wall Street Journal on Tenant hereunder shall wholly cease, terminate and expire, and Tenant shall quit and surrender the date Landlord elects said remedy]; Demised Premises to the Landlord. Notwithstanding such termination, surrender, and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period Tenant's right, title, and interest, Tenant's liability and responsibility under all of the provisions of this Lease (except in an emergency, when no notice or cure period will be necessary or afforded), all at including for the cost of Tenant as Fixed Base Rent and Additional Rent payable upon demand. Tenant shall also pay which subsequently accrues and for all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be accrued but unpaid Fixed Base Rent and Additional Rent payable upon demand. In determining the Rent due for the balance as of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%the termination) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate and for damages as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfactionprovided for, and Landlord may accept such check or payment without prejudice calculated pursuant to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord Article 26 shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordcontinue.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement (Aralez Pharmaceuticals Inc.)
Defaults Remedies. If The occurrence of any one or more of the following events shall constitute an event of default under this Lease: (i) if Tenant fails shall fail to timely pay the Rent, any Rent or any installment thereof, within other sum required to be paid by Tenant under this Lease when due and such failure shall continue for more than five (5) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt of following written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of from Landlord, Tenant's right of possession will thereupon cease and terminateprovided, and to the extent permitted by law however, if Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount provides two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and notices of such failure within a twelve (12) month period, any subsequent failure to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending pay Rent when due within such 12 month period shall constitute a default or to end any existing default. In addition, Landlord may perform without any obligation which Tenant has failed of Landlord to perform after provide written notice to Tenant; or (ii) with respect to the expiration performance of or compliance with any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Termterms, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenantcovenants, condition, conditions or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision provisions of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be Lease, (other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in Additional Rent) shall not cure such failure or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon refusal within ten (10) days after the date of written notice served thereof from Landlord to Tenant; or (iii) if Tenant shall be adjudicated as bankrupt or shall make an assignment for the benefit of creditors or shall file a xxxx in equity or otherwise initiate proceedings for the appointment of a receiver of Tenant's assets, or shall file any proceedings in bankruptcy or for reorganization or an arrangement under any federal or state law, or if any proceedings in bankruptcy or for the appointment of a receiver shall be instituted by any creditor of Tenant under any state or federal law, and not dismissed within 60 days or if Tenant is levied upon or sold by sheriff's or xxxxxxxx'x or constable's sale or other legal process; or (iv) if Tenant by posting upon attempts to remove its property from the Demised Premises or other than in the ordinary course of business, the occurrence of any such lien may be enforced event to constitute an event of default and a breach under this Lease, and after having provided Tenant with ten (10) days written notice; then and in addition to any other lawful manner rights or remedies Landlord may have under this Lease and at law and in equity, Landlord shall have the option following rights:
A. To accelerate the whole or any part of Landlord.the Rent for the entire unexpired balance of the Term as well as any other charges, payments, costs and expenses herein agreed to be paid by
Appears in 2 contracts
Samples: Office Lease Agreement (Technest Holdings Inc), Office Lease Agreement (Technest Holdings Inc)
Defaults Remedies. If Tenant fails 8.1 The occurrence of any of the following events or conditions shall constitute an "Event of Default" under this Deed of Trust:
(a) Any failure to pay the Rent, any principal or interest or any installment thereof, within five other part of the Obligation when the same shall become due and payable and such failure continues for ten (510) business days after written notice thereof to Trustor. No notice, however, shall be required after maturity of any of the same becomes due and payable, Obligation.
(b) Any failure or if Tenant violates neglect to perform or fails or neglects to keep and perform observe any of the covenants, conditions, provisions or agreements of this Deed of Trust, the Note, and agreements herein that Environmental Indemnity Agreement (the "Indemnity Agreement"), dated of even date herewith by and between Trustor and Beneficiary, or any other document or instrument executed or delivered in connection with the Obligation (other than a failure or neglect described in one or more of the other provisions of this Paragraph 8.1) and such failure or neglect either (i) continues unremedied for a period of thirty (30) days after written notice thereof to Trustor, or (iii) can be remedied, although not within thirty (30) days even by prompt and diligent action, but such remedy is not commenced within thirty (30) days written notice after thereof to Trustor or is not diligently prosecuted to completion within a total of one hundred twenty (120) days from the date of such notice.
(c) Any warranty, representation or statement contained in this Deed of Trust, the Notes, the Indemnity Agreement, or any other document or instrument executed or delivered in connection with the Obligation, or made or furnished to Beneficiary by or on behalf of Trustor, that shall be or shall prove to have been materially false when made or furnished and such warranty, representation or statement (i) continues unremedied for a period of thirty (30) days after written notice thereof to Trustor, or (iii) can be remedied, although not within thirty (30) days even by prompt and diligent action, but such remedy is not commenced within thirty (30) days written notice after thereof to Trustor or is not diligently prosecuted to completion within a total of one hundred twenty (120) days from the date of such notice.
(d) The filing by Trustor, (or against Trustor or to which Trustor acquiesces or that is not dismissed within forty-five (45) days after the filing thereof) of any proceeding under the federal bankruptcy laws now or hereafter existing or any other similar statute now or hereafter in effect; the entry of an order for relief under such laws with respect to Trustor; or the appointment of a receiver, trustee, custodian or conservator of all or any part of Tenant the assets of Trustor.
(e) The insolvency of Trustor, or the execution by Trustor of an assignment for the benefit of creditors; or the convening by Trustor of a meeting of its creditors, or any class thereof, for purposes of effecting a moratorium upon or extension or composition of its debts; or the failure of Trustor to be kept and performed pay its debts as they mature; or if Trustor is generally not paying its debts as they mature.
(f) The admission in writing by Trustor that it is unable to pay its debts as they mature or that it is generally not paying its debts as they mature.
(g) The liquidation, termination or dissolution of Trustor or any such endorser or guarantor, if a corporation, partnership or joint venture.
(h) Any levy or execution upon, or judicial seizure of, any portion of the Trust Property, the Personal Property, or any other collateral or security for the Obligation.
(i) Any attachment or garnishment of, or the existence or filing of any lien or encumbrance other than any Permitted Exceptions against, any portion of the Trust Property, the Personal Property, or any other collateral or security for the Obligation, that is not removed or released within fifteen (15) days after its creation.
(j) The institution of any legal action or proceedings to enforce any lien or encumbrance upon any portion of the Trust Property, the Personal Property, or any other collateral or security for the Obligation, that is not dismissed within fifteen (15) days after its institution.
(k) The abandonment by Trustor of all or any part of the Trust Property.
(1) The existence of any encroachment upon the Trust Property that has occurred without the approval of Beneficiary that is not removed or corrected within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordcreation.
Appears in 2 contracts
Samples: Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (Nord Resources Corp), Deed of Trust (Nord Resources Corp)
Defaults Remedies. If Tenant fails to pay the Rent, or any installment thereof, within five (5) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform Lessee does any of the covenantsfollowing, conditionswhich shall constitute an event of default under this Lease Agreement:
(a) Shall be in default in the payment of any installment of rent for a period of ten (10) days and the Lessor has provided to Lessee by telephone, with written confirmation thereof, at least forty-eight (48) hours notice that its payment has not been received, and agreements if Lessee does not make prompt and complete payments as are required, upon receipt of such notice; or
(b) Defaults in any of the covenants or conditions herein contained on for ten (10) days following written notice to the part Lessee of Tenant to be kept the default/ and performed if Lessee does not remedy the default within thirty (30) days after receipt of written notice notification of such failure default or neglectdiligently pursue remedy of the default; or
(c) Abandons the Demised Premises or removes or attempts to remove Lessee's goods or property therefrom other than in the ordinary course of business without having first paid to Lessor in full all rent and charges that may have become due as well as all which will become due thereafter; or
(d) Becomes insolvent in any sense or makes an assignment for the benefit of creditors or offers a composition or settlement to creditors or calls a meeting of creditors for any such purpose, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any Federal or State act is filed by or against Lessee, or if a xxxx in equity or other proceeding is filed by any court for the Premises becomes vacant appointment of a receiver, trustee, liquidator, custodian, conservator or desertedsimilar official for any of Lessee's assets, or if any of the real or personal property of Lessee shall be levied upon by any sheriff, marshal, or constable, provided that any such proceeding shall not have been dismissed within sixty days (60) after the commencement of any such actions; then, and in each and every any such event, at the sole option of Landlord, Tenant's right Lessor;
(1) The whole balance of possession will thereupon cease rent and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a defaultcharges, whether or not suit is institutedpayable as rent, for the entire balance of the term herein reserved and any renewal or extension thereof, or any part of such rent and charges, and also all or any costs and sheriff's, xxxxxxxx'x or constable's commissions, whether chargeable to Lessor or Lessee, including watchman's wages, shall be taken to be due and payable and in arrears as if by the terms of this Lease Agreement said balance of rent and such other charges and expenses were on that day payable in advance; and/or
(2) The term created by this Lease Agreement shall terminate and become absolutely void, without notice and without any right on the part of Lessee to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken, and upon such termination, or, also if there be no termination, Lessor may, without notice or demand, enter the Demised Premises breaking open locked doors, if necessary, to effect entrance, without liability for damages for such entry or for the manner thereof, for the purpose of distraint or execution or to take possession of the Demised Premises to minimize the loss by reason of Lessee's default, and to take possession of and sell under distraint the goods or chattels found upon said premises (subject only to any written waiver executed by Lessor in accordance with Section 27.6 hereof). Whether or not any rent be due or unpaid, should Lessee at any time remove, or attempt or indicate an intention to remove, the goods or chattels from the premises other than in the ordinary course of business, Lessee authorizes Lessor to follow the same shall for a period of ninety days after such removal or attempted or intended removal and to take possession of and cause to be Additional Rent sold sufficient of such goods and chattels to meet the rent and charges in arrears, as well as payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check full term then remaining or any letter accompanying any check part thereof; and in addition to the above remedies or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlord.connection therewith,
Appears in 2 contracts
Samples: Lease Agreement (Blue Fish Clothing Inc), Lease Agreement (Blue Fish Clothing Inc)
Defaults Remedies. If Tenant fails Upon Pledgor's failure to pay or perform any of its obligations hereunder or under any of the Rentdocuments evidencing the Obligations when due, or upon the occurrence of a default or Event of Default as defined in any of such documents, the Lender may, at its option, from time to time, and notwithstanding any waiver or condonation at that time or at any other time, exercise any one or more of the rights and remedies of a secured party afforded by the Uniform Commercial Code, as from time to time in effect in the Commonwealth of Massachusetts, or afforded by the other statutory or decisional law of the Commonwealth of Massachusetts, or granted to the Lender under the terms of this Agreement or any other document evidencing or securing the Obligations, and Lender is hereby authorized to redeem the Collateral and apply the proceeds thereof, net of any penalties, to the outstanding Obligations. Without limiting the generality of the foregoing, the Pledgor expressly agrees that in any such event, the Lender, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or on the Pledgor or any other person (all and each of which demands, advertisements and/or notices are hereby expressly waived), may forthwith collect, receive, appropriate and realize on the Collateral, or any installment part thereof, within five (5) days after and forthwith sell, assign, give option or options to purchase, contract to sell or otherwise dispose of and deliver the same becomes due and payableCollateral, or if Tenant violates any part thereof, in one or fails more units, parcels, or neglects to keep and perform lots at one or more public or private sales, at any of the covenantsLender's offices or elsewhere, conditionson such terms and conditions as it may deem advisable and at such prices as it may deem appropriate, and agreements herein contained for cash or on credit or for future delivery without assumption of any credit risk, with the right to the Lender upon any such sale or sales, public or private, to purchase the whole or any part of said Collateral so sold. Any purchaser at any such sale or sales shall acquire the property sold absolutely free from any claim or right on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, thenPledgor, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and Pledgor hereby waives (to the extent permitted by law Landlord will be entitled to applicable law) all rights, redemptions, stays and appraisal rights which Pledgor now has, or may at any time in the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of lawfuture have, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process under any rule of law or otherwisestatute now existing or hereafter enacted. The net proceeds of any such collection, Tenant nevertheless agrees recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to remain answerable for the care, safekeeping or otherwise of any and all damage, deficiency of the Collateral or loss in any way relating to the rights of Rent which Landlord may sustain by such re-entrythe Lender hereunder, including reasonable attorneys' fees and court costs; and legal expenses, shall be applied to the payment of the Obligations in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, order as the case Lender may bedetermine, and, after all of the liability Obligations have been paid in full and after payment of Tenant under the terms and any other amount required by any provision of this Lease. In addition law, including (without limitation) Section 9-504(1)(c) of the Uniform Commercial Code, the balance (if any) of such proceeds shall be remitted to the foregoing remedies, Landlord will also have the following remedies to Pledgor or as otherwise required by a court of competent jurisdiction. To the extent permitted by law applicable law, the Pledgor waives all claims, damages and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for demands against the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder Lender arising out of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, retention or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance sale of the Term, all Additional Rent shall be determined by projecting into Collateral unless resulting from such Lender's willful misconduct. The Pledgor agrees that the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount Lender need not give more than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days days' notice served upon Tenant (which notice shall be deemed given on the earlier of mailing or receipt) of the time and place of any public sale or of the time after which a private sale or other intended disposition is to take place and that such notice is reasonable notification of such matters. No notification need be given to the Pledgor if it has signed after default a statement renouncing or modifying any right to notification of sale or other intended disposition. The Lender may, without notice or publication, adjourn any public or private sale, or cause such sale to be adjourned from time to time by posting upon the Premises or such lien may be enforced in any other lawful manner announcement at the option time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which such sale is so adjourned. Pledgor shall remain liable for any deficiency if the net proceeds of Landlordany sale or disposition of the Collateral are insufficient to pay all Obligations.
Appears in 1 contract
Samples: Demand Loan Agreement (Micro Component Technology Inc)
Defaults Remedies. If Tenant fails to pay the Rent, or any installment thereof, within five (5) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlord.
Appears in 1 contract
Defaults Remedies. If In the event Tenant fails to pay shall at any time a default in the Rentpayment of Rent herein reserved, or of any installment thereof, within five other sum required to be paid by Tenant under this lease when due and such failure or refusal shall continue for ten (510) days after the same becomes due and payablefollowing receipt of written notice from Landlord of such failure or refusal, or if Tenant violates in the performance of or fails or neglects to keep and perform compliance with any of the terms, covenants, conditions, conditions or provisions of this lease and agreements herein contained on the part of Tenant to be kept and performed shall not cure such failure or refusal within thirty (30) days after receipt written notice thereof from Landlord to Tenant, or if Tenant shall be adjudicated a bankrupt or shall make an assignment for the benefit of creditors or shall file a xxxx in equity or otherwise initiate proceedings for the appointment of a receiver of Tenant's assets, or shall file any proceedings in bankruptcy or for reorganization or an arrangement under any federal or state law, or if any proceedings in bankruptcy or for the appointment of a receiver shall be instituted by any creditor of Tenant under any state or federal law, or if Tenant is levied upon or sold by sheriff's or xxxxxxxx'x or constable's sale or other legal process, or if Tenant attempts to remove its property from the Demised Premises other than in the ordinary course of business, the occurrence of any such event to constitute an event of default and a breach under this Lease, and after having provided Tenant with ten days written notice, then and in addition to any other rights or remedies Landlord may have under this Lease and at law and in equity, Landlord shall have the following rights:
A. To accelerate the whole or any part of the Rent for the entire unexpired balance of the Term as well as all other charges, payments, costs and expenses herein agreed to be paid by Tenant. Any Rent or other charges, payments, costs and expenses if so accelerated shall be deemed due and payable as if they were on that date payable in advance; and/or
B. To enter the Demised Premises without further demand or notice and proceed to the sale of the goods, chattels and personal property there found, to levy the Rent and/or charges herein payable as Rent, and Tenant shall pay all costs and officers' commissions, including watchmen's wages and sums chargeable to Landlord, and in such case all costs, officers' commissions and other charges shall immediately attach and become part of the claim of Landlord for Rent, and any tender of Rent without said costs, commissions and charges made, after the issuance of a warrant of distress, shall not be sufficient to satisfy the claim of Landlord; and/or
C. To re-enter the Demised Premises and remove all persons and all or any property therefrom, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwise, without being liable to indictment, prosecution or damages therefore, and repossess and enjoy the Demised Premises, together with all additions, alterations and improvements. Upon recovering possession of the Demised Premises by reason of or based upon or arising out of a default on the part of Tenant, Landlord may, at Landlord's option, either terminate this Lease or make such alterations and repairs as may be necessary in order to relet the Demised Premises and rent the Demised Premises or any part or parts thereof, either in Landlord's name or otherwise, for a term or terms which may at Landlord's discretion seem best; upon each such reletting all rents 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 reasonable costs and expenses of such reletting, including reasonable brokerage fees and reasonable attorney's fees and all reasonable 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 it may become due and payable hereunder. If such rentals received from such reletting during any month shall be less than that to be paid during that month to Landlord, such deficiency shall be calculated and paid monthly. No such re-entry or taking possession of the Demised Premises or the making of alterations and/or improvements thereto or the reletting thereof shall be construed as an election on the part of Landlord to terminate this Lease unless written notice of such failure intention be given to Tenant.
D. To terminate this Lease and the Term hereby created without any right on the part of Tenant to waive the forfeiture by payment of any sum due or neglectby other performance of any condition, term or if the Premises becomes vacant or desertedcovenant broken, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law whereupon Landlord will shall be entitled to the possession of the Premises and recover, in addition to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees sums and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises damages for the benefit violation of Tenant, 's default in liquidation and discharge, in whole or in part, as an amount equal to the case may be, amount of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due reserved for the balance of the Term, as well as all Additional Rent other charges, payments, costs and expenses therein agreed to be paid by Tenant, all of which amount shall be determined immediately due and payable from Tenant to Landlord. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy herein or by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Yearlaw provided but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No waiver by Landlord of any breach by Tenant of any covenantof Tenant's obligations, condition, agreements or agreement covenants herein contained shall operate as be a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision or of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant any obligation, agreement or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rentcovenant, nor shall any endorsement or statement on forbearance by Landlord to seek a remedy for any check breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any letter accompanying any check or payment as Rent be deemed an accord subsequent breach. Landlord represents that if tenant is making reasonable efforts to cure defaults in good faith and satisfactionstated deadlines expire, and Landlord may accept such check or payment without prejudice will grant reasonable leniency in meeting deadlines, not to Landlord's right to recover exceed thirty (30) days.
E. In consideration of the balance of such Rent or pursue any other remedy provided in benefits accruing under this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving covenants and agrees that in the event of any actual or alleged failure, breach, or default hereunder by Landlord:
(a) the sole and all exemptions allowed by law; such lien exclusive remedy shall be against the interest of the Landlord in the Building;
(b) neither the Landlord nor any shareholder of Landlord shall be personally liable with respect to any claim arising out of or related to this Lease;
(c) no shareholder of the Landlord shall be sued or named as a party in any suit or action;
(d) no service of process shall be made against any shareholder of Landlord;
(e) any judgment granted against any shareholder of Landlord may be enforced on the nonpayment of vacated and set aside at any installment of Rent by the taking time as if such judgment had never been granted;
(f) both Landlord and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien any shareholder may be enforced in any other lawful manner at the option of Landlordinvoke and enforce these covenants and agreements.
Appears in 1 contract
Samples: Lease Agreement (Startec Global Communications Corp)
Defaults Remedies. If Tenant fails (A) Lessee shall be deemed to pay be in default hereunder upon the Rentoccurrence of
(B) Upon the occurrence of an Event of Default, Lessor may declare this Agreement to be in Default, and thereafter may exercise any one or more of the following remedies: (1) declare the rent for the Term and all other unpaid rent, fees, taxes and charges under this Agreement immediately due and payable; (2) Repossess, retake and/or retain any or all of the Equipment free of all rights and claims of Lessee without notice, without legal process, or judicial intervention, and without releasing Lessee of any installment thereofterm, within five covenant or condition provided herein: (3) Sell or otherwise dispose of any or all of the Equipment, whether or not in Lessor’s possession, in a commercially reasonable manner and apply the net proceeds of such disposition, after deducting all costs, to the obligations of Lessee, with Lessee remaining liable for any deficiency; (4) Terminate this Agreement; and/or (5) days after the same becomes due and payable, Exercise any other right or if Tenant violates or fails or neglects remedy available to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it Lessor at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No Lessor’s waiver of any breach Event of any covenant, condition, or agreement herein contained Default shall operate as not constitute a waiver of the covenant, condition any other Event of Default or agreement itself, or a waiver of any subsequent breach thereofterm or condition of this Agreement. Lessee shall pay all Lessor’s legal fees and all other costs and expenses incurred by reason of any Event of Default. No provision of this Lease right or remedy referred to herein is intended to be exclusive, and each may be exercised concurrently or separately and from time to time. In the event Lessor shall be deemed to have been waived by Landlord unless such waiver repossess or retake the Equipment, and there shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord attached to such Equipment any property owned by, or in the custody or control of a lesser amount than the Rent herein stipulated shall be deemed Lessee, then Lessor is hereby authorized to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling take possession of such property in the same manner as in the case for a period of chattel mortgages on default thereunder; said sale ten (10) days. Thereafter, if any such property is to made upon not claimed and taken by Lessee within ten (10) days notice served upon Tenant after Lessor repossesses or retakes the Equipment, such property shall be deemed abandoned by posting upon Lessee, and Lessor shall have the Premises right to dispose of it.
(C) Lessee and Lessor waive all right to trial by jury of all claims, defenses, counterclaims and suits of any kind arising from or such lien may be enforced in any other lawful manner at the option of Landlordrelating to this Agreement.
Appears in 1 contract
Samples: Vendor Agreement
Defaults Remedies. If Tenant fails to pay the Rent, or any installment thereof, within five (5a) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform The occurrence of any of the covenantsfollowing shall constitute a default by Tenant under this Lease, conditionseach an “Event of Default;”
(i) if Tenant shall fail to pay any sum payable to Landlord hereunder when due, and agreements herein contained on the part of Tenant to be kept and performed within thirty such default shall continue uncured for more than ten (3010) days after receipt of written notice that the same is due;
(ii) if Tenant shall fail to perform or observe any of such failure the other covenants, terms or neglectconditions contained in this Lease for more than forty-five (45) days after written notice from Landlord, or if such longer period as is reasonably required to correct any such default, provided that Tenant promptly commences and diligently continues to effectuate a cure; or
(iii) the Premises becomes vacant filing of a petition by or desertedagainst Tenant for adjudication as a bankruptcy or insolvency or for its reorganization or for the appointment pursuant to any local, thenstate or federal bankruptcy or insolvency law of a receiver or trustee of Tenant’s property; or, and in each and every such eventan assignment by Tenant for the benefit of creditors; or, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the taking possession of the Premises and property of Tenant by any local, state or federal governmental officer or agency or court-appointed official for the dissolution or liquidation of Tenant or for the operating, either temporary or permanent, of Tenant’s business; provided, however, that if any such action is commenced against Tenant the same shall not constitute a default if Tenant causes the same to be dismissed, stayed or discharged within ninety (90) days after the filing of same.
(b) Upon the occurrence of an Event of Default, Landlord may:
(i) re-enter the same without demand of Rent Premises and remove all persons and all or demand of possession any property therefrom, either by summary dispossession proceedings or by any suitable action or proceeding at law, and may forthwith proceed to recover repossess and enjoy the Premises, together with all additions, alterations and improvements. Upon recovering possession of the Premises by process reason of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In or based upon or arising out of an Event of Default on the event part of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such caseTenant, Landlord reserves full powermay, which is hereby acceded to by Tenantat Landlord’s option, either terminate this Lease or make such alterations and repairs as may be reasonably necessary in order to relet the Premises and relet the Premises or any part or parts thereof, either in Landlord’s name or otherwise, for a term or terms which may at Landlord’s option be less than or exceed the benefit period which would otherwise have constituted the balance of the term of this Lease and upon such other terms and conditions as in Landlord’s sole discretion may seem advisable and to such person or persons as may in Landlord’s discretion seem best.
(ii) terminate this Lease and the term hereby created without any right on the part of Tenant to waive the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; whereupon Landlord shall be entitled to recover damages for violation of Tenant, ’s obligations
(c) No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy herein or by law provided but each shall be cumulative and in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all every other remedies afforded to it right or remedy given herein or now or hereafter existing at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable equity or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two by statute.
(2d) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred No waiver by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach by Tenant of any covenantof Tenant’s obligations, condition, agreements or agreement covenants herein contained shall operate as be a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision or of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant any obligation, agreement or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rentcovenant, nor shall any endorsement or statement on forebearance by Landlord to seek a remedy for any check breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordsubsequent breach.
Appears in 1 contract
Samples: Lease and Asset Transfer Agreement
Defaults Remedies. Section 15.01. If, during the Term, any one or more of the following acts or occurrences (any one of such occurrences or acts being hereinafter called an Event of Default) shall happen:
(a) Tenant shall default in making any payment of Basic Rent or any Additional Rent for more than ten (10) days after same were due and payable. If Tenant fails fails, on two (2) separate occasions in any twelve (12) month period during the Term hereof, to pay make payment of the RentBasic Rent and/or any Additional Rent and/or late charge on or before the due date, then, whether or not Tenant ultimately makes and Landlord accepts the required payment after the due date, such failure shall entitle Landlord, upon or at any time after such second (2nd) separate occasion, to pursue the remedies provided in this Article, said circumstances being hereby declared a default no longer susceptible of being cured or removed by Tenant; or
(b) Tenant shall default in the performance of or compliance with any of the other covenants, agreements, terms or conditions of this Lease to be performed by Tenant (other than any default curable by payment of money), and such default shall continue for a period of twenty (20) days after notice thereof from Landlord to Tenant, or, in the case of a default which cannot with due diligence be cured within twenty (20) days, Tenant shall fail to proceed promptly after the giving of such notice and with all due diligence to cure such default and thereafter to prosecute the curing hereof with all due diligence (it being intended that as to a default not susceptible of being cured with due diligence within twenty (20) days, the time within which such default may be cured shall be extended for such period as may be reasonably necessary to permit the same to be cured with all due diligence); or
(c) Tenant or any guarantor of this Lease shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any installment thereofpetition or answer seeking any reorganization, composition, readjustment or similar relief under any present or future bankruptcy or other applicable law, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver, or liquidator of Tenant or any guarantor of this Lease or of all or any substantial part of its properties or of all or any part of the Demised Premises;
(d) If, within five sixty (560) days after the same becomes due and payablefiling of an involuntary petition in bankruptcy against Tenant or any guarantor of this Lease, or the commencement of any proceeding against Tenant or such guarantor seeking any reorganization, composition, readjustment or similar relief under any law, such proceeding shall not have been dismissed, or if, within sixty (60) days after the appointment, without the consent or acquiescence of Tenant or such guarantor, of any trustee, receiver or liquidator of Tenant or such guarantor, or of all or any part of the Demised Premises, such appointment shall not have been vacated or stayed on appeal or otherwise, or if, within sixty (60) days after the expiration of any such stay, such appointment shall have been vacated, or if, within sixty (60) days after the taking possession, without the consent or acquiescence of Tenant or such guarantor, of the property of Tenant, or of such guarantor by any governmental office or agency pursuant to statutory authority for the dissolution or liquidation of Tenant or such guarantor, such taking shall not have been vacated or stayed on appeal or otherwise; or
(e) Tenant abandons or surrenders the Demised Building (as distinguished from ceasing operations at the Demised Premises, which is not a default hereunder). Then upon the occurrence of any such Event of Default, and during the continuance thereof, Landlord may, at its option, notwithstanding the fact that Landlord may have any other remedy hereunder or at law or in equity, by notice to Tenant, designate a date, not less than ten (10) days after the giving of such notice, on which this Lease shall terminate; and thereupon, on such date, the Term of this Lease and the estate hereby granted shall expire and terminate with the same force and effect as if the date specified in such notice was the date hereinbefore fixed for the expiration of the Term of this Lease, and all rights of Tenant violates or fails or neglects hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided. Additionally, Tenant agrees to keep pay, as Additional Rent, all reasonable attorney’s fees and perform other expenses incurred by Landlord in enforcing any of the covenantsobligations of Tenant under this Lease (if it is the prevailing party in any such action), conditionsthis covenant to survive the expiration or sooner termination of this Lease.
Section 15.02. If this Lease is terminated as provided in Section 15.01, or as permitted by law, Tenant shall peaceably quit and surrender the Demised Building to Landlord, and agreements if Tenant does not so quit and surrender the Demised Building to Landlord, Landlord may commence an action for possession of the Premises or other legal proceedings, and otherwise exercise all of its remedies under applicable law, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant by virtue of any law or an order of any court shall be entitled to possession or to remain in possession of the Demised Premises. Nothing herein contained shall limit or prejudice the right of Landlord, in any bankruptcy or reorganization or insolvency proceeding, to prove for and obtain as liquidated damages by reason of such termination an amount equal to the maximum allowed by any bankruptcy or reorganization or insolvency proceedings, or to prove for and obtain as liquidated damages by reason of such termination, an amount equal to the maximum allowed by any statute or rule of law whether such amount shall be greater or less than the excess referred to above.
Section 15.03. Following an Event of Default, Landlord shall have the right without notice to commence an action for possession of the Demised Building and otherwise exercise all of its remedies under applicable law, without being obligated to terminate the Lease and shall be entitled to repair the Demised Building in such manner as Landlord may deem necessary or advisable so as to put the Demised Building in the same condition as of the date hereof to make the same rentable, and shall have the right, pursuant to legal process, at Landlord’s option, to re-let the Demised Building or a part thereof, and Tenant shall pay to Landlord on demand all reasonable expenses incurred by Landlord in obtaining possession, and in repairing and putting the part Demised Building in and the same condition as of the date hereof and in reletting the same, including reasonable fees of attorneys, and all other reasonable expenses or commissions, and Tenant shall pay to Landlord upon the rent payment dates following the date of such re-entry and including the date for the expiration of the Term of this Lease in effect immediately prior to such re-entry, the sums of money which would have been payable by Tenant as Monthly Basic Rent and Additional Rent hereunder on such rent payment dates if Landlord had not re-entered and resumed possession of the Demised Premises, deducting only the net amount of Basic Rent and Additional Rent, if any, which Landlord shall actually receive (after deducting from the gross receipts the expenses, costs and payments of Landlord which in accordance with the terms of this Lease would have been borne by Tenant) in the meantime from and by any reletting of the Demised Premises, and Tenant shall remain liable for all sums otherwise payable by Tenant under this Lease, including but not limited to the expense of Landlord aforesaid, as well as for any deficiency aforesaid, and Landlord shall have the right from time to time to begin and maintain successive actions or other legal proceedings against Tenant for the recovery of such deficiency, expenses or damages or for a sum equal to any Monthly Basic Rent payment and Additional Rent. The obligation and liability of Tenant to pay the Term Basic Rent and the Additional Rent shall survive the commencement, prosecution and termination of any action to secure possession of the Demised Premises. Nothing herein contained shall be kept deemed to require Landlord to wait to begin such action or other legal proceedings until the date when this Lease would have expired had there not been an Event of Default.
Section 15.04. Tenant hereby waives all right of redemption to which Tenant or any person under it may be entitled by any law now or hereafter in force. Landlord shall use commercially reasonable efforts to mitigate its damages.
Section 15.05. In the event of any breach by Tenant of any of the agreements, terms, covenants or conditions contained in this Lease, Landlord shall be entitled to (i) seek to enjoin such breach or threatened breach in a court of competent jurisdiction and performed (ii) commence in a court of competent jurisdiction an action to invoke any right or remedy allowed at law or in equity or by statute for possession though summary dispossess proceedings. During the pendency of any proceedings brought by Landlord to recover possession by reason of default, Tenant shall continue all money payments required to be made to Landlord, and Landlord may accept such payments for use and occupancy of the Demised Premises. In such event, Tenant waives its right in such proceedings to claim as a defense that the receipt of such money payments by Landlord constitutes a waiver by Landlord of such default.
Section 15.06. In the event of any breach by Landlord of any of the agreements, terms, covenants or conditions contained in this Lease, and the same is not cured after twenty (20) days written notice to Landlord (or without notice in the case of an emergency), Tenant may, without being obliged, cure the breach and Landlord shall pay to Tenant, immediately upon demand, the reasonable, actual, out-of-pocket cost therefor, which payment obligation shall be subject to all remedies by law or otherwise for the collection of such obligation. Tenant shall not be entitled to deduct or set off such cost from Monthly Basic Rent, unless Landlord, after written demand for payment by Tenant, has not made payment to Tenant within thirty (30) days after receipt of written notice of such failure or neglectdemand. In addition, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will Tenant shall be entitled to the possession of the Premises enjoin such breach and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also shall have the following remedies right to the extent permitted by law and all other remedies afforded to it invoke any right or remedy allowed at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable equity or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordstatute.
Appears in 1 contract
Samples: Lease Agreement (Pc Connection Inc)
Defaults Remedies. If Tenant 8.1 The following shall constitute events of default ("Events of Default") hereunder:
(a) Lessee fails to pay the Rentmake any payments to Lessor when due hereunder;
(b) any representation or warranty of Lessee contained herein or in any document furnished to Lessor in connection herewith is incorrect or misleading in any material respect when made;
(c) Lessee fails to observe or perform any other covenant, agreement or warranty made by Lessee hereunder or under any document delivered pursuant hereto and such failure continues for 10 days after written notice thereof to Lessee;
(d) any default occurs under any other agreement for borrowing money or receiving credit under which Lessee or any installment thereofguarantor or general partner of Lessee may be obligated as borrower, within five lessee or guarantor, if such default (5i) days after consists of the same becomes failure to pay any indebtedness when due and payable, or if Tenant violates or fails or neglects to keep and perform any other obligation thereunder and (ii) gives the holder of the covenantsindebtedness the right to accelerate the indebtedness;
(e) Lessee, conditions, and agreements herein contained on the part any guarantor of Tenant to be kept and performed within thirty (30) days after receipt this Lease or any general partner of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises Lessee makes an assignment for the benefit of Tenantcreditors or files any petition or action under any bankruptcy, reorganization, insolvency or moratorium law, or any other law or laws for the relief of, or relating to, debtors;
(f) any guarantor of this Lease breaches or fails to perform any covenant in liquidation and dischargeits guaranty, in whole required by this Lease expires or in partterminates without Lessor's consent;
(g) an involuntary petition is filed under any bankruptcy statute against Lessee, as the case may beany guarantor of this Lease or any general partner of Lessee, or any receiver, trustee, custodian or similar official is appointed to take possession of the liability properties of Tenant under the terms and provision Lessee, any guarantor of this Lease. In addition Lease or any general partner of Lessee, unless such petition or appointment is set aside or withdrawn or ceases to be in effect within 60 days from the foregoing remediesdate of the filing or appointment; or
(h) Lessee, Landlord will also have the following remedies to the extent permitted any guarantor of this Lease liquidates, dissolves, or sells, leases or disposes of a substantial portion of its business or assets.
8.2 If any Event of Default occurs, Lessor, at its option, may:
(a) proceed by law and all other remedies afforded to it appropriate court action or actions either at law or in equity, all to enforce performance by Lessee of which shall be cumulative: the applicable covenants of this Lease or to recover damages for the breach thereof; or
(b) by notice in writing to Lessee terminate this Lease; , whereupon all rights of Lessee to declare due retain possession of and payable all Rent for use the unexpired Term Units shall terminate, but Lessee shall remain liable as hereinafter provided, and when the same becomes due and payable Lessor may, at its option, do any one or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder more of the Term following: (i) declare the aggregate Balance Due with respect to the Units and declare it all Other Charges immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published and recover any damages and expenses in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred addition thereto Lessor sustains by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance reason of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, representation or agreement herein warranty contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of in this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of rent; (ii) enforce the Rent security interest given hereunder pursuant to the Uniform Commercial Code or any other law; (iii) enter upon all the premises where any of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which Units may be and take possession of all or any of such Units; and (iv) require Lessee to return the Units as provided in or upon the Premises, Tenant hereby specifically waiving Section 9.
8.3 Lessor shall have any and all exemptions allowed rights given to a secured party by law; , and may, but is not required to, sell the Units in one or more sales. Lessor may purchase the Units at such lien may be enforced sale. Lessee acknowledges that sales for cash or on credit to a wholesaler, retailer or user of the nonpayment of any installment of Rent by the taking and selling Units, or at public or private auction, are all commercially reasonable. The proceeds of such property sale shall be applied in the same manner as in following order: First, to the case reasonable expenses of chattel mortgages on default thereunder; said retaking, ----- holding, preparing for sale is to made upon ten (10) days notice served upon Tenant by posting upon and selling, including the Premises or such lien may be enforced in allocated time charges, costs and expenses of internal counsel for Lessor and any other lawful manner attorneys' fees and expenses incurred by Lessor; Second, to the amounts, except those specified ------ below, which under the terms of this Lease are due or have accrued; Third, to ----- late charges; and Fourth, to the aggregate Balance Due. Any surplus shall be ------ paid to the person or persons entitled thereto. If there is a deficiency, Lessee will promptly pay the same to Lessor.
8.4 Lessee agrees to pay all reasonable allocated time charges, costs and expenses of internal counsel for Lessor and any other attorneys' fees, expenses or out-of-pocket costs incurred by Lessor in enforcing this Lease.
8.5 The remedies herein provided in favor of Lessor shall not be deemed exclusive, but shall be cumulative, and shall be in addition to all other remedies in its favor existing at law or in equity.
8.6 If Lessee fails to perform any of its agreements contained herein, Lessor may perform such agreement, and Lessee shall pay the option of Landlordexpenses incurred by Lessor in connection with such performance upon demand.
Appears in 1 contract
Samples: Machinery and Equipment Pledge Agreement (Tarrant Apparel Group)
Defaults Remedies. If Tenant fails 25.01. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by TENANT:
(a) The failure by TENANT to make any payment of Rent or any other payment required to be made by TENANT hereunder to LANDLORD or to pay the RentImpositions, or any installment thereofas and when due, within five where such failure shall continue for a period of ten (5) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (3010) days after receipt of written notice thereof from LANDLORD to TENANT;
(b) The failure by TENANT to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by TENANT, other than as described in Paragraph (a), (c), (d) and (e) herein, where such failure or neglectshall continue for a period of thirty (30) days after written notice thereof from LANDLORD to TENANT; provided, however, that if the nature of TENANT’S default is such that more than thirty (30) days are reasonably required for its cure, then TENANT shall not be deemed to be in default if TENANT commences such cure within said period and thereafter diligently prosecutes such cure to completion; or
(i) The making by TENANT, or by any guarantor of TENANT’S obligations under this Lease, of any general arrangement or assignment for the benefit of creditors; (ii) TENANT or TENANT’S guarantor becoming a “debtor” as defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, in the case of a petition filed against TENANT or TENANT’S guarantor, the same is dismissed within sixty (60) days); (iii) the appointment of a trustee or receiver to take possession of substantially all of TENANT’S assets located at the Demised Premises or of TENANT’S interest in this Lease, where possession is not restored to TENANT within thirty (30) days; or (iv) the attachment, execution or other judicial seizure of substantially all of TENANT’S assets located a the Demised Premises or of TENANT’S interest in this Lease, where such seizure is not discharged within thirty (30) days; provided, however, in the event that any provision of this Paragraph 25.1(d) is contrary to any applicable law, such provision shall be of no force or effect.
(d) Any guarantor of this Lease is in default under any guaranty of this Lease.
(e) A material failure by TENANT to perform in a manner consistent with the standard for Better Private Golf Clubs where such performance is required under this Lease, where such failure shall continue for a period of thirty (30) days after written notice thereof from LANDLORD to TENANT; provided, however, that if the Premises becomes vacant nature of TENANT’S default is such that more than thirty (30) days are reasonably required for its cure, then TENANT shall not be deemed to be in default if TENANT commences such cure within said period and thereafter diligently prosecutes such cure to completion. For purposes this Section 25.01(e), a material failure of TENANT shall mean a significant failure in TENANT’s performance and not isolated instances of employee neglect or desertedof service failures. The provisions of this subsection (e) shall not apply to all of TENANT’s obligations to maintain, then, repair and in each and every such event, at operate the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and Facilities; only those obligations where the alleged default is failure to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT“consistent with Better Private Golf Clubs” as required under this Lease.
25.02. In the event of any material default or breach by TENANT as set forth in Section 25.01 hereof LANDLORD may, except as provided in Section 25.03, at any time thereafter, with or without notice or demand and without limiting LANDLORD in the exercise of any right or remedy which LANDLORD may have by reason of such default or breach:
(a) Terminate TENANT’S right to possession of the Facilities, with or without terminating the Lease, by any lawful means (including self-help), in which case TENANT shall immediately surrender possession of the Facilities to LANDLORD. No re-entry by process or retaking of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, possession of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted Demised Premises by law and all other remedies afforded to it at law or in equity, all of which LANDLORD shall be cumulative: construed as an election on its part to terminate this Lease unless a notice of termination is given to TENANT. Should LANDLORD elect to terminate this Lease; , LANDLORD shall be entitled to declare due and payable recover from TENANT all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder damages incurred by LANDLORD by reason of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performanceTENANT’S default including, injunctionbut not limited to, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all recovering possession of the Facilities; expenses (including, without limitationof reletting, reasonable attorneys' attorney’s fees) incurred by Landlord following a default, whether or not suit is institutedand; the same shall be Additional worth at the time of award by the court having jurisdiction thereof of the amount by which the unpaid Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall Term after the time of such termination exceeds the amount of such Rental loss for the same period that TENANT proves could be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent reasonably avoided;
(5%b) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of Maintain TENANT’S right to possession in which case this Lease shall be deemed to continue in effect whether or not TENANT shall have been waived by Landlord unless abandoned the Demised Premises. In such waiver event LANDLORD shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord entitled to enforce all of a lesser amount than LANDLORD’S rights and remedies under this Lease, including the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to LANDLORD under the laws or judicial decisions of the State of Ohio.
25.03. Notwithstanding anything in this Lease to the contrary, in the event that LANDLORD and TENANT are engaged in a bona fide dispute regarding a default under the Lease, LANDLORD shall not have any right to exercise the remedy provided in Section 25.02(a) or any right to enter upon and take possession of the Facilities or any right to expel or remove TENANT from the Facilities or any other right to disturb, restrict or remove TENANT from the use or possession of the Facilities unless and until LANDLORD undertakes the following procedures:
a) LANDLORD provides TENANT with written notice of the dispute;
b) LANDLORD shall submit the dispute to mediation and LANDLORD and TENANT shall undertake to resolve the dispute in mediation for a period of fifteen (15) days; and
c) In the event the dispute has not been resolved through mediation, LANDLORD shall submit the dispute to binding “final position” arbitration administered by the American Arbitration Association under its Rules for the Real Estate Industry, provided, however, that the arbitration shall be completed and the award of the arbitrator issued within sixty (60) days of submittal. Included in the arbitration award shall be a determination by the arbitrator of the prevailing and non-prevailing party. The arbitrators shall be empowered to order specific performance of this LeaseAgreement. Landlord The arbitrators’ decision may only consist of the final position of one of the parties and may not vary therefrom.
d) In the event that LANDLORD is the prevailing party in arbitration, TENANT shall have a lien for immediately remedy or otherwise cure the default in accordance with the award of the arbitrator. If TENANT shall fail to cure or remedy such default within fifteen (15) days of the arbitrator’s award, or, if the nature of TENANT’S remedy or cure is such that more than fifteen (15) days are reasonably required, TENANT shall fail to commence such cure within said period or fail to thereafter diligently prosecutes such cure to completion within the time period stipulated in the arbitration award, LANDLORD shall be entitled to immediately pursue the remedies provided in Section 25.02(a) or otherwise to enter upon and take possession of the Facilities or to expel or remove TENANT from the Facilities. With respect to any arbitration commenced in accordance with subsection c) above, the non-prevailing party shall pay and/or reimburse the prevailing party for: i) all costs, expenses and fees of the arbitrators, and ii) the prevailing party’s reasonable attorney fees and costs incurred with respect to the dispute from the submission to mediation until the award of the arbitrator. In addition, in the event that either party has been the non-prevailing party in arbitrations commenced in accordance with subsection c) above: (y) two (2) or more times on the same or substantially the same issue, or (z) three (3) or more times on any issue within any twenty-four (24) month period, then the non-prevailing party shall pay and or reimburse the prevailing party for: i) all costs, expenses and fees of the arbitrators, and ii) two (2) times the amount of the prevailing party’s reasonable attorney fees and costs incurred with respect to the dispute from the submission to mediation until the award of the arbitrator. The parties acknowledge that the provisions with respect to the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture attorney fees provided above are not a penalty but an attempt to discourage habitual noncompliance and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordfrivolous disputes.
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Defaults Remedies. If (a) Any one or more of the following events shall be a default by Tenant fails and constitute a breach of this Lease: (i) failure by Tenant to pay the Rent, or any installment thereof, within five (5) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep observe and perform any of the covenantscovenant, conditionscondition, and agreements agreement or obligation contained herein contained on the its part of Tenant to be kept and performed within performed, which continues for a period of thirty (30) days after receipt by Tenant of written notice from Landlord specifying the nature of such default in reasonable detail, provided, however, if any such default cannot be remedied within such thirty (30)-day period, then Tenant shall not be in default if Tenant proceeds to cure the default after receipt of such written notice and diligently and continuously pursues same through completion; or (ii) the failure to pay Rent or any other monetary obligation to Landlord when due continues for a period of more than ten (10) days after receipt by Tenant of written notice of such monetary default provided, however, that no such written notice shall be required for the second such failure to pay Rent or neglectany other monetary obligation when due for a period of more than ten (10) days after its due date during any calendar year. Upon the occurrence of an Event of Default and provided that all required notices have been given, or if Landlord may, without further notice to Tenant, terminate Tenant’s tenancy and proceed as required by the laws of the State of Arizona without accepting a surrender of the Premises becomes vacant or desertedaffecting Tenant’s liability for Rent and other charges due or future Rent and other charges becoming due hereunder. Upon any event of Default, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will shall be entitled to recover from Tenant, in addition to Rent and other charges equivalent to Rent, all other damages sustained by Landlord on account of the breach of this Lease, including, but not limited to, the costs, expenses and attorney fees incurred by Landlord in enforcing the terms and provisions hereof and in reentering and recovering possession of the Premises and to re-enter for the same without demand cost of Rent or demand of possession repairs, brokerage and may forthwith proceed to recover possession attorney fees connected with the reletting of the Premises by process Premises.
(b) Any right or remedy conferred on Landlord under this Lease shall not be deemed exclusive of lawany other rights or remedies that Landlord may have, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees Landlord’s rights and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: . All of Landlord’s rights and remedies may be exercised and enforced concurrently and whenever and as often as the occasion therefor arises.
(c) The failure of Landlord to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer insist upon strict performance of any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term terms, covenants, and declare it all immediately due and payable [with conditions herein shall not be deemed a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, Landlord’s other rights or agreement herein contained remedies and shall operate as not be deemed a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereofor default in any of the terms, covenants, and conditions herein contained. No provision surrender of the Premises shall be effected by Landlord’s acceptance of the keys thereto or acceptance of Rent therefor or by any other means whatsoever unless the same is evidenced by Landlord’s written acceptance of same as a surrender.
(d) In the event that it becomes necessary to enforce the covenants and provisions of this Lease through legal process, the prevailing party shall be deemed entitled to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord recover as an element of a lesser amount than damages the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rentreasonable costs, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfactionattorney fees, and Landlord may accept expenses incurred in such check or payment without prejudice to Landlord's right to recover litigation, including the balance costs of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordappeal.
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Defaults Remedies. If Tenant fails to pay Upon the Rent, or any installment thereof, within five (5) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform happening of any of the covenantsfollowing events or conditions (each, conditionsa “default”), and agreements herein contained on the part namely: (a) breach of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunctionpayment obligation, or other equitable relief covenant or liability contained or referred to prevent herein or in any threatened contract, instrument, document or impending default or to end agreement evidencing any existing default. In additionSecured Obligation, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' feesan Event of Default under the Note; (b) incurred any representation or warranty of Debtor in this Agreement proving false, misleading or erroneous in any material respect; (c) loss, theft, material damage, destruction, or encumbrance of or to the Collateral, or the making of any levy thereon or seizure or attachment thereof by Landlord following a default, whether legal process; (d) an attachment or not suit is instituted; the same execution or similar lien shall be Additional Rent payable upon demand. In determining the Rent due for the balance levied against any Collateral; (e) merger, consolidation, sale of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon substantially all of the goodsassets of Debtor; or (f) death, waresdissolution, chattelstermination of existence, fixturesinsolvency, furniture business failure, appointment of a receiver of any part of the property of, assignment for the benefit of creditors by, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Debtor, or any indorser, guarantor or surety of or for any Secured Obligation; thereupon, and as long as such default continues, Secured Party shall then have in any jurisdiction where enforcement hereof is sought, in addition to all other personal property rights and remedies, the rights and remedies of Tenant a secured party under the UCC or other applicable law, including without limitation, the right to take immediate possession of the Collateral without legal process, and for that purpose Secured Party may, so far as Debtor can give authority therefor, enter upon any premises on which the Collateral, or any part thereof, may be situated, and remove the same therefrom. Debtor will upon demand assemble the Collateral and make the Collateral available to Secured Party at a place and time designated by Secured Party which is reasonably convenient to both parties. No failure to exercise and no delay in or upon the Premisesexercising, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment part of Secured Party, any right or remedy accruing upon any default shall: (i) impair any right or remedy, (ii) waive or operate as an acquiescence to any default, or (iii) affect any subsequent default of the same or of a different nature. In the event the proceeds of any installment sale, collection or realization of Rent the Collateral are insufficient to satisfy the Secured Obligations in full, Debtor shall remain liable for the deficiency, including any interest thereon, together with any costs incurred by the taking and selling of Secured Party in collecting such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlorddeficiency.
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Defaults Remedies. If The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease of Tenant:
(a) The vacating or abandonment of the Premises by Tenant.
(b) The failure by Tenant fails to pay the Rent, make any payment of rent or any installment thereofother payment required to be made by Tenant hereunder, as and when due. Tenant shall be entitled to one written notice of late payment from Landlord per year before such an event shall constitute a default, provided Tenant makes payment within 10 days after receipt of said notice.
(c) The failure by Tenant to observe or perform any of the convenants, conditions or provisions of this Lease to be observed or performed by Tenant other than described in Paragraph (b) hereinabove, where such failure shall continue for a period of five (5) days after written notice thereof from Landlord to Tenant; provided, however, that if the nature of the Tenant's default is such that more than five (5) days are reasonably required for its cure, then Tenant shall not be deemed to be default if Tenant commences such cure within said five (5) day period and thereafter, diligently prosecutes such cure to completion.
(d) The making by Tenant of any general assignment or general arrangement for the benefit of creditors, filing by or against Tenant under any law relating to bankruptcy (unless in the case of a petition filed against Tenant, the same becomes due and payableis dismissed within sixty (60) days, the appointment of a Trustee or if Tenant violates or fails or neglects receiver to keep and perform any take possession of substantially all of the covenants, conditions, and agreements herein contained on Tenant's assets located in the part of Premises or the Tenant's interest in this Lease where possession is not restored to Tenant to be kept and performed within thirty (30) days after receipt or the attachment, execution of written notice other judicial seizure of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, substantially all Tenant's assets located at the option of Landlord, premises or Tenant's right of possession will thereupon cease and terminateinterest in this Lease, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANTwhere such seizure is not discharged within thirty (30) days. In the event of such material default or breach by Tenant, Landlord may at any time hereunder, with or without notice or demand, without limiting Landlord in the exercise of any other right or remedy which Landlord may have hereunder or pursuant to applicable law by reason of such default or breach, proceed in the following manner: Notwithstanding that Landlord prior to such breach or default shall have received rent or any payment, however designated, for the use of the Premises from or on behalf of Tenant or from any other person and regardless of and notwithstanding the fact that Landlord has or may have some other remedy under this Lease or by virtue hereof or by law or in equity, Landlord may immediately or at any time after any of such breach or default give to Tenant a notice of termination of this Lease, and, upon the giving of such notice, this Lease and the term and estate hereby granted shall expire and terminate upon the day so specified in such notice as fully and completely and with the same force and effect as if the day so specified were the date hereinbefore fixed for the normal expiration of the term of this Lease and all rights of Tenant under this Lease shall expire and terminate, but Tenant shall remain liable for damages as hereinafter provided. Upon any such termination of this Lease, Tenant shall peaceably quit and surrender the Premises to Landlord, and Landlord may, without further notice, enter upon, re-enter, possess and repossess itself thereof, by force, summary proceeding, ejectment, unlawful detainer, or otherwise, and may dispossess and remove Tenant and all other persons and property from the Premises, and may have, hold and enjoy the Premises and the right to receive all rental and other income and other income of and from the same. No re-entry by Landlord shall be deemed an acceptance of a surrender of this Lease. It is convenanted and agreed by Tenant that in the event of the termination of this Lease or of re-entry by Landlord, under any provisions of this Section or pursuant to law by reason of default hereunder on the part of Tenant, Tenant will pay to Landlord, as damages, at the election of Landlord, sums equal to the basic rental, additional rental and any other sums which would have been payable by Tenant has this Lease not so terminated, payable upon the days specified herein following such termination or such re-entry and until the date hereinabove set for the normal expiration of the full term hereby granted, provided, however, that if Landlord shall re-let the Premises during said period (it being understood that Landlord has no obligation to do so), Landlord shall credit Tenant with the net rents, if any, received by Landlord from such re-letting, the expenses incurred or paid by Landlord in terminating this Lease or of re-entering the Premises and of securing possession thereof, as well as the expenses of re-letting, including altering and preparing the Premises for new tenants, brokers' commissions and all other expenses chargeable against the Premises and the rental therefrom; but in no event shall Tenant be entitled to receive any excess of such net rents over the sums otherwise payable by Tenant to Landlord hereunder. Suit or suits for the recovery of such damages, or any installments thereof, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been terminated under the provisions of this paragraph, or under any provisions of law, or had Landlord not re-entered the Premises. Landlord shall also be entitled to collect from Tenant any reasonable attorney's fees arising out of Tenant's default hereunder. Landlord shall also be entitled to such other remedies as may be available at law or in equity in the event of default by Tenant hereunder. Tenant, for Tenant, and on behalf of any and all persons claiming by, through or under Tenant, including creditors of all kind, does hereby waive and surrender all right and privilege which they or any of them might have under or by reason of any present or future law to redeem the Premises or to have a continuance of this Lease for the term hereby demised after being dispossessed or ejected therefrom by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord after the termination of a lesser amount than the Rent this Lease as herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordprovided.
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Defaults Remedies. 9.1. The following shall constitute events of default under this Agreement (the “Events of Default”):
(a) If Tenant fails at any time title to pay any of the Rentparcels of the Property or the priority of the Deed of Trust are not satisfactory to Lender’s attorneys, in the exercise of their reasonable discretion, regardless of whether the lien, encumbrance or other question existed at the time of any prior advance; or
(b) If the Borrower assigns this Agreement or any interest therein, or if (except under the circumstances, if any permitted in the Deed of Trust) the Property is conveyed without the written consent of the Lender; or
(c) If any of the Improvements encroaches upon any street, easement, or upon adjoining property, or violates any setback restrictions, however created, or the requirements of any governmental authority having jurisdiction, or any installment thereofadjoining structure encroaches upon the Property or on any easement appurtenant thereto to an extent deemed material by Lender’s attorneys and the encroachment or violation is not removed or insured over by the title insurance company insuring the lien of the Deed of Trust; or
(d) If, in the judgment of the Lender, any of the Improvements are materially damaged by fire or otherwise and the insurance proceeds plus the unadvanced portion of the applicable Project Loan are insufficient to complete the Improvements and the Borrower fails to fund the deficit, if any, or fails to restore the Improvements in a timely manner; or
(e) If any material portion of the Project be taken by eminent domain; or
(f) If the Borrower or any Guarantor shall be involved in financial difficulty as evidenced, (i) by making an assignment for the benefit of its creditors; (ii) by filing a petition in bankruptcy for reorganization or for the adoption of an arrangement under the Bankruptcy Act (as now or in the future amended); (iii) by consenting to the appointment of a receiver or trustee for all or a substantial part of its property or to the filing of a petition against it under said Bankruptcy Act; (iv) by the entry of a court order appointing a receiver or trustee for all or a substantial part of its property or approving as filed in good faith a petition filed under said Bankruptcy Act (in both cases without the consent of the Borrower or such Guarantor), which order shall not be vacated, set aside or stayed within five sixty (560) days after from the same becomes due date of entry; or
(g) If the Borrower makes any changes in the approved Plans without the Lender’s prior written consent or otherwise fails within the Construction Period to construct the Improvements in accordance with the applicable Plans and payablein accordance with all laws, rules, regulations and requirements of all governmental authorities having or claiming jurisdiction, now existing or subsequently enacted; or
(h) Abandons the Project or fails to prosecute the construction of the Improvements with diligence and dispatch for a period time as Lender in its reasonable judgment shall determine is appropriate; or
(i) If the Borrower does not permit the Lender, or its agents, after reasonable notice to enter upon and inspect a Project; or
(j) If the Borrower fails to comply with any requirement of any governmental authority having jurisdiction over the Property; or
(k) If the Borrower executes any security agreement (other than as provided in the Deed of Trust) on any materials or fixtures used in the construction or operation of or placed upon the Project; or if Tenant violates any such materials or fixtures are purchased in conditional sale transactions or otherwise so that the ownership thereof will not vest unconditionally, in the Borrower, free from encumbrance, on delivery at the Project; or if the Borrower does not furnish to Lender any requested contracts, bills of sale, statements, receipted vouchers and agreements, or any of them, under which the Borrower claims title to such materials, fixtures and articles; or
(l) If the Borrower or any of the Guarantors fail to furnish the Lender with financial statements, such as balance sheets and profit and loss statements, and such other statements as the Lender may reasonably require to determine the financial condition of the Borrower or the Guarantors. (All such statements shall be prepared at the expense of the Borrower and shall be acceptable to the Lender in both form and substance.); or
(m) If the Borrower shall fail to make the investment in the Project as required by Section 5.3 of this Agreement; or
(n) If the Borrower or Guarantor breaches or fails or neglects to keep and perform any of the covenants, conditions, and stipulations, agreements herein or covenants contained on in this Agreement or the part other Loan Documents; or
(o) If the Borrower or Guarantor defaults under any other loans made to either of Tenant to be kept and performed within thirty (30) days after receipt them by Lender.
9.2. If an Event of written notice of such failure or neglectDefault occurs, or if the Premises becomes vacant or deserted, then, and in each and every such eventLender, at its option, may exercise one or more of the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the following remedies:
(a) take possession of the Premises and to re-enter the same without demand of Rent one or demand of possession and may forthwith proceed to recover possession more of the Premises by process Projects and complete construction of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees Improvements pursuant to remain answerable for Section 10;
(b) suspend and/or terminate any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded obligation to by Tenant, to relet make any further advances under a Project Loan and/or the Premises for Revolving Line;
(c) declare the benefit of Tenant, in liquidation and dischargeNote, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two payable;
(2d) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; recover from Borrower any and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all commercially reasonable expenses (including, without limitation, including reasonable attorneys' attorneys fees) incurred by Landlord following Lender in exercising its remedies or otherwise enforcing the terms of this Agreement or the other Loan Documents; and
(e) exercise any other remedies provided to Lender under the Loan Documents (an Event of Default being deemed a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance default under each of the Term, all Additional Rent shall be determined other Loan Documents).
9.3. The exercise by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver Lender of any breach of any covenant, condition, one or agreement herein contained shall operate as a waiver more of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy remedies provided in this LeaseAgreement or other Loan Documents shall not prevent the subsequent exercise by the Lender of any one or more of the other remedies provided to it. Landlord All remedies provided for in this Agreement or the other Loan Documents are cumulative and may, at Lender’s election, be exercised alternatively, successively or in any other manner and are in addition to any other rights provided by law.
9.4. Notwithstanding anything contained in this document to the contrary, Lender agrees that prior to the exercise of any of the remedies provided under this Agreement, Lender shall give Borrower written notice of default and thereupon Borrower shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days (in case of a monetary default) or thirty (30) days (in case of a non-monetary default) after the date of the notice served upon Tenant to cure or cause to be cured the default complained of. In addition, in cases of non-monetary default if complete remedy is impossible within the thirty (30) days, Borrower shall have an additional period (to be determined by posting upon the Premises or such lien may be enforced Lender in its sole discretion but in any other lawful manner at event not to exceed six (6) months) in which to cure the option of Landlorddefault, provided Borrower shall not otherwise be in default during the additional period.
Appears in 1 contract
Defaults Remedies. (a) If Tenant fails at any time on or prior to pay the Rentearliest to occur of (i) the termination of this Agreement pursuant to Section 9 hereof, (ii) the Option Period End Date, and (iii) the consummation of the Agreed Repayment Transaction, (A) the Borrowers shall fail to make any of the payments referred to in Section 3(c) hereof on the date such payment is due (a “Payment Default”) or any installment thereofshall otherwise default in the performance or compliance with the terms of this Agreement (a “Non-Payment Default”), and (B) if such default is a Non-Payment Default it shall not have been remedied or waived within five (5) days Business Days after the same becomes due earlier of (x) an officer of any Borrower becoming aware of such default and payable(y) receipt by the Borrowers of a written notice from the Second Lien Agent or any Lockup Party of such Non-Payment Default, or if Tenant violates or fails or neglects to keep and perform any then upon notice from the Second Lien Agent (given at the instructions of the covenantsSecond Lien Requisite Lenders), conditions, and agreements herein contained on the part of Tenant to Second Lien Agent shall be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenantentitled, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equityequity with respect to a breach of this Agreement, to take such actions and have the same rights (in each case, with respect to all obligations under the Second Lien Credit Agreement, including acceleration thereof) as provided in clause (2) of which the last paragraph of Section 8.1 of the Second Lien Credit Agreement (the “Lockup Remedies”). For the avoidance of doubt, the Second Lien Agent and the Lockup Parties shall be cumulative: permitted to terminate this Lease; to declare due exercise the Lockup Remedies immediately upon the occurrence and payable all Rent for during the unexpired Term continuation of a Payment Default.
(b) A Master Agreement Default shall not constitute or trigger a Default or Event of Default under (and as defined in) any of the Credit Agreements or the Third Lien Documents unless and when until the same becomes due and payable or to defer any suit until after Second Lien Agent exercises its right under the Term without thereby prejudicing its rights; Lockup Remedies to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform Second Lien Loans after the expiration of any applicable notice and/or and cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided described in this Lease. Landlord shall Section 10 have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordlapsed.
Appears in 1 contract
Defaults Remedies. If Tenant fails Each of the following shall constitute an Event of Default by Subtenant hereunder: (i) the failure to pay the Rent, make any payment of rent or any installment thereof, within thereof or to pay any other sum required to be paid by Subtenant under this Sublease or under the terms of any other agreement between Sublandlord and Subtenant and the continuance of such failure for more than five (5) days following written notice from Sublandlord to Subtenant; (ii) the use or occupancy of the Subleased Premises for any purpose other than the Permitted Use without Sublandlord’s prior written consent or the conduct of any activity in the Subleased Premises which constitutes a violation of law and continues for twenty (20) days after written notice from Sublandlord to Subtenant; (iii) if the same becomes due interest of Subtenant or any part thereof under this Sublease shall be levied on under execution or other legal process and payablesaid interest shall not have been cleared by said levy or execution within twenty (20) days from the date thereof; (iv) if any voluntary or involuntary petition in bankruptcy or for corporate reorganization or any similar 122587131v.1 relief shall be filed by or against Subtenant or any guarantor of the Sublease or if a receiver shall be appointed for Subtenant or any guarantor or any of the property of Subtenant or guarantor, unless such petition or appointment shall not be discharged within twenty (20) days; (v) if Subtenant or any guarantor of the Sublease shall make an assignment for the benefit of creditors or if Subtenant shall admit in writing its inability to meet Subtenant’s debts as they mature; (vi) if any insurance required to be maintained by Subtenant pursuant to this Sublease shall be cancelled or terminated or expires or shall be reduced or materially changed, except, in each case, as permitted in this Sublease, or agreed to in writing, mutually, by the parties, and such replacement insurance is not provided within twenty (20) days after written notice from Sublandlord to Subtenant; (vii) if Tenant violates Subtenant shall fail to discharge or fails bond over any lien placed upon the Subleased Premises in violation of this Sublease within twenty (20) days; (viii) Subtenant’s failure to provide a statement in writing as and when required under Section 3 of this Sublease, or neglects (ix) the failure to keep and observe or perform any of the covenants, conditions, other covenants or conditions in this Sublease which Subtenant is required to observe and agreements herein contained on the part of Tenant to be kept perform and performed which Subtenant has not corrected within thirty twenty (3020) days after receipt of written notice thereof to Subtenant; provided, however, that if said failure involves the creation of such failure a condition which, in Sublandlord’s reasonable judgment, is dangerous or neglecthazardous, Subtenant shall be required to cure same within 24 hours. Upon the occurrence of an Event of Default by Subtenant, Sublandlord may, at its option, with or if without notice or demand of any kind to Subtenant or any other person, exercise any one or more of the Premises becomes vacant following described remedies, in addition to all other rights and remedies provided at law, in equity or deserted, thenelsewhere herein, and such rights and remedies shall be cumulative and none shall exclude any other right allowed by law:
(i) Sublandlord may terminate this Sublease, repossess and re-let the Subleased Premises, in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will which case Sublandlord shall be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and as damages (in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies any other sums or damages for which Subtenant may be liable to Sublandlord) a lump sum equal to the extent permitted amount of Fixed Rent remaining to be paid by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due Subtenant for the balance of the Term.
(ii) Sublandlord may, without terminating the Sublease, terminate Subtenant’s right of possession, repossess the Subleased Premises including, without limitation, removing all Additional Rent or any part of Subtenant’s personal property in the Subleased Premises and to place such personal property in storage or a public warehouse at the expense and risk of Subtenant, and relet the same for the account of Subtenant for such rent and upon such terms as shall be determined by projecting into satisfactory to Sublandlord. For the future purpose of such reletting, Sublandlord is authorized to decorate, repair, remodel or alter the Additional Subleased Premises. Subtenant shall pay to Sublandlord as damages a sum equal to all Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of under this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover Sublease for the balance of such Rent or pursue the Term unless and until the Subleased Premises are relet. If the Subleased Premises are relet, Subtenant shall be responsible for payment upon demand to Sublandlord of any other remedy deficiency between the rent as relet and the rent for the balance of this Sublease, all costs and expenses of reletting, and all reasonable decoration, repairs, remodeling, alterations, additions and collection of the rent accruing there from. Subtenant shall not be entitled to any rents received by Sublandlord in excess of the rent provided for in this LeaseSublease. Landlord shall have a lien for the payment No re-entry or taking possession of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may Subleased Premises by Sublandlord shall be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling construed as an election to terminate this Sublease unless a written notice of such property in intention be given to Subtenant or unless the same manner as in the case termination thereof be decreed by a court of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlord.competent jurisdiction. 122587131v.1
Appears in 1 contract
Samples: Sublease (Albireo Pharma, Inc.)
Defaults Remedies. If Subject to the provisions of Section 25, below, (i) in the event Tenant fails to pay shall at any time be in default in the Rentpayment of rent herein reserved, or of any installment thereof, within five (5) days after the same becomes due and payableother sum required to be paid by Tenant under this Lease, or if Tenant violates in the performance of or fails or neglects to keep and perform compliance with any of the terms, covenants, conditionsconditions or provisions of this Lease; or (ii) in the event Tenant shall commence any proceeding seeking to have an order for relief entered on its behalf as a debtor under any law relating to bankruptcy, insolvency, reorganization or relief of debtors or seeking the appointment of a receiver, trustee, custodian or other similar official for all (or substantially all) of its assets; or (iii) in the event in any involuntary proceeding Tenant is adjudicated a bankrupt (and agreements herein contained on the part such adjudication is not reversed within 120 days of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, its initial declaration); then and in each addition to any other rights or remedies Landlord may have under this Lease and every such eventat law and in equity, at Landlord shall have the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and following rights:
(a) Subject to the extent permitted by law Landlord will be entitled terms of Section 35 hereof, to the possession of enter the Premises and to re-enter the same without further demand of Rent or demand of possession and may forthwith notice proceed to recover possession of levy the Premises by process of lawrent and/or other charges herein payable as rent, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwiseand Tenant shall pay all costs and officers, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entrycommissions, including reasonable attorneys' fees watchmen's wages and court costs; sums chargeable to Landlord, and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet further including the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per chargeable by the Act of Assembly as commissions to the constable or other person making the levy, and in such case all costs, officers, commissions and other charges shall immediately attach and become part of the claim of Landlord for rent, and any tender of rent without said costs, commissions and charges made, after the issuance of a warrant of distress, shall not be sufficient to satisfy the claim of Landlord.
(b) To re-enter the Premises and remove all persons and all or any property therefrom, either by summary dispossess proceedings or by any suitable action or proceeding at law, and repossess and enjoy the Premises, together with all additions, alterations and improvements. Upon recovering possession of the Premises by reason of or based upon or arising out of a default on the part of Tenant, Landlord may, at Landlord's option, either terminate this Lease Yearor make such alterations and repairs as may be necessary in order to relet the Premises or any part or parts thereof, either in Landlord's name or otherwise, for a term or terms which may at Landlord's option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and at such rent or rents and upon such other terms and conditions as in Landlord's reasonable discretion may seem advisable and to such person or persons as may in Landlord's reasonable discretion seem best; upon each such reletting all rents 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 all 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 it may become due and payable hereunder. If such rentals received from such reletting during any month shall 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. No such re- entry or taking possession of the Premises or the making of alterations and/or improvements thereto or the reletting thereof shall be construed as an election on the part of Landlord to terminate this Lease unless written notice of such intention be given to Tenant. Landlord agrees to use reasonable efforts to mitigate its damages in the event of a default by Tenant under this Lease Agreement; provided however, that Landlord shall in no event be liable in any way whatsoever for failure to relet the Premises or, in the event that the Premises or any part or parts thereof are relet, for failure to collect the rent thereof under such reletting. Following the occurrence and continuation of an event of default after notice and the expiration of the applicable cure period and upon Landlord's lawful re-entry onto the Premises, Tenant, for Tenant and Tenant's successors and assigns, hereby irrevocably constitutes and appoints Landlord Tenant's and their agent to collect the rents due and to become due under all subleases of the Premises or any parts thereof without in any way affecting Tenant's obligation to pay any unpaid balance of rent due or to become due hereunder. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach.
(c) To terminate this Lease and the term hereby created. Upon such termination, Landlord shall be entitled to recover an amount equal to all of the Fixed Rent reserved for the balance of the Principal Term; subject, however, to the affirmative obligation of Landlord to use reasonable efforts to mitigate its loss and damages resulting from its termination of this Lease and the term hereby created.
(d) No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy herein or by law provided but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity or by statute.
(e) No waiver by Landlord of any breach by Tenant of any covenantof Tenant's obligations, condition, agreements 'or agreement covenants herein contained shall operate as be a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision or of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant any obligation, agreement or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rentcovenant, nor shall any endorsement or statement on forbearance by Landlord to seek a remedy for any check breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any letter accompanying subsequent breach.
(f) In the event of any check or payment as Rent be deemed an accord and satisfactiondefault by Tenant of any of its obligations under this Lease, and Landlord may accept such check or payment without prejudice Tenant shall immediately pay to Landlord, upon demand, an amount equal to all reasonable attorney's right to recover the balance fees and court costs incurred by Landlord in enforcing its rights and remedies under this Lease, whether or not an administrative and/or judicial action is commenced by Landlord against Tenant by reason of such Rent or pursue any other default.
(g) The parties recognize that no adequate remedy provided in at law may exist for a breach by Tenant of its obligations under this Lease. Accordingly, either Landlord or Tenant may obtain specific performance of any provision of this Lease. Neither such right nor its exercise shall limit any other remedies which Landlord may have against Tenant or which Tenant may have against Landlord for a lien for breach of this Lease.
(h) If Tenant shall at any time during the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of Principal Term fail to pay any installment of the Principal Term Rent by and if such failure shall continue beyond the taking applicable grace period specified in subsection 25 (a) below, then from and selling after the expiration of such property in grace period and until such sum is paid to Landlord, interest shall accrue (such interest being payable as rent hereunder) on the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner delinquent amount at the option of LandlordEffective Rate.
Appears in 1 contract
Defaults Remedies. If Section 14.01. If, during the Term, any one or more of the following acts or occurrences (any one of such occurrences or acts being hereinafter called an Event of Default) shall happen:
(A) The Tenant fails shall default in making any payment of Term Basic Rent or any Additional Rent as and when the same shall become due and payable, and such default shall continue for a period of ten (10) days after notice from the Landlord that such payment is due and unpaid; or
(B) The Tenant shall default in the performance or if compliance with any of the other covenants, agreements, terms or conditions of this Lease to pay be performed by the RentTenant (other than any default curable by payment of money) , and such default shall continue for a period of twenty (20) days after written notice thereof from the Landlord to the Tenant, or, in the case of a default which cannot with due diligence be cured within twenty (20) days, the Tenant shall fail to proceed promptly (except for unavoidable delays) after the giving of such notice and with all due diligence to cure such default and thereafter to prosecute the curing hereof with all due diligence (it being ii~tended that as to a default not susceptible of being cured with due diligence within twenty (20) days, the time within which such default may be cured shall be extended for such period as may be reasonably necessary to permit the same to be cured with all due diligence) ; or
(C) Tue Tenant or any guarantor of this Lease shall tile a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any installment thereofpetition or answer seeking any reorganization, composition, readjustment or similar relief under any present or future bankruptcy or other applicable law, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver, or liquidator of the Tenant or any guarantor of this Lease or of all or any substantial part of its properties or of all or any part of the Demised Premises; or
(D) If within five sixty (560) days after the same becomes due and payablefiling of an involuntary petition in bankruptcy against the Tenant or any guarantor of This Lease, or if the commencement of any proceeding against the Tenant violates or fails such guarantor- seeking any reorganization, composition, readjustment or neglects to keep and perform similar relief under any law, such proceeding shall not have been dismissed, or if, within sixty (60) days after the appointment, without the consent or acquiescence of the covenantsTenant or such guarantor, conditionsof any trustee, and agreements herein contained on receiver or liquidator of the Tenant or such guarantor, or of all or any part of the Demised Premises, such appointment shall not have been vacated or stayed on appeal or otherwise, or if, within .sixty (60) days after the expiration of any such stay, such appointment shall have been vacated, or if, within sixty (60) days after the taking possession, without the consent or acquiescence of the Tenant or such guarantor, of the property of the Tenant, or of such guarantor by any governmental office or agency pursuant to statutory authority for the dissolution or liquidation of the Tenant or such guarantor, such taking shall not have been vacated or stayed on appeal or otherwise; or
(E) If the Demised Premises shall be kept and performed within abandoned by the Tenant for a period of thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or desertedconsecutive days, then, and in each and every ii) any such event, and during the continuance thereof, the Landlord may, at its option, then or thereafter while any such~ Event of Default shall continue and notwithstanding the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to fact that the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole have any other remedy hereunder or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, by notice to the Tenant, designate a date, not less than ten (10) days after the giving of such notice, on which this Lease shall terminate; and thereupon, on such date the Term of this Lease and the estate hereby granted shall expire and terminate upon the date specified in such~notice with the same force and effect as if the date specified in such notice was the date hereinbefore fixed for the expiration of the Term of this Lease, and all rights of which the Tenant hereunder shall expire and terminate, but the Tenant shall remain liable as hereinafter provided. Additionally, Tenant agrees to pay, as Additional Rent, all attorney's fees and other expenses incurred by the Landlord in enforcing any of the obligations under this Lease, this covenant to survive the expiration or sooner termination of this Lease.
Section 14.02. If this Lease is terminated as provided in Section 14.01, or as permitted by law, the Tenant shall peaceably quit and surrender the Demised Premises to the Landlord, and the Landlord may, without further notice, enter upon, re-enter, possess and repossess. the same by summary proceedings, ejectment or other legal proceedings, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither the Tenant nor any person claiming tI~rougki or under the Tenant by virtue of any law or an order of any court shall be cumulative: entitled to terminate possession or to remain in possession of the Demised Premises, and the Landlord, at its option, shall forthwith, notwithstanding any other provision of this Lease; , be entitled to declare due recover from the Tenant (in lieu of all other claims for damages on account of such termination) as and payable for liquidated damages an amount equal to the excess of all Term Basic Rent and Additional Rent reserved hereunder for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder portion of the Term of this Lease discounted at the rate of six (6%) percent per annum to the then present worth, over the fair rental value of the Demised Premises at the time of termination for such unexpired portion of the Term. Nothing herein contained shall limit or prejudice the right of the Landlord, in any bankruptcy or reorganization or insolvency proceeding, to prove for and declare it obtain as liquidated damages by reason of such termination for such amount equal to the maximum allowed by any bankruptcy or reorganization or insolvency proceedings, or to prove for and obtain as liquidated damages by reason of such termination, an amount equal to the maximum allowed by any statute or rule of law whether such amount shall be greater or less than the excess referred to above.
Section 14.03. If the Landlord re-enters and obtains possession of the Demised Premises, as provided in Section 14.02 of this Lease, fol~owing an Event of Default, the Landlord shall have the right, without notice, to repair or alter the Demised Premises in such manner as the Landlord may deem necessary or advisable so as to put the Demised Premises in good order and to make the same rentable, and shall have the right, at the Landlord's option, to relet the Demised Premises or a part thereof, and the Tenant shall pay to the Landlord on demand all immediately due reasonable expenses incurred by the Landlord in obtaining possession, and payable [with a present value discount two in altering, repairing and putting the Demised Premises in good order and condition and in reletting the same, including reasonable fees of attorneys and architects, and all other reasonable expenses or commissions, and the Tenant shall pay to the Landlord upon (2) whole percentage points below he rent payment dates following the prime rate published in The Wall Street Journal on dare of such re-entry and including the date for the expiration of the Term of this Lease in effect immediately prior to such re-entry, The sums of money which would have been payable by the Tenant as Term Basic Rent and Additional Rent hereunder on such rent payment dates if the Landlord elects said remedy]; had not re-entered and resumed possession of the Demised Premises, deducting only the net amount of Term Basic Rent and Additional Rent, if any, which the Landlord shall actually receive (after deducting from the gross receipts the expenses, costs and payments of the Landlord which in accordance with rite terms of this Lease would have been borne by the Tenant) in the meantime from and by any reletting of the Demised Premises, and the Tenant shall remain liable for all sums otherwise payable by the Tenant under this Lease, including but not limited to bring an action the expense of the Landlord aforesaid, as well as for specific performanceany deficiency aforesaid, injunction, and the Landlord shall have the right from time to time to begin and maintain successive actions or other equitable relief legal proceedings against the Tenant for the recovery of such deficiency, expenses or damages or for a sum equal to prevent any threatened Term Basic Rent payment and Additional Rent. As an alternative remedy, the Landlord shall be entitled to damages against the Tenant for breach of this lease, at any time (whether or impending default not the Landlord shall have become entitled to or shall have received any damages as herinabove) Provided) in an amount equal to end the excess if any, of the Term Basic Rent and Additional Rent which would be payable under this Lease at the date of the expiration of the Terri, less (lie amxxxx of Term Basic Rent and Additional Rent received by the Landlord upon any existing defaultreletting, both discounted to present worth at the rate of six (6%) percent per annum. The obligation and liability of the Tenant to pay the Term Basic Rent and the Additional Rent shall survive the commencement, prosecution and termination of any action to secure possession of rite Demised Premises. Nothing herein contained shall be deemed to require the Landlord to wait to begin such action or other legal proceedings until the date when this Lease would have expired had there not been an Event of Default.
Section 14.04. The Tenant hereby waives all right of redemption to which the Tenant or any person under it may be entitled by any law now or hereafter in force. In addition, in the event of an Event of Default which results in the Landlord may perform any obligation which Tenant has failed to perform after recovering possession of the expiration of any applicable notice and/or cure period (except in an emergencyDemised Premises, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demandunder no duty to mitigate Tenant's damages as provided for in this Article XIV. The Landlord's remedies hereunder are in addition to any remedy allowed by law
Section 14.05. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver event of any breach or threatened breach by Tenant of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenantagreements, condition terms, covenants or agreement itselfconditions contained in this Lease, Landlord shall be entitled to enjoin such breach or threatened breach and shall have the right to invoke arty right or remedy allowed at law or in equity or by statute or otherwise as though re-entry, summary dispossess proceedings, arid other remedies were not provided for in this Lease. During the pendency of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived proceedings brought by Landlord unless such waiver to recover possession by reason of default, Tenant shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed continue all money payments required to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfactionmade to Landlord, and Landlord may accept such check or payment without prejudice payments for use and occupancy of the Demised Premises. In such event, Tenant waives its right in such proceedings to Landlord's right to recover claim as a defense that the balance receipt of such money payments by Landlord constitutes a waiver by Landlord of such default.
Section 14.06. If Tenant fails, on three (3) separate occasions in any twelve (12) month period during the Term hereof, to make payment of the Monthly Basic Rent and/or any Additional Rent and/or late charge on or before the due date, then, whether or not Tenant ultimately takes and Landlord accepts the required payment after the due date, such failure shall entitle Landlord, upon or at any time after such third (3rd) separate occasion, to pursue any other remedy the remedies provided in this Lease. Landlord shall have Article, said circumstances being hereby declared a lien for the payment default no longer susceptible of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in being cured or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed removed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of LandlordTenant.
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Defaults Remedies. If Tenant fails (A) Lessee shall be deemed to pay be in default hereunder upon the Rentoccurrence of any of the following events (‘Events of Default’):
(1) Lessee shall fail to make any payment due hereunder within ten (10) days after its due date; (2) Lessee shall fail to perform or observe any other term, covenant, or condition of this Agreement; (3) Lessee shall have abandoned the Equipment; (4) any representation or warranty of Lessee shall have been untrue in any material respect when made, or any installment thereof, within five information submitted by Lessee to Lessor shall be false or misleading in any material respect; or (5) days after Lessee shall have defaulted under any other agreement with Lessor.
(B) Upon the same becomes occurrence of an Event of Default, Lessor may declare this Agreement to be in Default, and thereafter may exercise any one or more of the following remedies: (1) declare the rent for the Term and all other unpaid rent, fees, taxes and charges under this Agreement immediately due and payable; (2) Repossess, retake and/or retain any or all of the Equipment free of all rights and claims of Lessee without notice, without legal process, or if Tenant violates judicial intervention, and without releasing Lessee of any term, covenant or fails condition provided herein: (3) Sell or neglects to keep and perform otherwise dispose of any or all of the covenantsEquipment, conditionswhether or not in Lessor’s possession, in a commercially reasonable manner and agreements herein contained on apply the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice net proceeds of such failure or neglectdisposition, or if the Premises becomes vacant or desertedafter deducting all costs, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession obligations of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of lawLessee, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable with Lessee remaining liable for any and all damage, deficiency deficiency; (4) Terminate this Agreement; and/or (5) Exercise any other right or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded remedy available to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it Lessor at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No Lessor’s waiver of any breach Event of any covenant, condition, or agreement herein contained Default shall operate as not constitute a waiver of the covenant, condition any other Event of Default or agreement itself, or a waiver of any subsequent breach thereofterm or condition of this Agreement. Lessee shall pay all Lessor’s legal fees and all other costs and expenses incurred by reason of any Event of Default. No provision of this Lease right or remedy referred to herein is intended to be exclusive, and each may be exercised concurrently or separately and from time to time. In the event Lessor shall be deemed to have been waived by Landlord unless such waiver repossess or retake the Equipment, and there shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord attached to such Equipment any property owned by, or in the custody or control of a lesser amount than the Rent herein stipulated shall be deemed Lessee, then Lessor is hereby authorized to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling take possession of such property in the same manner as in the case for a period of chattel mortgages on default thereunder; said sale ten (10) days. Thereafter, if any such property is to made upon not claimed and taken by Lessee within ten (10) days notice served upon Tenant after Lessor repossesses or retakes the Equipment, such property shall be deemed abandoned by posting upon Lessee, and Lessor shall have the Premises right to dispose of it.
(C) Lessee and Lessor waive all right to trial by jury of all claims, defenses, counterclaims and suits of any kind arising from or such lien may be enforced in any other lawful manner at the option of Landlordrelating to this Agreement.
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Samples: Lease Agreement
Defaults Remedies. If Tenant fails to pay the Rent, or any installment thereof, within five (5) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlord.
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Defaults Remedies. Section 14.01. If, during the Term, any one or more of the following acts or occurrences (being hereinafter called an “Event of Default”) shall happen:
(A) If Tenant fails to pay the Rent, shall default in making any payment of Basic Rent or any installment thereof, Additional Rent within five (5) days after written notice; or
(B) If Tenant shall default in the same becomes due and payable, performance of or if Tenant violates or fails or neglects to keep and perform compliance with any of the other covenants, conditionsagreements, terms or conditions of this Lease to be performed by Tenant (other than any default curable by payment of money), and agreements herein contained on the part such default shall continue for a period of Tenant to be kept and performed within thirty (30) days after receipt of written notice thereof from Landlord to Tenant, or, in the case of a default which cannot with due diligence be cured within thirty (30) days, Tenant shall fail to proceed promptly (except for unavoidable delays) after the giving of such failure or neglectnotice and with all due diligence to cure such default and thereafter to prosecute the curing hereof with all due diligence (it being intended that as to a default not susceptible of being cured with due diligence within thirty (30) days, or if the Premises becomes vacant or deserted, then, and in each and every time within which such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and default may be cured shall be extended for such period as may be reasonably necessary to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter permit the same without demand to be cured with all due diligence); or
(C) If Tenant or any guarantor of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises this Lease shall make an assignment for the benefit of Tenantcreditors or file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, composition, readjustment or similar relief under any present or future bankruptcy or other applicable law, or shall seek or consent to or acquiesce in liquidation and dischargethe appointment of any trustee, receiver, or liquidator of Tenant or any guarantor of this Lease or of all or any substantial part of its properties or of all or any part of the Demised Premises; or
(D) If, within sixty (60) days after the filing of an involuntary petition in whole bankruptcy against Tenant or in partany guarantor of this Lease, as or the case may becommencement of any proceeding against Tenant or such guarantor seeking any reorganization, composition, readjustment or similar relief under any law, such proceeding shall not have been dismissed, or if, within sixty (60) days after the appointment, without the consent or acquiescence of Tenant or such guarantor, of any trustee, receiver or liquidator of Tenant or such guarantor, or of all or any part of the Demised Premises, such appointment shall not have been vacated or stayed on appeal or otherwise, or if, within sixty (60) days after the expiration of any such stay, such appointment shall not have been vacated, or if, within sixty (60) days after the taking possession, without the consent or acquiescence of Tenant or such guarantor, of the liability property of Tenant, or of such guarantor by any governmental office or agency pursuant to statutory authority for the dissolution or liquidation of Tenant or such guarantor, such taking shall not have been vacated or stayed on appeal or otherwise; or
(E) Recordation or attempted recordation of this Lease or a memorandum thereof by Tenant; or
(F) If Tenant attempts or purports to transfer, assign, mortgage or encumber this Lease or any of Tenant’s interest hereunder, or attempts or purports to sublet or grant a right to use or occupy all or a portion of the Demised Premises without obtaining the prior written consent of Landlord, to the extent required under the terms and provision of this Lease. In addition to Then and in any such event, and during the foregoing remediescontinuance thereof, Landlord will also may at its option, then or thereafter while any such Event of Default shall continue and notwithstanding the fact that Landlord may have the following remedies to the extent permitted by law and all any other remedies afforded to it remedy hereunder or at law or in equity, by notice to Tenant designate a date, not less than ten (10) days after the giving of such notice, on which this Lease shall terminate; and thereupon on such date the Term of this Lease and the estate hereby granted shall expire and terminate with the same force and effect as if the date specified in such notice was the date hereinbefore fixed for the expiration of the Term of this Lease, and all rights of which Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided. Additionally, Tenant agrees to pay, as Additional Rent, all reasonable attorney’s fees and other expenses incurred by Landlord in enforcing any of the obligations under this Lease, this covenant to survive the expiration or sooner termination of this Lease.
Section 14.02. If this Lease is terminated as provided in Section 14.01, or as permitted by law, Tenant shall peaceably quit and surrender the Demised Premises to Landlord, and Landlord may, without further notice, enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceedings, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant by virtue of any law or an order of any court shall be cumulative: entitled to terminate possession or to remain in possession of the Demised Premises, and Landlord, at its option, shall forthwith, notwithstanding any other provision of this Lease; , be entitled to declare due recover from Tenant (in lieu of all other claims for damages on account of such termination), as and payable for liquidated damages, an amount equal to the excess of all Basic Rent and Additional Rent reserved hereunder for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder portion of the Term of this Lease over the fair market rental for such period, discounted at the rate of four (4%) percent per annum to the then present worth. Nothing herein contained shall limit or prejudice the right of Landlord, in any bankruptcy or reorganization or insolvency proceeding, to prove for and declare it obtain as liquidated damages by reason of such termination an amount equal to the maximum allowed by any bankruptcy or reorganization or insolvency proceedings, or to prove for and obtain as liquidated damages by reason of such termination, an amount equal to the maximum allowed by any statute or rule of law whether such amount shall be greater or less than the excess referred to above.
Section 14.03. If Landlord re-enters and obtains possession of the Demised Premises, as provided in Section 14.02 of this Lease, following an Event of Default, Landlord shall have the right, without notice, to repair or alter the Demised Premises in such manner as Landlord may deem necessary or advisable so as to put the Demised Premises in good order and to make the same rentable, and shall have the right, at Landlord’s option, to relet the Demised Premises or a part thereof, and Tenant shall pay to Landlord on demand all immediately due reasonable expenses incurred by Landlord in obtaining possession, and payable [with a present value discount two (2) whole percentage points below in altering, repairing and putting the prime rate published Demised Premises in The Wall Street Journal on good order and condition and in reletting the same, including reasonable fees of attorneys and architects, and all other reasonable expenses or commissions, and Tenant shall pay to Landlord upon the rent payment dates following the date Landlord elects said remedy]; of such re-entry and to bring an action including the date for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period the Term of this Lease in effect immediately prior to such re-entry, the sums of money which would have been payable by Tenant as Monthly Basic Rent hereunder on such rent payment dates if Landlord had not re-entered and resumed possession of the Demised Premises, deducting only the net amount of rent (except in an emergency, when no notice or cure period will be necessary or affordedBasic and Additional), if any, which Landlord shall actually receive (after deducting from the gross receipts the expenses, costs and payments of Landlord which in accordance with the terms of this Lease would have been borne by Tenant) in the meantime from and by any reletting of the Demised Premises, and Tenant shall remain liable for all at sums otherwise payable by Tenant under this Lease, including but not limited to the cost expense of Landlord aforesaid, as well as for any deficiency aforesaid, and Landlord shall have the right from time to time to begin and maintain successive actions or other legal proceedings against Tenant for the recovery of such deficiency, expenses or damages or for a sum equal to any Monthly Basic Rent payment and Additional Rent. The obligation and liability of Tenant as Additional to pay the Term Basic Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; and the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into survive the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver commencement, prosecution and termination of any breach action to secure possession of any covenant, condition, or agreement the Demised Premises. Nothing herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to require Landlord to wait to begin such action or other legal proceedings until the date when this Lease would have expired had there not been waived an Event of Default.
Section 14.04. Tenant hereby waives all right of redemption to which Tenant or any person under it may be entitled by any law now or hereafter in force. Landlord’s remedies hereunder are in addition to any remedy allowed by law.
Section 14.05. In the event of any breach by Tenant of any of the agreements, terms, covenants or conditions contained in this Lease, Landlord shall be entitled to enjoin such breach and shall have the right to invoke any right or remedy allowed at law or in equity or by statute or otherwise as though re-entry, summary dispossess proceedings, and other remedies were not provided for in this Lease. During the pendency of any proceedings brought by Landlord unless such waiver to recover possession by reason of default, Tenant shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed continue all money payments required to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfactionmade to Landlord, and Landlord may accept such check or payment without prejudice payments for use and occupancy of the Demised Premises. In such event, Tenant waives its right in such proceedings to Landlord's right to recover claim as a defense that the balance receipt of such money payments by Landlord constitutes a waiver by Landlord of such default.
Section 14.06. Landlord shall use reasonable efforts to mitigate or attempt to offset or reduce any damages which are or may be suffered by Landlord as a result of Tenant’s default.
Section 14.07. Notwithstanding anything in this Article XIV to the contrary, if Tenant fails, on two (2) separate occasions in any twelve (12) month period during the Term hereof, to make payment of the Basic Rent and/or any Additional Rent and/or late charge after five (5) days written notice from Landlord of such failure, then, whether or not Tenant ultimately makes and Landlord accepts the required payment after the due date, such failure shall entitle Landlord, upon or at any time after such second (2nd) separate occasion, to pursue any other remedy the remedies provided in this Lease. Landlord shall have Article, said circumstances at Landlord’s election being hereby declared a lien for the payment default no longer susceptible of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in being cured or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed removed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of LandlordTenant.
Appears in 1 contract
Samples: Lease Agreement (Micronetics Inc)
Defaults Remedies. If Tenant fails to pay The occurrence of one or more of the Rentfollowing events will constitute a “Default” under this Note:
(a) The nonpayment of any interest or principal under this Note when due, whether at maturity, by acceleration, or otherwise;
(b) The filing by Borrower of a petition seeking relief for Borrower under any installment thereofbankruptcy, within five (5) days after the same becomes due and payableinsolvency, or if Tenant violates debtor relief law;
(c) The filing by any creditor of Borrower of a petition seeking the involuntary bankruptcy or fails insolvency of Borrower that is not dismissed or neglects to keep and perform any discharged within 60 days from the date of filing the petition;
(d) The entry of a judgment against Borrower for the payment of money in an amount exceeding U.S. $50,000 that is not paid, stayed, or discharged within the time allowed by law for filing a notice of appeal of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty judgment;
(30e) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises Borrower (i) makes a general assignment for the benefit of Tenantits creditors, (ii) admits in liquidation and dischargewriting its inability to pay its debts generally as they mature, in whole (iii) seeks, consents, or in partacquiesces to the appointment of a trustee, as receiver, liquidator, or fiscal agent for all or a substantial part of its property, or (iv) suffers the case may beappointment, without its consent or acquiescence, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remediesa trustee, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equityreceiver, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunctionliquidator, or other equitable relief fiscal agent for all or a substantial part of its property, unless the appointment is vacated within 60 days after it becomes effective;
(f) Any representation or warranty made by Borrower in this Note is incorrect in any material respect;
(g) Borrower fails to prevent any threatened observe or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver in this Note or any of the covenantCredit Documents and the failure continues for 30 days after written notice to Borrower;
(h) Borrower fails to pay when due any of its indebtedness (other than debt arising under this Note but including any other liability that it owes to Lender) or any interest or premium thereon when due (whether by scheduled maturity, condition or agreement itselfacceleration, demand, or otherwise) and the failure continues after the applicable grace period, if any, specified in the agreement or instrument relating to the indebtedness;
(i) One or more orders or judgments have been entered against Borrower and all those orders or judgments have not been vacated, discharged, stayed, or bonded pending appeal within 30 days from their entry;
(j) The issuance of a writ of levy, distraint, execution, attachment, garnishment, or similar legal process (whether or not pursuant to a final judgment) against Borrower or any subsequent breach thereof. No provision guarantor of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check Note or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided their respective property in this Lease. Landlord shall have connection with a lien claim for the payment of the Rent upon money or damages in an amount exceeding $50,000;
(k) The sequestration or assumption of custody by a court having jurisdiction of all or a substantial part of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant Borrower or any guarantor of this Note, unless the custody or sequestration is terminated within 30 days after it is effective;
(l) An attachment after judgment occurs on all or a substantial part of the property of Borrower or any guarantor of this Note, unless the resulting lien is discharged, or execution on the lien is stayed, within 15 days after it is issued or perfected;
(m) A revocation or attempted revocation of any guaranty of this Note;
(n) The violation of any law, or any act or omission, by Borrower or any guarantor of this Note that results in the imposition of a lien by operation of law on any of its property that is not discharged within 30 days after it attaches, unless the lien relates to a claim for payment of money or damages in an amount less than $50,000;
(o) A sale or transfer or all or a majority of the assets (measured by fair value) or the outstanding voting common stock of Borrower pursuant to a sale, lease, merger, spin-off, foreclosure, dissolution, bankruptcy, liquidation, consolidation, tender offer, share exchange, reorganization, recapitalization, or other transaction; or
(p) A breach or default by Borrower or any guarantor of this Note of any lease, contract, mortgage, agreement, instrument, promissory note, or other obligation or commitment to which it is a party or with respect to which it is otherwise liable that causes, with or without notice to Borrower or the guarantor, acceleration of the date when any liability, obligation, or indebtedness in the amount of $50,000 or more becomes due and payable. If a “Default” occurs, the entire unpaid principal amount of this Note will become immediately due and payable without further demand or notice or presentment by the holder of this Note, and the holder of this Note may be proceed to protect his rights in or upon the Premisesmanner provided by applicable law. The rights, Tenant hereby specifically waiving remedies, powers, and privileges provided to Lender are cumulative and not exclusive of any rights, remedies, powers, and all exemptions allowed privileges provided by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlord.
Appears in 1 contract
Samples: Equity Incentive Plan (Evolution Development Group, Inc.)
Defaults Remedies. (a) If Tenant fails to pay there is any NICTD uncured Event of Default (including any default in the Rentobservance of any other covenant, agreement or any installment thereofcondition contained in this Ground Lease) (each, within five (5) days after the same becomes due and payablean “Event of Default”), or if Tenant violates or fails or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and RDA may forthwith proceed to recover possession of the Premises by process of lawprotect and enforce its rights, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it either at law or in equity, all by suit, action, mandamus or other proceedings, whether for specific performance of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent any covenant or agreement contained herein or for the unexpired Term enforcement of any other appropriate legal or equitable remedy (as contained in the Governance Agreement as may relate to this Ground Lease and when such Event of Default); provided that all such rights and remedies taken in respect of this Ground Lease and any such Event of Default shall only be undertaken and pursued by RDA in strict conformity with this Section and the same becomes due requirements and payable or to defer any suit until after limitations set forth in the Term without thereby prejudicing its rights; to accelerate Governance Agreement.
(b) Except for extensions of time resulting from a Force Majeure event that are allowed in the Rent for the remainder Governance Agreement, time is of the Term essence of each term and declare provision of this Ground Lease to be observed by NICTD hereunder.
(c) If RDA shall fail to perform any term, condition, covenant or obligation required to be performed by it all immediately due and payable [with under this Ground Lease, NICTD may pursue a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action claim for specific performance. If RDA shall fail to perform any term, injunctioncondition, covenant or obligation required to be performed by it under this Ground Lease and if NICTD shall, as a consequence thereof, recover a money judgment against RDA and/or IFA, NICTD agrees that (i) it shall look solely to RDA’s and IFA’s right, title and interest in and to the Lease Premises (which shall not include any right to set-off related to any payment due to RDA or IFA as required by the Governance Agreement, the Development Agreement, this Ground Lease, the Underlying Lease, the Master Leases, the Operating Lease and/or any documents related thereto) for the collection of such judgment, (ii) it shall not look to any other assets of RDA and/or IFA in the levy, execution or other equitable relief to prevent process for the satisfaction of NICTD’s judgment, and (iii) it shall not enforce any threatened execution or impending default other process for the satisfaction of NICTD’s judgment, unless such does not: (A) materially reduce the rental value of the Lease Premises; (B) adversely affect the Continuing Rent Obligation; or to end any existing default. In addition, Landlord may perform (C) materially and adversely affect any obligation which Tenant has failed that is required to perform after be met by NICTD pursuant to applicable laws (including the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' feesBond Act) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance and requirements of the TermGovernance Agreement, all Additional Rent the Development Agreement, this Ground Lease the Underlying Lease, the Master Leases, the Operating Lease and/or any documents related thereto.
(d) Neither party’s failure or delay in exercising any of its rights or remedies or other provisions of this Ground Lease shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by constitute a compounding five percent (5%) per Lease Yearwaiver thereof or affect its right thereafter to exercise or enforce such right or remedy or other provision. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated default shall be deemed to be a waiver of any other default. RDA’s receipt of less than the full amount due as herein provided shall not be construed to be other than a payment on account of the earliest stipulated Rentsuch amount then due, nor shall any endorsement or statement on any NICTD’s check or any letter accompanying any NICTD’s check or payment as Rent be deemed an accord and satisfaction. No act or omission by RDA (or IFA) or their respective employees or agents during the term of this Ground Lease shall be deemed an acceptance of a surrender of the Lease Premises hereunder, and Landlord may no agreement to accept such check a surrender shall be valid unless in writing and signed by RDA and IFA.
(e) Notwithstanding anything herein, IFA may proceed to protect and enforce any rights or payment without prejudice to Landlord's right to recover the balance interests of such Rent RDA and IFA under this Ground Lease in its own name or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment on behalf of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property RDA in the same manner as name of RDA in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordits place and stead.
Appears in 1 contract
Samples: Ground Lease Agreement
Defaults Remedies. If 9.01 If, (a) Tenant fails to pay shall default in the Rentperformance of any such of its monetary obligations under this Lease, or any installment thereof, within five and if such default shall continue for ten (510) days after written notice from Landlord to Tenant (provided that Landlord shall not be required to give such notice more than twice during the same becomes due and payableTerm, the third such non-payment constituting an Event of Default without the requirement of notice) or (b) if Tenant violates or fails or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) business days after receipt of written notice from Landlord to Tenant specifying another default or defaults, Tenant has not commenced diligently to correct such default or has not thereafter diligently pursued such correction to completion, or (c) if any assignment shall be made by Tenant for the benefit of such failure or neglectcreditors, or if a petition is filed by or against Tenant under any provision of the Premises becomes vacant Bankruptcy Code and, in the case of involuntary petition, such petition is not dismissed with ninety (90) days, or deserted, then, and in each and every such event, at (d) if the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted leasehold interest shall be taken on execution or by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by other process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANTattached or subjected to any other involuntary encumbrances, then and in any such cases Landlord and its agents and servants may lawfully, immediately or at any time thereafter, and without further notice or demand, and without prejudice to any other remedies available to Landlord for arrearages of rent or otherwise, either (i) enter into and upon the Premises or any part thereof, in the name of the whole, and repossess the same as of Landlord's former estate or (ii) mail a notice of termination addressed to Tenant and upon such entry or mailing this Lease shall terminate. In the event that this Lease is terminated under any of such re-entry by process the foregoing provisions, or otherwise for breach of law or otherwiseTenant's obligations hereunder, then at Landlord's option, Tenant nevertheless agrees covenants to remain answerable pay forthwith to Landlord as compensation the total rent and additional rent reserved for any the residue of the Term, and pay on demand all damage, deficiency or loss of Rent which Landlord may sustain by such re-entryLandlord's costs and expenses, including reasonable attorneys' fees and court costs; and attorney's fees, incurred by Landlord in such caseenforcing any obligation of tenant under this Lease, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of connection with any request by Tenant for Landlord's consent or approval under the terms and provision of this Lease. In addition calculating the amounts to be paid by Tenant under the foregoing covenants, Tenant shall be credited with any amount actually paid to Landlord as compensation as herein before provided and also with any additional rent actually obtained by Landlord by reletting the Premises, after deducting the expenses of collecting the same. And Tenant further covenants, as an alternative obligation, at Landlord's election, after any such termination or entry, to pay punctually to Landlord all the sums and perform all the obligations which Tenant covenants in this Lease to pay and to perform in the same manner and to the foregoing remediessame extent and at the same times as if this Lease had not been terminated. Nothing herein contained shall, however, limit or prejudice the right of Landlord will also have the following remedies to obtain in proceedings for bankruptcy insolvency or reorganization or arrangement with creditors as liquidated damages by reason of such dtermination an amount equal to the extent permitted maximum allowed by any statute or rule of law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all effect at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (includingtime when, without limitationand governing the proceedings in which, reasonable attorneys' fees) incurred by Landlord following a defaultsuch damages are to be proved, whether or not suit is instituted; the same shall such amount be Additional Rent payable upon demand. In determining the Rent due for the balance of the Termgreater than, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, conditionequal to, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount less than the Rent herein stipulated shall be deemed amounts referred to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordabove.
Appears in 1 contract
Defaults Remedies. If Tenant fails to pay Lessee shall (a) default in the Rentpayment of rent, monies, or any installment thereof, within five charges required to be paid or caused to be paid to Lessor and such default shall continue for more than ten (510) days after the same becomes written notice from Lessor that such payments are due and payable, or if Tenant violates or fails or neglects to keep and perform (b) default in the observance and/or performance of any of the covenantsother terms, conditions, obligations or conditions this Lease and agreements herein contained on the part of Tenant to be kept and performed within any such default shall continue for more than thirty (30) days after receipt of Lessor has given Lessee written notice of such failure or neglectdefault; provided, however, there shall be no such default if Lessee has, within such thirty (30) day period, commenced to cure such default and shall thereafter diligently pursue such cure, or if (c) there shall be any execution or other judicial levy upon the leasehold estate hereunder and the same shall not be removed within one hundred twenty (120) days, (d) there shall be any assignment of said leasehold estate for the direct or indirect benefit of creditors of Lessee, (e) there shall be executed any agreement whereby Lessee loses control of its business to a committee of its creditors, (f) there shall be judicial appointment of a receiver or similar officer to take possession of said leasehold estate or the Premises becomes vacant and such receiver or desertedother officer is not dismissed within ninety (90) days after appointment, thenor (g) there shall be a filing of any petition by, for or against Lessee under any chapter of the Federal Bankruptcy Act which is not dismissed within ninety (90) days after filing, Lessor may, at any time thereafter, and without demand or notice, enter into and upon the Premises or any part thereof in each the name of the whole and every repossess the same as of Lessor's former estate, and expel Lessee and those claiming through or under Lessee and remove its or their effects (forcibly, if necessary) without being guilty in any manner of trespass, and without prejudice to any remedies which might otherwise be used for arrears of Rent or preceding breach of covenant, and upon entry as aforesaid, Lessee shall have the right by notice to Lessee of Lessor's desire so to do, forthwith to terminate this Lease. In the event of any such eventtermination, Lessee will indemnify Lessor on a monthly basis against all loss of Rent and other payments provided herein to be paid by Lessee to Lessor between the time of termination and the expiration of the Term of this Lease. It is understood and agreed that (a) at the option time of Landlordthe termination or at any time thereafter, Tenant's right Lessor may rent the Premises for a term which may expire after the expiration of possession will thereupon cease and terminatethe Term of this Lease without releasing Lessee from any liability whatsoever, and to the extent permitted (b) Lessee shall be liable for any reasonable expenses incurred by law Landlord will be entitled to the Lessor in connection with obtaining possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of lawin connection with any reletting, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, but without limitation, reasonable attorneys' fees and reasonable brokers' fees, and (c) incurred by Landlord following a default, whether or not suit is instituted; the same any monies collected from reletting shall be Additional Rent payable upon demand. In determining applied first to the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed foregoing expenses and then to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of LandlordRent.
Appears in 1 contract
Samples: Lease (Iparty Corp)
Defaults Remedies. If Tenant fails to pay the Rent, The happening of any one or any installment thereof, within five (5) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform any more of the covenantsfollowing listed events, conditionshereinafter referred to as defaults, and agreements herein contained shall constitute a breach of this lease agreement on the part of Tenant the Lessee, namely:
(a) Filing by or on behalf of lessee of any petition or pleading to be kept and performed within thirty declare Xxxxxx a bankrupt, whether voluntary or involuntary;
(30b) days after receipt The failure of written notice Lessee to pay any rent payable under this lease agreement or any extension thereof when due;
(c) The appointment by any court or under any law of such failure or neglecta receiver, trustee, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession other custodian of the Premises and to re-enter property, assets, or business of Xxxxxx;
(d) The levy of execution or attachment or other taking of property, assets, or the same without demand leasehold interest of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of lawLessee, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees as satisfaction of any judgment, debt, or claim. Upon happening of any default, Lessor may, if Lessor elects to remain answerable for any and all damage, deficiency or loss do so:
(a) Collect each installment of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term rental hereunder as and when the same becomes due matures; or
(b) Terminate the term of this lease agreement without further liability to Lessee hereunder; or
(c) Terminate Xxxxxx’s right to possession and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder occupancy of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below premises without terminating the prime rate published term of the lease agreement, and, in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performanceevent Lessor shall exercise this right of election, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance effective as of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of written notice of xxxxxx’s election given by the Lessor to Lessee at any time after the date of such event of default. Upon default increasing and entry into possession by a compounding five percent (5%) per Lease Year. No waiver of Lessor, Lessor shall take reasonable steps to relet the premises or any breach of any covenantpart thereof, condition, or agreement herein contained shall operate as a waiver of for the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated RentLessee to any person, nor firm, or corporation selected by lessor in its sole discretion for such rent or for such time and upon such terms as the lessor, in Xxxxxx’s sole discretion, shall determine. If any endorsement rental collected by lessor, upon such reletting for Xxxxxx’s account, is not sufficient to pay monthly the full amount of the rental herein reserved and not therefore paid by Lessee, together with the cost of any repairs, alterations or statement on redecoration necessary for such reletting and legal expenses, Lessee shall pay Lessor the amount of each monthly deficiency upon demand; and, if the rent so elected for such letting is more than sufficient to pay the full amount of the rent reserved hereunder, together with the aforementioned costs, Lessor, at the end of the stated term hereof, shall apply and surplus to the extent thereof to the discharge of any check or any letter accompanying any check or payment as Rent be deemed an accord obligation of Lessee to lessor under the terms of this lease. All remedies of Lessor are cumulative and satisfaction, and Landlord may accept such check or payment without prejudice are in addition to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Leaseremedies accruing by law. Landlord shall have Xxxxxx agrees to pay a lien reasonable attorney’s fee and all costs if it becomes necessary for the payment Lessor to employ an attorney to enforce performance of any of the Rent upon all provisions of this lease or to obtain possession of the goodsleased premises or otherwise to exercise any option to enforce any right given to lessor upon default by lessee expressly waives all exemption, wareswhether a corporation or an individual, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon under the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment laws of any installment state of Rent by The United States of America, as against the taking and selling collection of such property in any debt or hereby incurred or secured. Xxxxxx agrees to pay a reasonable attorney’s fee if it becomes necessary for xxxxxx to employ an attorney to enforce performance of any of the same manner as in the case provisions of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordthis lease.
Appears in 1 contract
Samples: Lease Agreement
Defaults Remedies. (a) If Tenant fails to pay shall default in the Rent, or payment of any installment thereof, within five of rent or other sum of money due hereunder and such default shall continue for a period of ten (510) days after the same becomes due and payablenotice thereof by Landlord, or if Tenant violates shall default in the performance or fails observance of any other provision of this Lease to be performed or neglects to keep observed by Tenant and perform such default shall continue for a period of thirty (30) days after notice thereof by Landlord without being waived, or its effect cured, or the cure thereof commenced and diligently prosecuted thereafter, or if Tenant shall default in the payment, performance or observance of any provision of the covenantsany other lease between Landlord and Tenant for real property located on Spring Street or Hurlxx Xxxeet in Cambridge, conditionsMassachusetts, and agreements herein contained such default shall continue beyond any applicable notice or cure periods provided for in such lease, Landlord may, at Landlord's option, in addition to any other remedies available under law, serve upon Tenant a notice of termination which shall provide that the term of this Lease shall expire and terminate as fully and with like effect as if the entire term of this Lease had lapsed.
(b) Neither bankruptcy, insolvency nor an assignment for the benefit of creditors nor the appointment of a receiver shall affect this Lease or permit its termination so long as the covenants on the part of Tenant to be kept and performed within thirty shall be performed by Tenant or someone claiming under Tenant.
(30c) days after receipt of written No notice of such failure default or neglectnotice of termination given hereunder shall be effective unless it shall specify in detail the claimed default.
(d) In the event that this Lease shall be terminated under any of the provisions contained in this Article XIII, or if Tenant shall pay punctually to Landlord all the Premises becomes vacant or deserted, then, sums and shall perform all the obligations which Tenant covenants in each this Lease to pay and every such event, at shall perform in the option of Landlord, Tenant's right of possession will thereupon cease and terminate, same manner and to the same extent permitted and at the same time as if this Lease had not been terminated. In calculating the amounts to be paid by law Landlord will be entitled Tenant pursuant to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwisepreceding sentence, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for credited with the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration net proceeds of any applicable notice and/or cure period (except rent obtained by Landlord by reletting the Demised Premises, after deducting all Landlord's reasonable expenses in an emergencyconnection with such reletting, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' feesall repossession costs, brokerage commissions, fees for legal services and expenses of preparing the Demised Premises for such reletting, it being agreed by Tenant that Landlord may (i) incurred by Landlord following relet the Demised Premises or any part or parts thereof for a default, whether term or not suit is instituted; terms which may at Landlord's option be equal to or less than or exceed the same shall be Additional Rent payable upon demand. In determining the Rent due for period which would otherwise have constituted the balance of the Termterm hereof and may grant such concessions and free rent as Landlord in its reasonable judgment considers advisable or necessary to relet the same and (ii) make such alterations, all Additional Rent shall be determined by projecting into repairs and decorations in the future Demised Premises as Landlord in its reasonable judgment considers advisable or necessary to relet the Additional Rent payable on same, and no action of Landlord in accordance with the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, foregoing or agreement herein contained failure to relet or to collect rent under reletting shall operate or be construed to release or reduce Tenant's liability as a waiver of aforesaid. Notwithstanding the covenantforegoing, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed Landlord specifically recognizes its obligation to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than minimize damages and will use commercially reasonable efforts to relet the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Demised Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlord.
Appears in 1 contract
Samples: Ground Lease (Biopure Corp)
Defaults Remedies. If Section 14.01. If, during the Term, any one or more of the following acts or occurrences (any one of such occurrences or acts being herein called an “Event of Default”), shall happen:
(A) Tenant fails to pay the Rent, shall default in making any payment of Monthly Basic Rent or any installment thereofAdditional Rent as and when the same shall become due and payable, within and such default shall continue for a period of five (5) days after the same becomes notice from Landlord that such payment is due and payable, unpaid; or
(B) Tenant shall default in the performance of or if Tenant violates or fails or neglects to keep and perform compliance with any of the other covenants, conditionsagreements, terms or conditions of this Lease to be performed by Tenant (other than any default curable by payment of money), and agreements herein contained on the part such default shall continue for a period of Tenant to be kept and performed within thirty twenty (3020) days after receipt of written notice thereof from Landlord to Tenant, or, in the case of a default which cannot with due diligence be cured within twenty (20) days, Tenant shall fail to proceed promptly after the giving of such failure or neglectnotice and with all due diligence to cure such default and thereafter to prosecute the curing thereof with all due diligence (it being intended that, or if as to a default not susceptible of being cured with due diligence within twenty (20) days, the Premises becomes vacant or deserted, then, and in each and every time within which such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and default may be cured shall be extended for such period as may be reasonably necessary to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter permit the same without demand to be cured with all due diligence); or
(C) Tenant or any guarantor of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises this Lease shall make an assignment for the benefit of Tenantcreditors or file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, composition, readjustment or similar relief under any present or future bankruptcy or other applicable law, or shall seek or consent to or acquiesce in liquidation and dischargethe appointment of any trustee, receiver, or liquidator of Tenant or any guarantor of this Lease or of all or any substantial part of its properties or of all or any part of the Demised Premises; or
(D) If, within sixty (60) days after the filing of an involuntary petition in whole bankruptcy against Tenant or in partany guarantor of this Lease, as or the case may becommencement of any proceeding against Tenant or such guarantor seeking any reorganization, composition, readjustment or similar relief under any law, such proceeding shall not have been dismissed, or if, within sixty (60) days after the appointment, without the consent or acquiescence of Tenant or such guarantor, of any trustee, receiver or liquidator of Tenant or such guarantor, or of all or any part of the Demised Premises, such appointment shall not have been vacated or stayed on appeal or otherwise, or if, within sixty (60) days after the expiration of any such stay, such appointment shall not have been vacated, or if, within sixty (60) days after the taking possession, without the consent or acquiescence of Tenant or such guarantor, of the liability property of Tenant, or of such guarantor by any governmental office or agency pursuant to statutory authority for the dissolution or liquidation of Tenant under the terms or such guarantor, such taking shall not have been vacated or stayed on appeal or otherwise; Then and provision in any such event, and while any such Event of this Lease. In addition to the foregoing remediesDefault shall continue, Landlord will also may, at its option, notwithstanding the fact that Landlord may have the following remedies to the extent permitted by law and all any other remedies afforded to it remedy hereunder or at law or in equity, all of which shall be cumulative: by notice to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with Tenant, designate a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performancedate, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount less than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days after the giving of such notice, on which this Lease shall terminate; and thereupon, on such date the Term of this Lease and the estate hereby granted shall expire and terminate upon the date specified in such notice served upon with the same force and effect as if the date specified in such notice was the date hereinbefore fixed for the expiration of the Term of this Lease, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as herein provided. Additionally, Tenant agrees to pay, as Additional Rent, all attorney’s fees and other expenses incurred by Landlord in enforcing any of the obligations under this Lease, this covenant to survive the expiration or sooner termination of this Lease.
Section 14.02. If this Lease is terminated as provided in Section 14.01, or as permitted by law, Tenant shall peaceably quit and surrender the Demised Premises to Landlord, and Landlord may, without further notice, enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceedings, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant by posting virtue of any law or an order of any court shall be entitled to possession or to remain in possession of the Demised Premises, and Landlord, at its option, shall forthwith, notwithstanding any other provision of this Lease, be entitled to recover from Tenant (in lieu of all other claims for damages on account of such termination) as and for liquidated damages an amount equal to the excess of all Term Basic Rent and Additional Rent reserved hereunder. The rent fixed upon any reletting shall conclusively establish the fair rental value. Nothing herein contained shall limit or prejudice the right of Landlord, in any bankruptcy or reorganization or insolvency proceeding, to prove for and obtain as liquidated damages by reason of such termination an amount equal to the maximum allowed by any bankruptcy or reorganization or insolvency proceedings, or to prove for and obtain as liquidated damages by reason of such termination, an amount equal to the maximum allowed by any statute or rule of law whether such amount shall be greater or less than the excess referred to above.
Section 14.03. If Landlord re-enters and obtains possession of the Demised Premises, as provided in Section 14.02 of this Lease, following an Event of Default, Landlord shall have the right, without notice, to repair or alter the Demised Premises in such manner as Landlord may deem necessary or advisable so as to put the Demised Premises in good order and to make the same rentable, and shall have the right, at Landlord’s option, to relet the Demised Premises or a part thereof, and Tenant shall pay to Landlord on demand all expenses incurred by Landlord in obtaining possession, and in altering, repairing and putting the Demised Premises in good order and condition and in reletting the same, including reasonable fees of attorneys and architects, and all other reasonable expenses or commissions, and Tenant shall pay to Landlord upon the rent payment dates following the date of such re-entry and including the date for the expiration of the Term of this Lease in effect immediately prior to such re-entry, the sums of money which would have been payable by Tenant as Monthly Basic Rent hereunder on such rent payment dates if Landlord had not re-entered and resumed possession of the Demised Premises, deducting only the net amount of Basic Rent and Additional Rent, if any, which Landlord shall actually receive (after deducting from the gross receipts, the expenses, costs and payments of Landlord which in accordance with the terms of this Lease would have been borne by Tenant) in the meantime from and by any reletting of the Demised Premises, and Tenant shall remain liable for all sums otherwise payable by Tenant under this Lease, including but not limited to the expenses of Landlord aforesaid, as well as for any deficiency aforesaid, and Landlord shall have the right from time to time to begin and maintain successive actions or other legal proceedings against Tenant for the recovery of such deficiency, expenses or damages or for a sum equal to any Monthly Basic Rent payment and Additional Rent. As an alternative remedy, Landlord shall be entitled to damages against Tenant for breach of this Lease, at any time (whether or not Landlord shall have become entitled to or shall have received any damages as hereinabove provided) in an amount equal to the excess, if any, of the Term Basic Rent and Additional Rent which would be payable under this Lease at the date of the expiration of the Term, less the amount of Term Basic Rent and Additional Rent received by Landlord upon any reletting, both discounted to present worth at the rate of four (4%) percent per annum. The obligation and liability of Tenant to pay the Term Basic Rent and the Additional Rent shall survive the commencement, prosecution and termination of any action to secure possession of the Demised Premises. Nothing herein contained shall be deemed to require Landlord to wait to begin such action or other legal proceedings until the date when this Lease would have expired had there not been an Event of Default.
Section 14.04. In the event of an Event of Default which results in Landlord recovering possession of the Demised Premises, then neither Tenant nor any other person shall have or claim any right of redemption in or to the Demised Premises or any part thereto or estate therein, under any law now or hereafter existing and Tenant for itself and its successors or assigns hereby releases and surrenders any such lien may be enforced right of redemption.
Section 14.05. Landlord and Tenant hereby expressly agree that Landlord’s obligations to mitigate or attempt to offset or reduce any damages are expressly limited to that required of Landlord under the laws of the State of New Jersey then in any other lawful manner at the option of Landlordeffect.
Appears in 1 contract
Samples: Lease Agreement (Merisel Inc /De/)
Defaults Remedies. Section 15.01. The occurrence of any one or more of the following acts or occurrences shall be referred to as a default or as an "Event of Default" under this Lease:
(A) If Tenant fails shall fail to make any payment of Basic Rent or pay the Rent, Additional Rent or any installment thereofother amount due under this Lease as and when the same shall become due and payable; or
(B) If Tenant shall default in the performance of or compliance with any of the other covenants, within five agreements, terms or conditions of this Lease to be performed by Tenant (5other than any default curable by payment of money), and such default shall continue for a period of thirty (30) days after written notice thereof from Landlord to Tenant; or where such default reasonably cannot be cured within such thirty (30) days, if Tenant shall not have commenced the same becomes due curing thereof within such period of time and payableshall not be proceeding with reasonable diligence to cure it, provided, however, that such default must be cured within ninety (90) days after commencement of the curing thereof; or
(C) If Tenant or any guarantor of this Lease shall make an assignment for the benefit of creditors or file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or if shall file any petition or answer seeking any reorganization, composition, readjustment or similar relief under any present or future bankruptcy or other applicable law, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver, or liquidator of Tenant violates or fails any guarantor of this Lease or neglects to keep and perform of all or any substantial part of its properties or of all or any part of the covenantsDemised Premises; or
(D) If, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt the filing of written notice an involuntary petition in bankruptcy against Tenant or any guarantor of such failure or neglectthis Lease, or if the Premises becomes vacant commencement of any proceeding against Tenant or desertedsuch guarantor seeking any reorganization, thencomposition, and in each and every readjustment or similar relief under any law, such eventproceeding shall not have been dismissed, at or if, within thirty (30) days after the option appointment (with or without the consent or acquiescence of LandlordTenant or such guarantor), Tenant's right of possession will thereupon cease and terminateany trustee, and to the extent permitted by law Landlord will be entitled to the possession receiver or liquidator of Tenant or such guarantor, or of all or any part of the Premises and to re-enter the same without demand of Rent Demised Premises, such appointment shall not have been vacated or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law stayed on appeal or otherwise, Tenant nevertheless agrees to remain answerable for any and all damageor if, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two within thirty (230) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform days after the expiration of any applicable notice and/or cure period such stay, such appointment shall have been vacated, or if, within thirty (except in an emergency30) days after the taking possession, when no notice without the consent or cure period will be necessary or afforded), all at the cost acquiescence of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (includingor such guarantor, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date property of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itselfTenant, or of such guarantor by any subsequent breach thereof. No provision governmental office or agency pursuant to statutory authority for the dissolution or liquidation of this Lease Tenant or such guarantor, such taking shall not have been vacated or stayed on appeal or otherwise; or
(E) If the Demised Premises shall be deemed abandoned, unoccupied or vacated by Tenant; or
(F) If Tenant liquidates, ceases to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant exist or receipt by Landlord sells all or a substantial portion of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by lawits assets; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlord.or
Appears in 1 contract
Defaults Remedies. If Tenant fails Section 14.01 This Lease is subject to pay the Rentlimitations that if, at any time during the term, any one or more of the following events (hereinafter called an “event of default”) shall occur:
(a) if the Tenant, or any guarantor of Tenant’s obligations hereunder, shall make an assignment for the benefit of its creditors; or
(b) if any petition shall be filed by or against Tenant or such guarantor, in any court, whether or not pursuant to any statue of the United States or of any state, in any bankruptcy, reorganization, composition, extension, arrangement or insolvency proceedings, and the Tenant or such guarantor, shall thereafter be adjudicated bankrupt, or such petition shall be approved by the court, or the court shall assume jurisdiction of the subject matter, or if such proceedings shall not be dismissed, discontinued or vacated within forty-five (45) days; or
(c) if, in any proceeding, a receiver or trustee shall be appointed for all or any portion of the Tenant’s or such guarantor’s property, and such receivership or trusteeship shall not be vacated or set aside within forty-five (45) days after the appointment of such receiver or trustee; or
(d) if the Tenant shall refuse to take possession of the Demised Premises at the Commencement Date, or shall vacate the Demised Premises and permit the same to remain unoccupied and unattended; or
(e) if the Tenant shall assign, mortgage or encumber this Lease, or sublet the whole or any part of the Demised Premises, otherwise than as expressly permitted hereunder; or
(f) if the Tenant shall fail to pay any installment thereofof rent, within additional rent, or any other charge required to be paid by Tenant hereunder, when the same shall become due and payable, and such failure shall continue for five (5) days after notice thereof from the same becomes due and payable, Landlord to the Tenant; or
(g) if the Tenant shall fail to perform or if Tenant violates or fails or neglects to keep and perform observe any other requirement of the covenants, conditions, and agreements herein contained this Lease (not hereinbefore specifically referred to) on the part of the Tenant to be kept performed or observed, and performed within thirty such failure shall continue for twenty (3020) days after receipt notice thereof from the Landlord to the Tenant; then, upon the happening of written any one or more of the aforementioned events of default, the Landlord may give to the Tenant a notice (hereinafter called “notice of such failure or neglect, or if termination”) of intention to end the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision term of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it Lease at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period five (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees5) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on days from the date of default increasing by a compounding service of such notice of termination, and at the expiration of such five percent (5%) per Lease Year. No waiver of any breach of any covenantdays, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than and the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rentterm hereof, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon well as all of the goodsright, warestitle and interest of the Tenant, chattelshereunder, fixturesshall wholly cease and expire, furniture and other personal property of the Tenant which may be in or upon shall then quit and surrender the PremisesDemised Premises to the Landlord, but the Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner shall remain liable as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordhereinafter provided.
Appears in 1 contract
Defaults Remedies. If Tenant fails (A) Lessee shall be deemed to pay be in default hereunder upon the Rentoccurrence of any of the following events (“Events of Default”):
(1) Lessee shall fail to make any payment due hereunder within ten (10) days after its due date; (2) Lessee shall fail to perform or observe any other term, covenant, or condition of this Agreement; (3) Lessee shall have abandoned the Equipment; (4) any representation or warranty of Lessee shall have been untrue in any material respect when made, or any installment thereof, within five information submitted by Lessee to Lessor shall be false or misleading in any material respect; or (5) days after Lessee shall have defaulted under any other agreement with Lessor.
(B) Upon the same becomes occurrence of an Event of Default, Lessor may declare this Agreement to be in Default, and thereafter may exercise any one or more of the following remedies: (1) Declare the rent for the Term and all other unpaid rent, fees, taxes and charges under this Agreement immediately due and payable; (2) Repossess, retake and/or retain any or all of the Equipment free of all rights and claims of Lessee without notice, without legal process, or if Tenant violates judicial intervention, and without releasing Lessee of any term, covenant or fails condition provided herein; (3) Sell or neglects to keep and perform otherwise dispose of any or all of the covenantsEquipment, conditionswhether or not in Lessor’s possession, in a commercially reasonable manner and agreements herein contained on apply the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice net proceeds of such failure or neglectdisposition, or if the Premises becomes vacant or desertedafter deducting all costs, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession obligations of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of lawLessee, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable with Lessee remaining liable for any and all damage, deficiency deficiency; (4) Terminate this Agreement; and/or (5) Exercise any other right or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded remedy available to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it Lessor at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No Lessor’s waiver of any breach Event of any covenant, condition, or agreement herein contained Default shall operate as not constitute a waiver of the covenant, condition any other Event of Default or agreement itself, or a waiver of any subsequent breach thereofterm or condition of this Agreement. Lessee shall pay all Lessor’s legal fees and all other costs and expenses incurred by reason of any Event of Default. No provision of this Lease right or remedy referred to herein is intended to be exclusive, and each may be exercised concurrently or separately and from time to time. In the event Lessor shall be deemed to have been waived by Landlord unless such waiver repossess or retake the Equipment, and there shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord attached to such Equipment any property owned by, or in the custody or control of a lesser amount than the Rent herein stipulated shall be deemed Lessee, then Lessor is hereby authorized to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling take possession of such property in the same manner as in the case for a period of chattel mortgages on default thereunder; said sale ten (10) days. Thereafter, if any such property is to made upon not claimed and taken by Lessee within ten (10) days notice served upon Tenant after Lessor repossesses or retakes the Equipment, such property will be deemed abandoned by posting upon Lessee, and Lessor shall have the Premises right to dispose of it.
(C) Xxxxxx and Lessor waive all right to trial by jury of all claims, defenses, counterclaims and suits of any kind arising from or such lien may be enforced in any other lawful manner at the option of Landlordrelating to this Agreement.
Appears in 1 contract
Samples: Lease Agreement
Defaults Remedies. (a) If Tenant the purchase and sale of the Property is not consummated in accordance with the terms and conditions of this Agreement due to circumstances or conditions which constitute a default by Seller under this Agreement, Seller breaches and representation or warranty under this Agreement or Seller otherwise fails to pay the Rentcomply with any other term or condition of this Agreement, or any installment thereof, and Seller does not cure such default within five ten (510) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt Buyer’s delivery of written notice to Seller, Buyer shall have (i) the right to terminate this Agreement by delivering written notice to Seller and to receive a refund of such failure or neglect, or if the Premises becomes vacant or deserted, thenXxxxxxx Money, and in each (ii) all rights and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it available at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' feesthe right to xxx Seller for specific performance and/or damages; provided, however, if an action for specific performance is not an available remedy, Seller shall, as an obligation that shall survive termination of this Agreement, reimburse Buyer for all of Buyer’s actual, out of pocket, third-party professional fees related to this Agreement and/or the Property, as well as all actual, out of pocket, third-party fees and costs related to Buyer’s Investigations, such claim, however, shall not exceed $25,000.00.
(b) incurred by Landlord following a default, whether or not suit is instituted; If the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance purchase and sale of the Term, all Additional Rent shall be determined by projecting into Property is not consummated in accordance with the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision terms and conditions of this Lease shall be deemed Agreement due to have been waived circumstances or conditions which constitute a default by Landlord unless Buyer under this Agreement and Buyer does not cure such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon within ten (10) days after Seller’s delivery of written notice served upon Tenant to Buyer, Seller shall be entitled to terminate this Agreement and receive the Xxxxxxx Money as its liquidated damages, and not as a penalty, and as Seller’s sole and exclusive remedy. Seller acknowledges and agrees that (1) the Xxxxxxx Money is a reasonable estimate of and bears a reasonable relationship to the damages that would be suffered and costs incurred by posting upon Seller as a result of having withdrawn the Premises Property from sale and the failure of the Closing to occur due to a default of Buyer under this Agreement; (2) the actual damages suffered and costs incurred by Seller as a result of such withdrawal and failure to close due to a default of Buyer under this Agreement would be extremely difficult and impractical to determine; (3) Buyer’s liability under this Agreement is limited to the amount of the Xxxxxxx Money in the event this Agreement is terminated and the transaction contemplated by this Agreement does not close due to a default of Buyer under this Agreement; and (4) the Xxxxxxx Money shall be and constitute valid liquidated damages.
(c) The Parties agree that this is a business Agreement as defined under N.C.G.S. § 6-21.6. In connection with any litigation arising out of this transaction, or such lien may the interpretation or enforcement of this Agreement, the prevailing party shall be enforced entitled to recover from the party not prevailing its reasonable costs and reasonable attorney, paralegal and experts’ fees and expenses in connection with all proceedings and all levels of proceedings. Venue for any other lawful manner at the option litigation arising out of Landlordthis Agreement shall lie only in Mecklenburg County, North Carolina.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Defaults Remedies. If Tenant fails 8.1 The occurrence of any of the following events or conditions shall constitute an "Event of Default" under this Deed of Trust:
(a) Any failure to pay any principal or interest or any other part of the RentObligation when the same shall become due and payable, subject to the expiration of any applicable cure period provided in the Obligation.
(b) Any failure or neglect to perform or observe any of the terms, provisions, or covenants of this Deed of Trust, the Note, the Loan Agreement or any other document or instrument executed or delivered in connection with the Obligation, which failure is not cured within ten (10) days after such payment or performance is due and Holder has provided Maker written notice of such default.
(c) Any warranty, representation or statement contained in this Deed of Trust, the Note, the Loan Agreement or any other document or instrument executed or delivered in connection with the Obligation, or made or furnished to Beneficiary by or on behalf of Trustor, that shall be or shall prove to have been false when made or furnished.
(d) The filing by Trustor, any endorser of the Note, or any installment thereof, guarantor of the Obligation (or against Trustor or such endorser or guarantor to which Trustor or such endorser or guarantor acquiesces or which is not dismissed within forty-five (545) days after the same becomes due and payablefiling thereof) of any proceeding under the federal bankruptcy laws now or hereafter existing or any other similar statute now or hereafter in effect; the entry of an order for relief under such laws with respect to Trustor or such endorser or guarantor; or the appointment of a receiver, trustee, custodian or conservator of all or any part of the assets of Trustor or such endorser or guarantor.
(e) The insolvency of Trustor, any endorser of the Note or any guarantor of the Obligation; or the execution by Trustor or such endorser or guarantor of an assignment for the benefit of creditors; or the convening by Trustor or such endorser or guarantor of a meeting of its creditors, or any class thereof, for purposes of effecting a moratorium upon or extension or composition of its debts; or the failure of Trustor or such endorser or guarantor to pay its debts as they mature; or if Tenant violates Trustor or fails such endorser or neglects to keep guarantor is generally not paying its debts as they mature. Purchase and perform Sale Agreement and Joint Escrow Instructions
(f) The admission in writing by Trustor, any endorser of the covenantsNote or any guarantor of the Obligation that it is unable to pay its debts as they mature or that it is generally not paying its debts as they mature.
(g) The death or incapacity of Trustor, conditionsany endorser of the Note or any guarantor of the Obligation, and agreements herein contained on if an individual, or the part liquidation, termination or dissolution of Tenant to be kept and performed Trustor or any such endorser or guarantor, if a corporation, partnership or joint venture.
(h) Any attachment, garnishment, levy or execution upon, or judicial seizure of, any portion of the Trust Property.
(i) The existence or the filing of any lien or encumbrance against the Trust Property other than any Permitted Exceptions which lien is not discharged within thirty (30) days after receipt Trustor has actual knowledge of written notice the filing.
(j) The institution of such failure any legal action or neglectproceedings to enforce a mortgage, deed of trust or other lien upon the Trust Property pursuant to this Deed of Trust.
(k) The occurrence of any event of default under the Note, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided document or instrument executed or delivered in this Lease. Landlord shall have a lien for connection with the payment of Obligation that is not cured within the Rent upon all of the goodsapplicable cure period, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordhaving been given.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Luna Azul Development Fund, LLC)
Defaults Remedies. If Tenant fails to pay the Rent, or any installment thereof, within five (5) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, terminate and to the extent permitted by law law, Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlord.
Appears in 1 contract
Defaults Remedies. If Tenant fails to pay the Rent, or any installment thereof, within five (5) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which The Administrative Agent shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord knowledge of the occurrence of a lesser amount Default or Event of Default (other than the Rent herein stipulated shall be deemed non-payment of principal of or interest on the Obligations to the extent the same is required to be other than on paid to the Administrative Agent for the account of the earliest stipulated Rent, nor shall any endorsement or statement on any check Lenders) unless the Administrative Agent has received notice from a Lender or any letter accompanying Credit Party specifying such Default or Event of Default and stating that such notice is a “Notice of Default.” In the event that the Administrative Agent receives such a notice of occurrence of a Default or Event of Default, the Administrative Agent shall give prompt notice thereof to each of the Lenders (and shall give each Lender prompt notice of each such non-payment). The Administrative Agent shall (subject to its rights to indemnity) take such action with respect to such Default or Event of Default which is continuing as shall be directed by the Requisite Lenders; provided that, unless and until the Administrative Agent shall have received such directions, the Administrative Agent may take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interest of the Lenders (and shall incur no liability for such action or by reason of so refraining); and provided further that the Administrative Agent shall not be required to take any check or payment as Rent such action which it determines to be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice contrary to Landlord's right to recover the balance of such Rent or pursue any other remedy provided law. Anything in this Lease. Landlord Agreement to the contrary notwithstanding, each Lender agrees that no Lender shall have a lien for take any action to protect or enforce its rights with respect to the payment Obligations or this Agreement or any related documents, instruments, or agreements without first obtaining the prior written consent of the Rent upon all Requisite Lenders, it being the intent of the goodsLenders that any such action shall be taken in concert and at the direction or with the consent of the Requisite Lenders and not individually by a single Lender; provided, wareshowever, chattelsthat with respect to the exercise of any right of set off, fixtures, furniture and other personal property of Tenant which such action may be in or upon taken with the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on consent of the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of LandlordAdministrative Agent alone.
Appears in 1 contract
Samples: Credit Facility Agreement (Phoenix Footwear Group Inc)
Defaults Remedies. If Tenant fails (A) Lessee shall be deemed to pay be in default hereunder upon the Rentoccurrence of any of the following events (‘Events of Default’):
(1) Lessee shall fail to make any payment due hereunder within ten (10) days after its due date; (2) Lessee shall fail to perform or observe any other material term, covenant, or condition of this
(B) Upon the occurrence of an Event of Default, with written notice thereof and a reasonable opportunity cure provided to Lessee, Lessor may declare this Agreement to be in Default, and thereafter may exercise any installment thereofone or more of the following remedies: (1) declare the rent for the Term and all other unpaid rent, within five fees, taxes and charges under this Agreement immediately due and payable; (2) Repossess, retake and/or retain any or all of the Equipment free of all rights and claims of Lessee without notice, without legal process, or judicial intervention, and without releasing Lessee of any term, covenant or condition provided herein: (3) Sell or otherwise dispose of any or all of the Equipment, whether or not in Lessor’s possession, in a commercially reasonable manner and apply the net proceeds of such disposition, after deducting all costs, to the obligations of Lessee, with Lessee remaining liable for any deficiency; (4) Terminate this Agreement; and/or (5) days after the same becomes due and payable, Exercise any other right or if Tenant violates or fails or neglects remedy available to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it Lessor at law or in equity, all of which . Lessor’s failure to exercise any remedy listed herein shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No constitute waiver of any breach Event of any covenant, condition, or agreement herein contained Default and shall operate as not constitute a waiver of the covenant, any other term or condition or agreement itself, or of this Agreement. Lessee shall pay Lessor’s reasonable legal fees and other costs and expenses reasonably incurred by reason of any subsequent breach thereofEvent of Default or enforcement of this Agreement. No provision of this Lease right or remedy referred to herein is intended to be exclusive, and each may be exercised concurrently or separately and from time to time. In the event Lessor shall be deemed to have been waived by Landlord unless such waiver repossess or retake the Equipment, and there shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord attached to such Equipment any property owned by, or in the custody or control of a lesser amount than the Rent herein stipulated shall be deemed Lessee, then Lessor is hereby authorized to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling take possession of such property in the same manner as in the case for a period of chattel mortgages on default thereunder; said sale ten (10) days. Thereafter, if any such property is to made upon not claimed and taken by Lessee within ten (10) days notice served upon Tenant after Lessor repossesses or retakes the Equipment, such property shall be deemed abandoned by posting upon Lessee, and Lessor shall have the Premises right to dispose of it.
(C) Xxxxxx and Lessor waive all right to trial by jury of all claims, defenses, counterclaims and suits of any kind arising from or such lien may be enforced in any other lawful manner at the option of Landlordrelating to this Agreement.
Appears in 1 contract
Samples: Lease Agreement
Defaults Remedies. If Tenant fails (a) Each of the following shall constitute an “Event of Default” by Subtenant hereunder: (i) the failure to pay the Rent, make any payment of rent or any installment thereof, within thereof or to pay any other sum required to be paid by Subtenant under this Sublease or under the terms of any other agreement between Sublandlord and Subtenant and the continuance of such failure for more than five (5) days after following receipt of written notice from Sublandlord to Subtenant; (ii) the same becomes due use or occupancy of the Subleased Premises by Subtenant for any purpose other than the Permitted Use without Sublandlord’s prior written consent, (iii) the conduct of any activity in the Subleased Premises which constitutes a violation of law, which violation is not cured by Subtenant within any time allowed under such law; (iv) if the interest of Subtenant or any part thereof under this Sublease shall be levied on under execution or other legal process and payablesaid interest shall not have been cleared by said levy or execution within fifteen (15) days from the date thereof; (v) if any voluntary or involuntary petition in bankruptcy or for corporate reorganization or any similar relief shall be filed by or against Subtenant or any guarantor of the Sublease or if a receiver shall be appointed for Subtenant or any guarantor or any of the property of Subtenant or guarantor; (vi) if Subtenant or any guarantor of the Sublease shall make an assignment for the benefit of creditors or if Subtenant shall admit in writing its inability to meet Subtenant’s debts as they mature; (vii) if any insurance required to be maintained by Subtenant pursuant to this Sublease shall be cancelled or terminated or shall expire or shall be reduced below minimum required levels of coverage, except, in each case, as permitted in this Sublease, or agreed to in writing, mutually, by the parties; (viii) if Tenant violates Subtenant shall fail to immediately discharge or fails bond over any lien placed upon the Subleased Premises in violation of this Sublease; or neglects (ix) the failure to keep and observe or perform any of the covenantsother covenants or conditions in this Sublease which Subtenant is required to observe and perform and which Subtenant has not corrected within twenty (20) days after written notice thereof to Subtenant; provided, conditionshowever, that if said failure involves the creation of a condition which, in Sublandlord’s reasonable judgment, is dangerous or hazardous, Subtenant shall be required to commence such cure (and agreements herein thereafter diligently pursue the same) promptly upon actual knowledge of such dangerous or hazardous condition; provided, however, no written notice shall be required in connection with the fourth (4th) monetary default during any twelve (12)-month period in the event Subtenant has previously defaulted in its obligation to pay Fixed Rent hereunder (and notice thereof has been given by Sublandlord) three (3) times within the such twelve (12)-month period. Notwithstanding any of the foregoing or anything to the contrary contained in this Sublease or the Xxxxxxxxx, the time limits (the “Notice Periods”) contained in the Xxxxxxxxx for the giving of notices, making of demands or performing of any act, condition or covenant on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglectthe “Tenant” thereunder, or if for the Premises becomes vacant exercise by the “Tenant” thereunder of any right, remedy or desertedoption, then, and are changed for the purposes of incorporation herein by reference by shortening the same in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted instance by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below days, so that in each instance Subtenant shall have two (2) fewer days to observe or perform hereunder than Sublandlord has as the prime rate published “Tenant” under the Xxxxxxxxx; provided, however, that if the Xxxxxxxxx allows a Notice Period of two (2) days or less, then Subtenant shall nevertheless be allowed the number of days equal to one-half of the number of days in The Wall Street Journal on the date Landlord elects said remedy]; and each Notice Period to bring an action for specific performancegive any such notices, injunctionmake any such demands, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed such acts, conditions or covenants or exercise any such rights, remedies or options; provided, further, that if one-half of the number of days in the Notice Period is not a whole number, Subtenant shall be allowed the number of days equal to perform after one-half of the expiration number of days in the Notice Period rounded up to the next whole number.
(b) Upon the occurrence of an Event of Default by Subtenant, Sublandlord may, at its option, with or without notice or demand of any applicable kind to Subtenant or any other person, exercise any one or more of the following described remedies, in addition to all other rights and remedies provided at law, in equity or elsewhere herein, and such rights and remedies shall be cumulative and none shall exclude any other right allowed by law:
(i) Sublandlord may terminate this Sublease upon written notice and/or cure period to Subtenant, repossess and re-let the Subleased Premises, in which case Sublandlord shall be entitled to recover as full and final liquidated damages a lump sum equal to the amount of Fixed Rent, Real Estate Taxes, Landlord’s Costs and Operating Fund Payments remaining to be paid by Subtenant for what would have been the balance of the Term. The obligations in the paragraph shall survive the termination of this Sublease.
(except in an emergencyii) Sublandlord may, when no notice or cure period will be necessary or afforded)without terminating the Sublease, all at terminate Subtenant’s right of possession, repossess the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (Subleased Premises including, without limitation, reasonable attorneys' fees) incurred by Landlord following removing all or any part of Subtenant’s personal property in the Subleased Premises and to place such personal property in storage or a defaultpublic warehouse at the expense and risk of Subtenant, whether or not suit is instituted; and relet the same for the account of Subtenant for such rent and upon such terms as shall be Additional satisfactory to Sublandlord. For the purpose of such reletting, Sublandlord is authorized to decorate, repair, remodel or alter the Subleased Premises. Subtenant shall pay to Sublandlord as damages a sum equal to all Rent payable upon demand. In determining the Rent due under this Sublease for the balance of the TermTerm unless and until the Subleased Premises are relet. Provided the Subleased Premises are relet on an arms’ length, all Additional Rent commercially reasonable basis, Subtenant shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver responsible for payment upon demand to Sublandlord of any breach of any covenant, condition, or agreement herein contained shall operate deficiency between the rent as a waiver of relet and the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover rent for the balance of such Rent or pursue this Sublease, all costs and expenses of reletting, and all reasonable decoration, repairs, remodeling, alterations, additions and collection of the rent accruing there from. Subtenant shall not be entitled to any other remedy rents received by Sublandlord in excess of the rent provided for in this LeaseSublease. Landlord Sublandlord shall have use reasonable efforts to mitigate Subtenant’s damages under this subsection (ii), which efforts shall be satisfied by Sublandlord listing the Subleased Premises with a lien for the payment broker in accordance with then-prevailing commercial leasing custom and practice. No re-entry or taking possession of the Rent upon Subleased Premises by Sublandlord shall be construed as an election to terminate this Sublease unless a written notice of such intention be given to Subtenant or unless the termination thereof be decreed by a court of competent jurisdiction. If the Sublandlord elects to re-occupy all of the goodsSubleased Premises for its own use, wares, chattels, fixtures, furniture then Subtenant shall have no liability for any amounts described herein from and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed after such occupancy by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of LandlordSublandlord.
Appears in 1 contract
Samples: Sublease (OvaScience, Inc.)
Defaults Remedies. If Tenant fails Subject to pay the Rentprovisions of section 31 hereof (Grace Period and Notice of Default), in the event Lessee shall at any time be in default in the payment of rent herein reserved, or of any installment thereofother sum required to be paid by Lessee under this Lease, within five (5) days after or in the same becomes due and payableperformance of or compliance with any of the terms, covenants, conditions or provisions of this Lease, or if Tenant violates or fails or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to Lessee shall be kept and performed within thirty (30) days after receipt of written notice of such failure or neglectadjudicated a bankrupt, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises shall make an assignment for the benefit of Tenantcreditors or shall file a bill xx equity or otherwise initiate proceedings in bankruptcy or for reorganization or an arrangement under any federal or state law, or if any proceedings in liquidation bankruptcy or for the appointment of a receiver shall be instituted by any creditor of Lessee under any state or federal law, or if Lessee is levied upon and discharge, in whole is about to be sold out upon the Premises under execution or in part, as other legal process (the case may be, occurrence of the liability any such event to constitute an event of Tenant default and a breach under the terms and provision of this Lease. In ), then and in addition to the foregoing remedies, Landlord will also any other rights or remedies Lessor may have the following remedies to the extent permitted by law and all other remedies afforded to it under this Lease or at law or in equity, Lessor shall have the following rights:
(a) To re-enter the Premises and remove all persons and all or any property therefrom, either by summary dispossess proceedings or any suitable action or proceeding at law, and repossess and enjoy the Premises, together with all additions, alterations and improvements. Upon recovering possession of which shall be cumulative: to the Premises by reason of or based upon or arising out of a default on the part of Lessee, Lessor may, at Lessor's option, either terminate this Lease; to declare due Lease or make such alterations and payable all Rent for the unexpired Term repairs as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary in order to relet the Premises and relet the Premises or afforded)any part or parts thereof, all either in Lessor's name or otherwise, for a term or terms which may at Lessor's option be less than or exceed the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for period which would otherwise have constituted the balance of the Termterm of this Lease and at such rent or rents and upon such other terms and conditions, and to such person or persons as may be available through the exercise of commercially reasonable efforts; upon each such reletting all Additional Rent rents received by Lessor from such reletting shall be applied: first, to the payment of any indebtedness other than rent
(b) If, after using its reasonable efforts for a commercially reasonable time, Lessor is unable to relet the Premises to a suitable tenant after taking possession of the Premises in accordance with the foregoing Section 30(a), Lessor may, at its option, accelerate the whole or any part of the rent for the entire unexpired balance of the term of this Lease, as well as all other charges, payments, costs and expenses herein agreed to be paid by Lessee, and any rent or other charges, payments, costs and expenses if so accelerated shall, in addition to any and all installments of rent already due and payable and in arrears, and/or other charge or payment herein reserved, included or agreed to be treated or collected as rent and/or any other charge, expense or costs herein agreed to be paid by Lessee which may be due and payable and in arrears, be deemed due and payable immediately as if, by the terms and provisions of this Lease, such accelerated rent and other charges, payments, costs and expenses were on that date payable in advance.
(c) If, at any time or from time to time after Lessee's payment of accelerated rent in accordance with the provisions of either Section 30(a) or 30(b) above, it is determined that the projected rental deficiency upon which such accelerated payment was based was incorrect in any material respect, either because Lessor was subsequently able to relet the Premises for some portion of the unexpired term, or because Lessor's new tenant failed to pay the rental projected to be paid for any reason, then the accelerated rent shall be redetermined, and if there was a deficiency therein Lessee shall pay such further amount to Lessor, and if there was an overpayment, Lessor shall reimburse Lessee to the extent of the overpayment, provided that Lessor shall be entitled to offset against that amount the costs of collection thereof (including reasonable attorney's fees).
(d) No right or remedy herein conferred upon or reserved to Lessor is intended to be exclusive of any other right or remedy herein or by projecting into the future the Additional Rent payable on the date of default increasing law provided but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity or by a compounding five percent statute.
(5%e) per Lease Year. No waiver by Lessor of any breach by Lessee of any covenantof Lessee's obligations, condition, agreements or agreement covenants herein contained shall operate as be a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision or of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant any obligation, agreement or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rentcovenant, nor shall any endorsement or statement on forbearance by landlord to seek a remedy for any check breach by Lessee be a waiver by Lessor of any rights and remedies with respect to such or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordsubsequent breach.
Appears in 1 contract
Samples: Lease Agreement (Sauer Inc)
Defaults Remedies. If Tenant fails Upon Borrower’s or Pledgor’s failure to pay or perform any of its Obligations hereunder or under any of the Rentdocuments evidencing the Obligations when due, or upon the occurrence of a default or Event of Default as defined in any of such documents, the Lender may, at its option, from time to time, and notwithstanding any waiver or condonation at that time or at any other time, exercise any one or more of the rights and remedies of a secured party afforded by the Uniform Commercial Code, as from time to time in effect in the Commonwealth of Massachusetts, or afforded by the other statutory or decisional law of the Commonwealth of Massachusetts, or granted to the Lender under the terms of this Agreement or any other document evidencing or securing the Obligations, and Lender is hereby authorized to redeem the Collateral and apply the proceeds thereof, net of any penalties, to the outstanding Obligations. Without limiting the generality of the foregoing, the Pledgor expressly agrees that in any such event, the Lender, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or on the Pledgor or any other person (all and each of which demands, advertisements and/or notices are hereby expressly waived, forthwith collect, receive, appropriate and realize on the Collateral, or any installment part thereof, within five (5) days after and forthwith sell, assign, give option or options to purchase, contract to sell or otherwise dispose of and deliver the same becomes due and payableCollateral, or if Tenant violates any part thereof, in one or fails more units, parcels, or neglects to keep and perform lots at one or more public or private sales, at any of the covenantsLender’s offices or elsewhere, conditionson such terms and conditions as it may deem advisable and at such prices as it may deem appropriate, and agreements herein contained for cash or on credit or for future delivery without assumption of any credit risk, with the right to the Lender upon any such sale or sales, public or private, to purchase the whole or any part of said Collateral so sold. Any purchaser at any such sale or sales shall acquire the property sold absolutely free from any claim or right on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, thenPledgor, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and Pledgor hereby waives (to the extent permitted by law Landlord will be entitled to applicable law) all rights, redemptions, stays and appraisal rights which Pledgor now has, or may at any time in the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of lawfuture have, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process under any rule of law or otherwisestatute now existing or hereafter enacted. The net proceeds of any such collection, Tenant nevertheless agrees recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to remain answerable for the care, safekeeping or otherwise of any and all damage, deficiency of the Collateral or loss in any way relating to the rights of Rent which Landlord may sustain by such re-entrythe Lender hereunder, including reasonable attorneys' ’ fees and court costs; and legal expenses, shall be applied to the payment of the Obligations in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, order as the case Lender may bedetermine, and, after all of the liability Obligations have been paid in full and after payment of Tenant under the terms and any other amount required by any provision of this Lease. In addition law, including (without limitation) any section of the Uniform Commercial Code, the balance (if any) of such proceeds shall be remitted to the foregoing remedies, Landlord will also have the following remedies to Pledgor or as otherwise required by a court of competent jurisdiction. To the extent permitted by law applicable law, the Pledgor waives all claims, damages and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for demands against the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder Lender arising out of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, retention or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance sale of the Term, all Additional Rent shall be determined by projecting into Collateral unless resulting from such Lender’s willful misconduct. The Pledgor agrees that the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount Lender need not give more than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days days’ notice served upon Tenant (which notice shall be deemed given on the earlier of mailing or receipt) of the time and place of any public sale. or of the time after which a private sale or other intended disposition is to take place and that such notice is reasonable notification of such matters. No notification need be given to the Pledgor if he has signed after default a statement renouncing or modifying any right to notification of sale or other intended disposition. The Lender may, without notice or publication, adjourn any public or private sale, or cause such sale to be adjourned from time to time by posting upon the Premises or such lien may be enforced in any other lawful manner announcement at the option time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which such sale is so adjourned. Pledgor shall remain liable for any deficiency if the net proceeds of Landlordany sale or disposition of the Collateral are insufficient to pay all Obligations.
Appears in 1 contract
Defaults Remedies. If Tenant fails (A) Lessee shall be deemed to pay be in default hereunder upon the Rentoccurrence of any of the following events (“Events of Default”):
(1) Lessee shall fail to make any payment due hereunder within ten (10) days after its due date; (2) Lessee shall fail to perform or observe any other term, covenant, or condition of this Lease Agreement; (3) Lessee shall have abandoned the Equipment or is no longer entitled to keep the Equipment at its delivered location; (4) any installment thereofrepresentation or warranty of Lessee shall have been untrue in any material respect when made, within five or, any information submitted by Lessee to Lessor shall be false or misleading in any material respect; or (5) days after Lessee shall have defaulted under any other agreement with Xxxxxxxx Scotsman.
(B) Upon the same becomes occurrence of an Event of Default, Lessor may declare this Lease Agreement to be in default, and thereafter may exercise any one or more of the following remedies: (1) Declare the rent for the Term, any Extension Period thereof and all other unpaid rent, fees, taxes, and charges including but not limited to delay/storage fees and/or termination charges under this Lease Agreement and/or any other agreement with Xxxxxxxx Scotsman immediately due and payable; (2) Repossess, retake, and/or retain any or if Tenant violates or fails or neglects to keep and perform any all of the covenantsEquipment free of all rights and claims of Lessee without notice, conditionswithout legal process or judicial intervention, and agreements herein contained on without releasing Lessee of any term, covenant or condition provided herein; (3) Sell or otherwise dispose of any or all of the part of Tenant to be kept Equipment, whether or not in Lessor’s possession, in a commercially reasonable manner and performed within thirty (30) days after receipt of written notice apply the net proceeds of such failure or neglectdisposition, or if the Premises becomes vacant or desertedafter deducting all costs, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession obligations of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable Lessee with Lessee remaining liable for any and all damage, deficiency deficiency; (4) Terminate this Lease Agreement and/or any other agreement with Xxxxxxxx Scotsman; and/or (5) Exercise any other right or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded remedy available to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it Lessor at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No Lessor’s waiver of any breach Event of any covenant, condition, or agreement herein contained Default shall operate as not constitute a waiver of the covenant, condition any other Event of Default or agreement itself, or a waiver of any subsequent breach thereof. No provision term or condition of this Lease Agreement. Lessee shall pay all Lessor’s legal fees and all other costs and expenses incurred by reason of any Event of Default. No right or remedy referred to herein is intended to be deemed exclusive and each may be exercised concurrently or separately and from time to have been waived by Landlord unless such waiver time. In the event Lessor shall repossess or retake the Equipment and there shall be in writing signed or attached to such Equipment any property owned by Landlord. No payment by Tenant or receipt by Landlord in the custody or control of a lesser amount than the Rent herein stipulated shall be deemed Lessee, then Lessor is hereby authorized to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling take possession of such property in the same manner as in the case for a period of chattel mortgages on default thereunder; said sale is to made upon ten ten
(10C) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of LandlordLESSEE AND LESSOR WAIVE ALL RIGHT TO TRIAL BY JURY OF ALL CLAIMS, DEFENSES, COUNTERCLAIMS, AND SUITS OF ANY KIND ARISING FROM OR RELATING TO THIS LEASE AGREEMENT.
Appears in 1 contract
Samples: Lease Agreement
Defaults Remedies. If Tenant fails to pay the Rent, or any installment thereof, within five (5) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. 12.1 12.1 In the event Seller shall fail to perform its obligations hereunder or to make full Closing in accordance with the terms hereof, Purchaser shall be entitled to: (i) waive the breach or default and proceed to Closing in accordance with the provisions of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, this Agreement without reduction of the liability of Tenant under the terms and provision Purchase Price; (ii) xxx Seller for specific performance of this LeaseAgreement; or (iii) terminate this Agreement by written notice to Seller, receive a return of the Deposit. In addition Notwithstanding the foregoing, nothing in this Agreement shall be deemed to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it limit Purchaser’s rights at law or in equityequity under any applicable terms of this Agreement that survive a Closing or termination of this Agreement.
12.2 12.2 If Purchaser shall fail to perform its obligations hereunder to make full Closing in accordance with the terms hereof when required to do so hereunder and all Conditions Precedent to Closing have been satisfied, all of which then the Deposit shall be cumulative: forfeited by Purchaser and retained by Seller as liquidated damages and as Seller’s sole remedy hereunder (it being expressly acknowledged that the amount and extent of damages suffered by Seller in such case would be difficult or impossible to terminate determine with exactitude) and Purchaser shall thereby be released and discharged from any and all further liability or obligation hereunder. Notwithstanding the foregoing, nothing in this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease Agreement shall be deemed to have been waived limit Seller’s rights at law or in equity under any applicable terms of this Agreement that survive a Closing or termination of this Agreement. 12.3 12.3 Depositing with the party conducting Closing of the Purchase Price in cash, the deed of conveyance, and such other funds and/or documents as are required of either party by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord the terms of a lesser amount than the Rent herein stipulated this Agreement, shall be deemed to be other than on account good and sufficient tender of performance of the earliest stipulated Rent, nor terms hereof.
12.4 12.4 A default by either party under this Agreement shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent default by the taking and selling of same party under the Asset Purchase Agreement which shall entitle the non- defaulting party to the remedies available to such property in non-defaulting party under the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of LandlordAsset Purchase Agreement.
Appears in 1 contract
Samples: Real Estate Purchase Agreement
Defaults Remedies. If Section 14.01. If, during the Term, any one or more of the following acts or occurrences (any one of such occurrences or acts being hereinafter called an Event of Default) shall happen:
(a) The Tenant fails shall default in making any payment of Basic Rent or any Additional Rent (including without limitation, all sums due under the Note) as and when the same shall become due and payable, and such default shall continue for a period of ten (10) days after notice from the Landlord that such payment is due and unpaid; or
(b) The Tenant shall default in the performance of or compliance with any of the other covenants, agreements, terms or conditions of this Lease to pay be performed by the RentTenant (other than any default curable by payment of money), and such default shall continue for a period of fourteen (14) days after written notice thereof from the Landlord to the Tenant, or, in the case of a default which cannot with due diligence be cured within fourteen (14) days, the Tenant shall fail to proceed promptly (except for unavoidable delays) after the giving of such notice and with all due diligence to cure such default and thereafter to prosecute the curing hereof with all due diligence (it being intended that as to a default not susceptible of being cured with due diligence within fourteen (14) days, the time within which such default may be cured shall be extended for such period as may be reasonably necessary to permit the same to be cured with all due diligence); or
(c) The Tenant or any guarantor of this Lease shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any installment thereofpetition or answer seeking any reorganization, composition, readjustment or similar relief under any present or future bankruptcy or other applicable law, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver, or liquidator of the Tenant or any guarantor of this Lease or of all or any substantial part of its properties or of all or any part of the Demised Premises; or
(d) If, within five sixty (560) days after the same becomes due and payablefiling of an involuntary petition in bankruptcy against the Tenant or any guarantor of this Lease, or if the commencement of any proceeding against the Tenant violates or fails such guarantor seeking any reorganization, composition, readjustment or neglects to keep and perform similar relief under any law, such proceeding shall not have been dismissed, or if, within sixty (60) days after the appointment, without the consent or acquiescence of the covenantsTenant or such guarantor, conditionsof any trustee, and agreements herein contained on receiver or liquidator of the Tenant or such guarantor, or of all or any part of the Demised Premises, such appointment shall not have been vacated or stayed on appeal or otherwise, or if, within sixty (60) days after the expiration of any such stay, such appointment shall have been vacated, or if, within sixty (60) days after the taking possession, without the consent or acquiescence of the Tenant or such guarantor, of the property of the Tenant, or of such guarantor by any governmental office or agency pursuant to statutory authority for the dissolution or liquidation of the Tenant or such guarantor, such taking shall not have been vacated or stayed on appeal or otherwise; or
(e) If the Demised Premises shall be kept and performed within abandoned by the Tenant for a period of thirty (30) consecutive days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every any such event, and during the continuance thereof, the Landlord may, at its option, then or thereafter while any such Event of Default shall continue and notwithstanding the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to fact that the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole have any other remedy hereunder or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, by notice to the Tenant, designate a date, not less than ten (10) days after the giving of such notice, on which this Lease shall terminate; and thereupon, on such date the Term of this Lease and the estate hereby granted shall expire and terminate upon the date specified in such notice with the same force and effect as if the date specified in such notice was the date hereinbefore fixed for the expiration of the Term of this Lease, and all rights of which the Tenant hereunder shall expire and terminate, but the Tenant shall remain liable as hereinafter provided. Additionally, Tenant agrees to pay, as Additional Rent, all attorney's fees and other expenses incurred by the Landlord in enforcing any of the obligations under this Lease, this covenant to survive the expiration or sooner termination of this Lease.
Section 14.02. If this Lease is terminated as provided in Section 14.01, or as permitted by law, the Tenant shall peaceably quit and surrender the Demised Premises to the Landlord, and the Landlord may, without further notice, enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceedings, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither the Tenant nor any person claiming through or under the Tenant by virtue of any law or an order of any court shall be cumulative: entitled to terminate possession or to remain in possession of the Demised Premises, and the Landlord, at its option, shall forthwith, notwithstanding any other provision of this Lease; , be entitled to declare due recover from the Tenant (in lieu of all other claims for damages on account of such termination) as and payable for liquidated damages an amount equal to the excess of all Basic Rent and Additional Rent reserved hereunder for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder portion of the Term of this Lease discounted at the rate of six (6%) percent per annum to the then present worth, over the fair rental value of the Demised Premises at the time of termination for such unexpired portion of the Term. Nothing herein contained shall limit or prejudice the right of the Landlord, in any bankruptcy or reorganization or insolvency proceeding, to prove for and declare it obtain as liquidated damages by reason of such termination an amount equal to the maximum allowed by any bankruptcy or reorganization or insolvency proceedings, or to prove for and obtain as liquidated damages by reason of such termination, an amount equal to the maximum allowed by any statute or rule of law whether such amount shall be greater or less than the excess referred to above.
Section 14.03. If the Landlord re-enters and obtains possession of the Demised Premises, as provided in Section 14.02 of this Lease, following an Event of Default, the Landlord shall have the right, without notice, to repair or alter the Demised Premises in such manner as the Landlord may deem necessary or advisable so as to put the Demised Premises in good order and to make the same rentable, and shall have the right, at the Landlord's option, to relet the Demised Premises or a part thereof, and the Tenant shall pay to the Landlord on demand all immediately due reasonable expenses incurred by the Landlord in obtaining possession, and payable [with a present value discount two (2) whole percentage points below in altering, repairing and putting the prime rate published Demised Premises in The Wall Street Journal on good order and condition and in reletting the same, including reasonable fees of attorneys and architects, and all other reasonable expenses or commissions, and the Tenant shall pay to the Landlord upon the rent payment dates following the date Landlord elects said remedy]; of such re-entry and to bring an action including the date for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except the Term of this Lease in an emergencyeffect immediately prior to such re-entry, when no notice or cure period will be necessary or afforded), all at the cost sums of money which would have been payable by the Tenant as Basic Rent and Additional Rent payable upon demand. hereunder on such rent payment dates if the Landlord had not re-entered and resumed possession of the Demised Premises, deducting only the net amount of Basic Rent and Additional Rent, if any, which the Landlord shall actually receive (after deducting from the gross receipts the expenses, costs and payments of the Landlord which in accordance with the terms of this Lease would have been borne by the Tenant) in the meantime from and by any reletting of the Demised Premises, and the Tenant shall also pay remain liable for all sums otherwise payable by the Tenant under this Lease, including but not limited to the expense of the Landlord aforesaid, as well as for any deficiency aforesaid, and the Landlord shall have the right from time to time to begin and maintain successive actions or other legal proceedings against the Tenant for the recovery of such deficiency, expenses (includingor damages or for a sum equal to any Basic Rent payment and Additional Rent.
Section 14.04. The Tenant hereby waives all right of redemption to which the Tenant or any person under it may be entitled by any law now or hereafter in force. In the event of an Event of Default which results in the Landlord recovering possession of the Demised Premises, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demandunder an ongoing obligation to mitigate Tenant's damages. The Landlord's remedies hereunder are in addition to any remedy allowed by law.
Section 14.05. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver event of any breach or threatened breach by Tenant of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenantagreements, condition terms, covenants or agreement itselfconditions contained in this Lease, Landlord shall be entitled to enjoin such breach or threatened breach and shall have the right to invoke any right or remedy allowed at law or in equity or by statute or otherwise as though re-entry, summary dispossess proceedings, and other remedies were not provided for in this Lease. During the pendency of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived proceedings brought by Landlord unless such waiver to recover possession by reason of default, Tenant shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed continue all money payments required to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfactionmade to Landlord, and Landlord may accept such check or payment without prejudice payments for use and occupancy of the Demised Premises. In such event, Tenant waives its right in such proceedings to Landlord's right to recover claim as a defense that the balance receipt of such Rent or pursue any other remedy provided in this Lease. money payments by Landlord shall have constitutes a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed waiver by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling Landlord of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlorddefault.
Appears in 1 contract
Samples: Lease Agreement (Able Energy Inc)
Defaults Remedies. If Tenant fails (a) Agent shall not be deemed to pay have knowledge of the Rentoccurrence of a Default or of an Event of Default unless Agent has received written notice from a Lender or Borrower strictly in accordance with this Agreement specifying such Default or Event of Default and stating that such notice is a “Notice of Default.” In the event that Agent receives such a written notice of the occurrence of a material Default or Event of Default, Agent shall give prompt notice thereof to Lenders. Agent shall promptly send to each Lender a copy of any notice of a Default or Event of Default that Agent sends to Borrower or Guarantor. Agent, following consultation with Lenders, shall (subject to Section 10.7) take such action with respect to such Default or Event of Default which is continuing, including with respect to the exercise of remedies or the realization on, or operation or disposition of, any installment thereofor all of the Collateral or any other collateral for the Loan, within five (5) days after as shall be agreed upon by the same becomes due Required Lenders; provided, however, that, unless and payableuntil Agent shall have received such directions from the Required Lenders, if at all, Agent may take such action, or if Tenant violates refrain from taking such action, with respect to such Default or fails Event of Default as it shall deem, in its sole discretion, to be in the best interest of Lenders and any action taken or neglects failure to keep act in the absence of an agreement by the Required Lenders shall be binding on all Lenders and perform any other holder of all or any portion of the Loan or Participation therein. In no event shall Agent be required to take any such action which it determines would expose Agent to personal liability or would be contrary to or in violation of the Loan Documents or to Applicable Laws. Each Lender acknowledges and agrees that no individual Lender has the right, power or authority to take any action under any of the covenants, conditionsLoan Documents or against Borrower or other Borrower Party or any Collateral, and agreements herein contained shall not take or attempt to take any such action other than through Agent, and each Lender agrees not to attempt to separately enforce or exercise any of the provisions of any of the Loan Documents and any such attempt shall be null and void. Any Lender taking action in violation of the immediately preceding sentence agrees to indemnify and hold each other Lender and Agent harmless from and against claims, judgments, costs, liabilities, damages, losses and expenses (including court costs and reasonable attorneys’ fees) suffered, paid or incurred as a result of such Lender’s action.
(b) If Agent shall take possession of any of Collateral after the occurrence of any Event of Default under the Loan Documents (upon institution of foreclosure proceedings or otherwise), then (i) Agent on behalf of the part Lenders shall, in the exercise of Tenant the standard of care described in Section 10.1(a), have all necessary power and authority to make and implement any and all decisions and actions regarding the ownership, management, maintenance and day-to-day operations of the Collateral, and (ii) Agent shall collect all rents and other operating revenues generated by such Collateral (“REO Revenue”), and pay from such REO Revenue all expenses incurred by it in connection with the ownership, operation, management (including the fees of an independent management firm) and maintenance of such Collateral (collectively, “REO Expenses”). Agent shall have the right to hire an independent third party management firm or provider of the Provider Operations selected by Agent, provided such firm is hired on an arms-length basis for a commercially reasonable fee and for a term that can be kept and performed within terminated at no cost upon no more than thirty (30) days after receipt prior notice.
(c) If there shall be a foreclosure sale of written notice all or a portion of such failure or neglect, or if the Premises becomes vacant or desertedCollateral, then, and in each and every such eventunless otherwise directed by the Required Lenders, Agent shall credit bid at the option foreclosure sale on behalf of LandlordLenders. The initial credit bid shall be determined by Agent. If the initial credit bid is less than the entire Indebtedness, Tenant's right Agent shall have the right, in its sole discretion, to raise the amount of possession will thereupon cease said credit bid in response to any cash bid or bids made by others at said sale. Upon completion of a foreclosure sale and terminate, and the conveyance of the Collateral to the extent permitted by law Landlord will be entitled highest bidder, Agent shall render an accounting for monies received and monies expended between the date of taking possession of such Collateral and the date of conveyance to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of lawhighest bidder, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' feesexpenses of foreclosure. If the highest bidder shall be someone other than Agent, then, upon receipt from the highest bidder of the amount of the bid, Agent will disburse all funds received pursuant to the terms and conditions of this Agreement and the other Loan Documents. If the highest bidder shall be Agent, or if title shall be transferred to Agent by other means (i.e., deed-in-lieu of foreclosure), then Agent will cause the Collateral to be legally conveyed to a single-asset, single-purpose entity formed and owned by Lenders (the “REO Entity”), the interests in which shall be owned by Lenders or their nominees in proportion to the outstanding principal balance of each Lender’s Note to the aggregate outstanding principal balance of all Notes. Until such time as the written agreement described in subsection (d) incurred below is executed, Agent shall continue to have the sole power and authority with respect to the collateral as described in Section 10.3(b).
(d) If an REO Entity acquires the Collateral either by Landlord following foreclosure or deed in lieu of foreclosure or otherwise, then Lenders agree to negotiate in good faith an operating or similar agreement (an “REO Agreement”) for the REO Entity relating to the ownership, operation, maintenance, management, leasing and marketing of the Collateral. The terms of the REO Agreement shall include the following: (i) the Collateral will not be held as a default, long-term investment and will be marketed to sell such Collateral as Agent directs; (B) Agent shall have power and authority described in Section 10.3(b); and (C) each Lender shall waive any right to partition the Collateral. Agent shall be entitled to be paid an annual asset management fee (payable in equal monthly installments) in an amount equal to fifty basis points (0.50%) of the total committed Loan amount under the Loan Documents for its services in managing the REO Entity and Collateral (whether or not suit an independent management firm manages or leases the Collateral), plus all of Agent’s costs, charges and expenses incurred in connection with performing its services in managing the REO Entity and Collateral. Until such time as Lenders finalize and execute an REO Agreement, Agent shall continue to have the sole power and authority with respect to the collateral as described in Section 10.3(b).
(e) At all times Agent is instituted; in possession of the same Collateral or the REO Entity owns the Collateral: (i) all REO Revenue in excess of REO Expenses and necessary reserves for any period of determination shall be Additional Rent payable upon demand. In determining distributed to Lenders in accordance with the Rent due terms and provisions of this Agreement; and (ii) the excess, if any, of REO Expenses over REO Revenue for the balance any period of the Term, all Additional Rent determination shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed paid pursuant to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of LandlordSection 10.5.
Appears in 1 contract
Samples: Loan and Security Agreement (Varian Medical Systems Inc)
Defaults Remedies. If Tenant fails to pay the Rent, or any installment thereof, within five (5a) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform The occurrence of any of the covenantsfollowing shall constitute a default by Tenant under this Lease, conditionseach an “Event of Default;”
(i) if Tenant shall fail to pay any sum payable to Landlord hereunder when due, and agreements herein contained on the part of Tenant to be kept and performed within thirty such default shall continue uncured for more than ten (3010) days after receipt of written notice that the same is due;
(ii) if Tenant shall fail to perform or observe any of such failure the other covenants, terms or neglectconditions contained in this Lease for more than forty-five (45) days after written notice from Landlord, or if such longer period as is reasonably required to correct any such default, provided that Tenant promptly commences and diligently continues to effectuate a cure; or DRAFT
(iii) the Premises becomes vacant filing of a petition by or desertedagainst Tenant for adjudication as a bankruptcy or insolvency or for its reorganization or for the appointment pursuant to any local, thenstate or federal bankruptcy or insolvency law of a receiver or trustee of Tenant’s property; or, and in each and every such eventan assignment by Tenant for the benefit of creditors; or, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the taking possession of the Premises and property of Tenant by any local, state or federal governmental officer or agency or court-appointed official for the dissolution or liquidation of Tenant or for the operating, either temporary or permanent, of Tenant’s business; provided, however, that if any such action is commenced against Tenant the same shall not constitute a default if Tenant causes the same to be dismissed, stayed or discharged within ninety (90) days after the filing of same.
(b) Upon the occurrence of an Event of Default, Landlord may:
(i) re-enter the same without demand of Rent Premises and remove all persons and all or demand of possession any property therefrom, either by summary dispossession proceedings or by any suitable action or proceeding at law, and may forthwith proceed to recover repossess and enjoy the Premises, together with all additions, alterations and improvements. Upon recovering possession of the Premises by process reason of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In or based upon or arising out of an Event of Default on the event part of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such caseTenant, Landlord reserves full powermay, which is hereby acceded to by Tenantat Landlord’s option, either terminate this Lease or make such alterations and repairs as may be reasonably necessary in order to relet the Premises and relet the Premises or any part or parts thereof, either in Landlord’s name or otherwise, for a term or terms which may at Xxxxxxxx’s option be less than or exceed the benefit period which would otherwise have constituted the balance of the term of this Lease and upon such other terms and conditions as in Landlord’s sole discretion may seem advisable and to such person or persons as may in Landlord’s discretion seem best.
(ii) terminate this Lease and the term hereby created without any right on the part of Tenant to waive the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; whereupon Landlord shall be entitled to recover damages for violation of Tenant, ’s obligations
(c) No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy herein or by law provided but each shall be cumulative and in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all every other remedies afforded to it right or remedy given herein or now or hereafter existing at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable equity or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two by statute.
(2d) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred No waiver by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach by Tenant of any covenantof Tenant’s obligations, condition, agreements or agreement covenants herein contained shall operate as be a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision or of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant any obligation, agreement or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rentcovenant, nor shall any endorsement or statement on forebearance by Landlord to seek a remedy for any check breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordsubsequent breach.
Appears in 1 contract
Samples: Lease and Asset Transfer Agreement
Defaults Remedies. If Tenant 8.1 The following shall constitute events of default ("Events of Default") hereunder:
(a) Lessee fails to pay the Rentmake any payments to Lessor when due under this Lease;
(b) any representation or warranty of Lessee contained herein or in any document furnished to Lessor in connection herewith is incorrect or misleading in any material respect when made;
(c) Lessee fails to observe or perform any other covenant, agreement or warranty made by Lessee hereunder or under any document delivered pursuant hereto and such failure continues for 10 days after written notice thereof to Lessee;
(d) any default occurs under any other agreement for borrowing money or receiving credit under which Lessee or any installment thereofguarantor or general partner of Lessee may be obligated as borrow, within five lessee or guarantor, if such default (5i) days after consists of the same becomes failure to pay any indebtness when due and payable, or if Tenant violates or fails or neglects to keep and perform any other obligation thereunder and (ii) gives the holder of the covenantsindebtedness the right to accelerate the indebtness;
(e) Lessee, conditions, and agreements herein contained on the part any guarantor of Tenant to be kept and performed within thirty (30) days after receipt this Lease or any general partner of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises Lessee makes an assignment for the benefit of Tenantcreditors or files any petition or action under any bankruptcy, reorganization, insolvency or moratorium law, or any other law or laws for the relief of, or relating to, debtors;
(f) any guarantor of this Lease breaches or fails to perform any covenant in liquidation and dischargeits guaranty, or any letter of credit required by this Lease expires or terminates without Lessor's consent, or Lessor receives notice that the letter of credit will not be renewed in whole accordance with its terms;
(g) any involuntary petition is filed under any bankruptcy statute against Lessee, any guarantor of this Lease or in partany general partner of Lessee, as the case may beor any receiver, trustee, custodian or similar official is appointed to take possession of the liability properties of Tenant under the terms and provision Lessee, any guarantor of this Lease. In addition Lease or any general partner of Lessee, unless such petition or appointment is set aside or withdrawn or ceases to be in effect within 60 days from the foregoing remediesdate of the filing or appointment; or
(h) Lessee, Landlord will also have the following remedies to the extent permitted any guarantor of this Lease or any general partner of Lessee liquidates, dissolves, dies or enters into any partnership, joint venture (other than in its ordinary course of business), consolidation, merger or other combination, or sells, leases or disposes of a substantial portion of its business assets.
8.2 If any Event of Default occurs, Lessor, at its option, may:
(a) proceed by law and all other remedies afforded to it appropriate court action or actions either at law or in equity, all to enforce performance by Lessee of which shall be cumulative: the applicable covenants of this Lease or to recover damages for the breach thereof; or
(b) by notice in writing to Lessee terminate this Lease; , whereupon all rights of Lessee to declare due retain possession of and payable all Rent for use the unexpired Term Units shall terminate, but Lessee shall remain liable as hereinafter provided, and when the same becomes due and payable Lessor may, at its option, do any one or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder more of the Term following: (i) declare the aggregate Balance Due with respect to the Units and declare it all Other Charges immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published and recover any damages and expenses in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance addition thereto Lessor sustains because of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, representation or agreement herein warranty contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of in this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of rent; (ii) enforce the Rent security interest given hereunder pursuant to the Uniform Commercial Code or any other law; (iii) enter upon all the premises where any of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which Units may be and take possession of all or any of such Units; and (iv) require Lessee to return the Units as provided in or upon the Premises, Tenant hereby specifically waiving Section 9.
8.3 Lessor shall have any and all exemptions allowed rights given to a secured party by law; , and may, but is not required to, sell the Units in one or more sales. Lessor may purchase the Units at such lien may be enforced sale. Lessee acknowledges that sales for cash or on credit to a wholesaler, retailer or user of the nonpayment of any installment of Rent by the taking and selling Units, or at public or private auction, are all commercially reasonable. The proceeds of such property sale shall be applied in the same manner as in following order: FIRST, to the case reasonable expenses of chattel mortgages on default thereunder; said retaking, holding, preparing for sale is to made upon ten (10) days notice served upon Tenant by posting upon and selling, including the Premises or such lien may be enforced in allocated time charges, costs and expenses of internal counsel for Lessor and any other lawful manner attorneys' fees and expenses incurred by Lessor; SECOND, to the amounts, except those specified below, which under the terms of this Lease are due or have accrued; THIRD, to late charges; and FOURTH, to the aggregate Balance Due. Any surplus shall be paid to the person or persons entitled thereto. If there is a deficiency, Lessee will promptly pay the same to Lessor.
8.4 Lessee agrees to pay all allocated time charges, costs and expenses of internal counsel for Lessor and any other attorneys' fees, expenses or out-of-pocket costs incurred by Lessor in enforcing this Lease.
8.5 The remedies herein provided in favor of Lessor shall not be deemed exclusive, but shall be cumulative, and shall be in addition to all other remedies in its favor existing at law or in equity.
8.6 If Lessee fails to perform any of its agreements contained herein, Lessor may perform such agreement, and Lessee shall pay the option of Landlordexpenses incurred by Lessor in connection with such performance upon demand.
Appears in 1 contract
Defaults Remedies. If 17.1 The occurrence of any of the following shall constitute an Event of Default under this Lease by Tenant:
(a) A failure by Tenant fails to pay the Rent, when due all or any installment thereof, within five part of the rent or other monetary payment required to be paid by Tenant to Landlord or third parties as required by this Lease where such failure continues for fifteen (515) days after the same becomes due and payable, or if receipt of written notice from Landlord to Tenant violates or fails or neglects of such default;
(b) A failure by Tenant to keep observe and perform any non-monetary provisions of the covenants, conditions, and agreements herein contained on the part of Tenant this Lease to be kept and observed or performed within by Tenant where such failure continues for thirty (30) days after receipt of written notice from Landlord to Tenant of such failure or neglectdefault; provided, or that if the Premises becomes vacant or desertednature of such default is curable but that the same cannot with due diligence be cured within thirty (30) days, then, Tenant shall not be deemed to be in default if it shall within such thirty day period commence curing the default and in each and every such event, at thereafter diligently prosecutes the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and same to the extent permitted by law Landlord will be entitled to the possession completion;
(c) A violation of the Premises and to re-enter the same without demand provisions of Rent Section 13.1 or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. 13.2.
17.2 In the event of such re-entry any Event of Default by process of law or otherwiseTenant which remains uncured beyond any applicable cure period, Tenant nevertheless agrees then, in addition to remain answerable for any and all damage, deficiency or loss of Rent which rights and remedies available to Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all Landlord shall have the right, by giving written notice to Tenant of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; such election by Landlord, to accelerate the Rent all rent due hereunder for the remainder of the Term and declare it immediately xxx for rent or to terminate this Lease and all immediately due rights of Tenant hereunder and payable [with a present value discount two (2) whole percentage points below to re-enter the prime rate published in The Wall Street Journal on Demised Premises or Improvements without waiving the date right to recover from Tenant all damages which result from Tenant’s default.
17.3 If Landlord elects said remedy]; and to bring an action for specific performance, injunctionre-enter as above provided, or takes possession of the Demised Premises or Improvements pursuant to legal proceedings or pursuant to any notice or other equitable relief to prevent any threatened remedy provided by law or impending default or to end any existing default. In additionin equity, Landlord may perform relet the Demised Premises or Improvements located thereon or any obligation which part or parts thereof for such term or terms and upon such provisions as Landlord, in its sole judgment, may deem advisable, and Landlord shall have the right to make repairs and alterations to the Demised Premises and the Improvements located thereon. With or without terminating this Lease, Landlord may enter upon and take possession of the Demised Premises and Improvements and expel or remove Tenant has failed and any other person who may be occupying the Demised Premises and Improvements or any part thereof, without being liable for prosecution or any claim for any damages or liability therefor. Landlord may thereupon make such alterations and repairs as, in Landlord’s reasonable discretion, are necessary to perform after relet the expiration Demised Premises and Improvements, and relet the Demised Premises and Improvements or any part thereof, without notice to Tenant, for such rent and such use, and for such period of any applicable notice and/or cure period (except time and subject to such terms and conditions as Landlord, in an emergencyits reasonable discretion, when no notice or cure period will be necessary or afforded), all at may deem advisable and receive the cost of Tenant as Additional Rent payable upon demandrent therefor. Tenant shall also pay be liable for any and all expenses (includingincluding attorneys’ fees, without limitationdisbursements, reasonable attorneys' actual costs and brokerage fees) incurred by Landlord following a in re-entering and repossessing the Demised Premises and Improvements, in making good any default of Tenant, in painting, altering, repairing or dividing the Demised Premises and Improvements, in protecting and preserving the Demised Premises and Improvements by use of security guards and caretakers, and in reletting the Demised Premises and Improvements. Tenant shall pay to Landlord, on demand, any deficiency that may arise by reason of any reletting. Any suit 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 in subsequent separate actions, as said damages shall have been made more easily ascertainable by successive relettings. Landlord shall not be liable for any failure to relet the Demised Premises and Improvements or any part thereof or for any failure to collect any rent due upon any such reletting. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such prior default. If Landlord terminates this Lease pursuant to Section 17.2, Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant’s default, whether or not suit is instituted; an amount equal to the same shall difference between (i) all Minimum Annual Rent and other sums which would be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on under this Lease from the date of default increasing such demand (or, if it is earlier, the date to which Tenant shall have satisfied in full its obligations under the preceding paragraph) for what would be the then unexpired Term in the absence of such termination, and (ii) the fair market rental value of the Demised Premises and Improvements over the same period (net of all expenses and all vacancy periods reasonably projected by a compounding five Landlord to be incurred in connection with the reletting of the Demised Premises and Improvements), with such differential discounted at the rate of ten percent (510%) per Lease Yearannum. No waiver Nothing herein shall be construed to affect or prejudice Landlord’s right to prove, and claim in full, unpaid rent or any other amounts accrued prior to termination of this Lease. Landlord shall, to the extent permitted by law, have (in addition to all other rights) a right of distress for rent as security for all Minimum Annual Rent and any other sums payable under this Lease. Tenant, on its own behalf and on behalf of all persons claiming through or under Tenant, including all creditors, does hereby specifically waive and surrender any and all rights and privileges, so far as is permitted by law, which Tenant and all such persons might otherwise have under any present or future law (1) to the service of any breach notice to quit or of Landlord’s intention to re-enter or to institute legal proceedings, which notice may otherwise be required to be given, (2) to redeem the Demised Premises or Improvements, (3) to re-enter or repossess the Demised Premises or Improvements, (4) to restore the operation of this Lease, with respect to any dispossession of Tenant by judgment or warrant of any covenant, conditioncourt or judge, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itselfany re-entry by Landlord, or any expiration or termination of any subsequent breach thereofthis Lease, whether such dispossession, re-entry, expiration or termination shall be by operation of law or pursuant to the provisions of this lease or (5) which exempts property from liability for debt or for distress for rent. No provision of The words “dispossession,” “re-enter,” “re-entry,” “reentered,” “repossess” and “redeem” as used in this Lease shall not be deemed to be restricted to their technical legal meanings.
17.4 The term “rent” and “rental” as used in this Section 19 and elsewhere in this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated and mean Minimum Annual Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord real property taxes, late charges, interest, attorneys’ fees and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed other sums, however designated, required to be paid by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is Tenant hereunder, whether payable to made upon ten (10) days notice served upon Tenant by posting upon the Premises Landlord or such lien may be enforced in any other lawful manner at the option of Landlordthird parties.
Appears in 1 contract
Defaults Remedies. If Tenant fails 8.1 The occurrence of any of the following events or conditions shall constitute an "Event of Default" under this Deed of Trust:
(a) Any failure to pay the Rent, any principal or interest or any installment thereof, within five other part of the Obligation when the same shall become due and payable and such failure continues for ten (510) days after written notice thereof to Trustor. No notice, however, shall be required after maturity of any of the same becomes due and payable, Obligation.
(b) Any failure or if Tenant violates neglect to perform or fails or neglects to keep and perform observe any of the covenants, conditions, provisions or agreements of this Deed of Trust, the Note, the Grant of Production Payment (the "Royalty Agreement") of even date herewith by and agreements herein between Trustor and Beneficiary, and that Environmental Indemnification Agreement (the "Indemnity Agreement") dated of even date herewith, by and between Trustor and Beneficiary; or any other document or instrument executed or delivered in connection with the Obligation (other than a failure or neglect described in one or more of the other provisions of this Paragraph 8.1) and such failure or neglect either (i) continues unremedied for a period of thirty (30) days after written notice thereof to Trustor, or (iii) can be remedied, although not within thirty (30) days even by prompt and diligent action, but such remedy is not commenced within thirty (30) days written notice after thereof to Trustor or is not diligently prosecuted to completion within a total of one hundred twenty (120) days from the date of such notice.
(c) Any warranty, representation or statement contained in this Deed of Trust, the Note, the Indemnity Agreement, the Royalty Agreement, or any other document or instrument executed or delivered in connection with the Obligation, or made or furnished to Beneficiary by or on behalf of Trustor, that shall be or shall prove to have been false when made or furnished and such warranty, representation or statement (i) continues unremedied for a period of thirty (30) days after written notice thereof to Trustor, or (iii) can be remedied, although not within thirty (30) days even by prompt and diligent action, but such remedy is not commenced within thirty (30) days written notice after thereof to Trustor or is not diligently prosecuted to completion within a total of one hundred twenty (120) days from the date of such notice.
(d) The filing by Trustor, (or against Trustor or to which Trustor acquiesces or that is not dismissed within forty- five (45) days after the filing thereof) of any proceeding under the federal bankruptcy laws now or hereafter existing or any other similar statute now or hereafter in effect; the entry of an order for relief under such laws with respect to Trustor; or the appointment of a receiver, trustee, custodian or conservator of all or any part of Tenant the assets of Trustor.
(e) The insolvency of Trustor, or the execution by Trustor of an assignment for the benefit of creditors; or the convening by Trustor of a meeting of its creditors, or any class thereof, for purposes of effecting a moratorium upon or extension or composition of its debts; or the failure of Trustor to be kept and performed pay its debts as they mature; or if Trustor is generally not paying its debts as they mature.
(f) The admission in writing by Trustor that it is unable to pay its debts as they mature or that it is generally not paying its debts as they mature.
(g) The liquidation, termination or dissolution of Trustor or any such endorser or guarantor, if a corporation, partnership or joint venture.
(h) Any levy or execution upon, or judicial seizure of, any portion of the Trust Property, the Personal Property, or any other collateral or security for the Obligation.
(i) Any attachment or garnishment of, or the existence or filing of any lien or encumbrance other than any Permitted Exceptions against, any portion of the Trust Property, the Personal Property, or any other collateral or security for the Obligation, that is not removed or released within fifteen (15) days after its creation.
(j) The institution of any legal action or proceedings to enforce any lien or encumbrance upon any portion of the Trust Property, the Personal Property, or any other collateral or security for the Obligation, that is not dismissed within fifteen (15) days after its institution.
(k) The abandonment by Trustor of all or any part of the Trust Property.
(l) The existence of any encroachment upon the Trust Property that has occurred without the approval of Beneficiary that is not removed or corrected within thirty (30) days after receipt its creation.
(m) The demolition or destruction of, or any substantial damage to, any portion of written the Trust Property that is not adequately covered by insurance, or the loss, theft or destruction of, or any substantial damage to, any portion of the Personal Property or any other collateral or security for the Obligation, that is not adequately covered by insurance.
(n) Subject to Section 8.1(b) or 8.1(c) above, the occurrence of any event of default under the Note, the Indemnity Agreement, the Royalty Agreement, or any other document or instrument executed or delivered in connection with the Obligation.
8.2 Upon the occurrence of any Event of Default, and at any time while such Event of Default is continuing, Beneficiary may do one or more of the following:
(a) Declare the entire Obligation to be immediately due and payable, and the same, with all costs and charges, shall be collectible thereupon by action at law.
(b) Give such notice of default and of election to cause the Trust Property to be sold as may be required by law or as may be necessary to cause Trustee to exercise the power of sale granted herein. Trustee shall then record and give such failure notice of trustee's sale as then required by law and, after the expiration of such time as may be required by law, may sell the Trust Property at the time and place specified in the notice of sale, as a whole or neglectin separate parcels as directed by Beneficiary, or if by Trustor to the extent required by law, at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale, all in accordance with applicable law. Trustee, from time to time, may postpone or continue the sale of all or any portion of the Trust Property by public declaration at the time and place last appointed for the sale. No other notice of the postponed sale shall be required. Upon any sale, Trustee shall deliver its deed conveying the property sold, without any covenant or warranty, express or implied, to the purchaser or purchasers at the sale. The recitals in such deed of any matters or facts shall be conclusive as to the accuracy thereof. Any person, including Trustor, Trustee or Beneficiary, may purchase at the sale.
(c) Commence proceedings for foreclosure of this Deed of Trust in the manner provided by law for the foreclosure of a real property mortgage.
(d) Exercise any or all of the remedies of a secured party under the Uniform Commercial Code with respect to the Personal Property. If Beneficiary should proceed to dispose of any of the Personal Property in accordance with the provisions of the Uniform Commercial Code, ten (10) days' notice by Beneficiary to Trustor shall be deemed to be commercially reasonable notice under any provision of the Uniform Commercial Code requiring notice. Trustor, however, agrees that all property of every nature and description, whether real or personal, covered by this Deed of Trust, together with all personal property used on or in connection with the Premises becomes vacant or desertedany business conducted thereon by the Trustor and covered by separate security agreements, thenis encumbered as one unit, that this Deed of Trust and such security interests, at Beneficiary's option, may be foreclosed or sold in the same proceeding, and in each that all property encumbered (both realty and every such eventpersonalty), at Beneficiary's option, may be sold as such in one unit as a going business, subject to the option provisions of Landlordapplicable law.
(e) Without regard to the adequacy of any security for the Obligation or the solvency of Trustor or any other person or entity, Tenantsend notifications to any and all lessees and tenants under the Leases that all Rents shall be paid to Beneficiary. Thereafter, Beneficiary shall be entitled to collect the Rents until Trustor cures all Events of Default and may apply the Rents collected at its sole discretion to the maintenance of the Trust Property and/or the payment of the Obligation.
(f) Apply any funds in the possession or control of Beneficiary under the provisions of Paragraph 5.6 hereof to the payment of the Obligation, in lieu of the purposes specified in that paragraph.
(g) Apply for and obtain, without regard to the adequacy of any security for the Obligation or the solvency of the Trustor or any other person or entity, a receiver by any court of competent jurisdiction to take charge of all the Trust Property, to manage, operate and carry on any business then being conducted or that could be conducted on the Premises, to carry on, protect, preserve, replace and repair the Trust Property, and receive and collect all Rents and to apply the same to pay the receiver's expenses for the operation of the Trust Property and then in the manner provided in Paragraph 3.3 herein. Upon appointment of said receiver, Trustor shall immediately deliver possession of all of the Trust Property to such receiver. Neither the appointment of a receiver for the Trust Property by any court at the request of Beneficiary or by agreement with Trustor nor the entering into possession of all or any part of the Trust Property by such receiver shall constitute Beneficiary a "mortgagee in possession" or otherwise make Beneficiary responsible or liable in any manner with respect to the Trust Property or the occupancy, operation or use thereof. Trustor agrees that Beneficiary shall have the absolute and unconditional right to the appointment of a receiver in any independent and/or separate action brought by Beneficiary regardless of whether Beneficiary seeks any relief in such action other than the appointment of a receiver. In that respect, Trustor waives any express or implied requirement under common law or A.R.S. 12- 1241 that a receiver may be appointed only ancillary to other judicial or non-judicial relief.
(h) Without regard to the adequacy of any security for the Obligation or the solvency of Trustor or any other person or entity, enter upon and take possession will thereupon cease of all or any part of the Trust Property, either in person or by agent or employee, or by a receiver appointed by a court of competent jurisdiction; Trustor shall on written demand peaceably surrender possession of the Trust Property to Beneficiary. Beneficiary, in its own name or in the name of Trustor, may operate and terminatemaintain all or any part of the Trust Property to such extent as Beneficiary deems advisable, may rent and lease the same to such persons, for such periods of time, and on such terms and conditions as Beneficiary in its reasonable discretion may determine, and may xxx for or otherwise collect any and all Rents, including those past due and unpaid. In dealing with the Trust Property as a beneficiary in possession, Beneficiary shall not be subject to any liability, charge, or obligation therefor to Trustor, other than for gross negligence and wilful misconduct, and shall be entitled to operate any business then being conducted or which could be conducted thereon or therewith at the expense of and for the account of Trustor (and all net losses, costs and expenses thereby incurred shall be advances governed by Paragraph 6.6 hereof), to the same extent as the owner thereof could do, and to apply the extent permitted by law Landlord will be entitled Rents to pay the possession receiver's expenses, if any, for the operation of the Premises Trust Property and to re-enter then in the same manner provided in Paragraph 3.3 herein.
8.3 Trustor shall pay all reasonable costs and expenses, including without demand limitation costs of Rent or demand of possession title searches and may forthwith proceed to recover possession title policy commitments, Uniform Commercial Code searches, court costs and reasonable attorneys' fees, incurred by Beneficiary in enforcing payment and performance of the Premises Obligation or in exercising the rights and remedies of Beneficiary hereunder. All such costs and expenses shall be secured by process this Deed of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANTTrust and by all other lien and security documents securing the Obligation. In the event of such re-entry by process of law or otherwiseany court proceedings, Tenant nevertheless agrees to remain answerable for any court costs and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees shall be set by the court and court costs; not by jury and shall be included in such case, Landlord reserves full power, which is hereby acceded to any judgment obtained by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. Beneficiary.
8.4 In addition to the foregoing remediesany remedies provided herein for an Event of Default, Landlord will also Beneficiary shall have the following remedies to the extent permitted by law and all other legal or equitable remedies afforded allowed under applicable law (including specifically that of foreclosure of this instrument as though it were a mortgage). No failure on the part of Beneficiary to it at law or in equity, all exercise any of which its rights hereunder arising upon any Event of Default shall be cumulative: construed to terminate this Lease; prejudice its rights upon the occurrence of any other or subsequent Event of Default. No delay on the part of Beneficiary in exercising any such rights shall be construed to declare preclude it from the exercise thereof at any time while that Event of Default is continuing. Beneficiary may enforce any one or more remedies or rights hereunder successively or concurrently. By accepting payment or performance of any of the Obligation after its due and payable all Rent for date, Beneficiary shall not thereby waive the unexpired Term as and agreement contained herein that time is of the essence, nor shall Beneficiary waive either its right to require prompt payment or performance when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for of the remainder of the Term Obligation or its right to consider the failure to so pay or perform an Event of Default. In any action by Beneficiary to recover a deficiency judgment for any balance due under the Note upon the foreclosure of this Deed of Trust or in any action to recover the Obligation or Obligations secured hereby, and declare it all immediately due as a material inducement to making the loan evidenced by the Note, Trustor acknowledges and payable [with agrees that the successful bid amount made at any judicial or non-judicial foreclosure sale, if any, shall be conclusively deemed to constitute the fair market value of the Premises, that such bid amount shall be binding against Trustor in any proceeding seeking to determine or contest the fair market value of the Premises and that such bid amount shall be the preferred alternative means of determining and establishing the fair market value of the Premises. Trustor hereby waives and relinquishes any right to have the fair market value of the Premises determined by a present value discount two (2) whole percentage points below the prime rate published judge or jury in The Wall Street Journal any action seeking a deficiency judgment or any action on the date Landlord elects said remedy]; and to bring an action for specific performanceObligation or Obligations secured hereby, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a defaulthearing to determine fair market value pursuant to A.R.S. 12- 1566, whether 33-814, 33-725 or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlord33-727.
Appears in 1 contract
Samples: Deed of Trust (Nord Resources Corp)
Defaults Remedies. If Tenant Each of the following will constitute a default hereunder: (a) Sublessee fails to pay the Rent, rent or any installment thereofother amount when due under this Sublease or any Sublease Schedule; (b) Sublessee breaches any other term, provision, obligation or covenant of this Sublease which breach, if remediable, is not cured within five (5) 30 days after written notice thereof is given by the same becomes due Sublessor to the Sublessee; and payable(c) a Sublessee Insolvency Event shall occur. Upon the occurrence of any default under this Sublease, Sublessor, at its option, may do any one or if Tenant violates or fails or neglects to keep and perform any more of the covenants, conditions, following: (1) declare this Sublease and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession all of the Premises and Sublease Schedules in default upon notice to re-enter the same without demand of Rent Sublessee; (2) proceed by appropriate court action or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it actions at law or in equityequity or in insolvency or bankruptcy as permitted under Applicable Law, including to enforce performance by Sublessee of the covenants 123 and terms of this Sublease and/or to recover damages for the breach of this Sublease; (3) terminate this Sublease and all of which shall be cumulative: the Sublease Schedules upon notice to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]Sublessee; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees4) incurred by Landlord following a default, whether or not suit is instituted; this Sublease and the same shall be Additional Rent payable Sublease Schedules are terminated, and without notice to Sublessee, repossess the Equipment wherever found, with or without legal process, and for this purpose Sublessor and/or its agents may enter upon demand. In determining any premises of or under the Rent due control or jurisdiction of Sublessee or any agent of Sublessee without liability for the balance of the Termsuit, all Additional Rent shall be determined action or other proceeding by projecting into the future the Additional Rent payable on the date of default increasing Sublessor (any damages occasioned by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement such repossession being herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been expressly waived by Landlord unless such waiver shall be in writing signed Sublessee except for damages occasioned by Landlordthe gross negligence or wilful misconduct of Sublessor or its agents) and remove the Equipment therefrom. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy The remedies provided in this Lease. Landlord shall have a lien for the payment Section 8 in favour of the Rent upon all of the goods, wares, chattels, fixtures, furniture Sublessor are not exclusive but will be cumulative and other personal property of Tenant which may will be in addition to all other remedies in Sublessor's favour existing under Applicable Law, including at law, in equity or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordbankruptcy.
Appears in 1 contract
Defaults Remedies. (a) If Tenant fails to pay there is any NICTD uncured Event of Default (including any default in the Rentobservance of any other covenant, agreement or any installment thereofcondition contained in this Operating Lease), within five (5) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform in any of the covenantssuch events (each, conditionsan "Event of Default"), and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and RDA may forthwith proceed to recover possession of the Premises by process of lawprotect and enforce its rights, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it either at law or in equity, all by suit, action, mandamus or other proceedings, whether for specific performance of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent any covenant or agreement contained herein or for the unexpired Term enforcement of any other appropriate legal or equitable remedy (as contained in the Governance Agreement as may relate to this Operating Lease and when such Event of Default), provided that all such right and remedies taken in respect of this Operating Lease and any such Event of Default shall only be undertaken and pursued by RDA in strict conformity with this Section and the same becomes due requirements and payable or to defer any suit until after limitations set forth in the Term without thereby prejudicing its rights; to accelerate Governance Agreement.
(b) Except for extensions of time resulting from a Force Majeure event that are allowed in the Rent for the remainder Governance Agreement, time is of the Term essence of each term and declare provision of this Operating Lease to be observed by NICTD hereunder.
(c) If RDA shall fail to perform any term, condition, covenant or obligation required to be performed by it all immediately due and payable [with under this Operating Lease, NICTD may pursue a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action claim for specific performance. If RDA shall fail to perform any term, injunctioncondition, covenant or obligation required to be performed by it under this Operating Lease and if NICTD shall, as a consequence thereof, recover a money judgment against RDA and/or IFA, NICTD agrees that (i) it shall look solely to RDA's and IFA's right, title and interest in and to the Lease Premises (which shall not include any right to set-off related to any payment due to RDA or IFA as required by the Governance Agreement, the Development Agreement, this Operating Lease, the Underlying Lease, the Master Leases, the Ground Lease and/or any documents related thereto) for the collection of such judgment, (ii) it shall not look to any other assets of RDA and/or IFA in the levy, execution or other equitable relief to prevent process for the satisfaction of NICTD' judgment, and (iii) it shall not enforce any threatened execution or impending default other process for the satisfaction of NICTD' judgment unless such does not materially reduce the rental value of the Lease Premises or to end any existing default. In addition, Landlord may perform (A) adversely affects the Continuing Rent Obligation and (B) materially and adversely affects any obligation which Tenant has failed that is required to perform after be met by NICTD pursuant to applicable laws (including the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' feesBond Act) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance and requirements of the TermGovernance Agreement, all Additional Rent the Development Agreement, this Operating Lease the Underlying Lease, the Master Leases, the Ground Lease and/or any documents related thereto.
(d) Neither party's failure or delay in exercising any of its rights or remedies or other provisions of this Operating Lease shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by constitute a compounding five percent (5%) per Lease Yearwaiver thereof or affect its right thereafter to exercise or enforce such right or remedy or other provision. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated default shall be deemed to be a waiver of any other default. RDA's receipt of less than the full amount due as herein provided shall not be construed to be other than a payment on account of the earliest stipulated Rentsuch amount then due, nor shall any endorsement or statement on any NICTD's check or any letter accompanying any NICTD's check or payment as Rent be deemed an accord and satisfaction. No act or omission by RDA (or IFA) or their respective employees or agents during the term of this Operating Lease shall be deemed an acceptance of a surrender of the Lease Premises hereunder, and Landlord may no agreement to accept such check a surrender shall be valid unless in writing and signed by RDA and IFA.
(e) If any event or payment without prejudice breach by NICTD of its obligations under this Operating Lease shall occur that with the passage of time or the giving of notice would constitute an Event of Default under this Operating Lease, then NICTD agrees to Landlord's right to recover the balance of such Rent reimburse RDA and IFA for their attorneys' fees, court costs and expenses incurred in connection therewith upon demand by RDA or pursue any other remedy provided in this LeaseIFA, as applicable. Landlord NICTD shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture further indemnify RDA and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving IFA from any and all exemptions allowed RDA and IFA Costs incurred in connection therewith by law; such lien RDA or IFA in connection with any breach by NICTD or ifs obligations under this Operating Lease (including any event or breach by NICTD of its obligations under this Operating Lease that with the passage of time or the giving of a notice would constitute an Event of Default under this Operating Lease.
(f) Notwithstanding anything herein, IFA may be enforced proceed to protect and enforce any rights or interests of RDA or IFA under this Operating Lease in its own name or on the nonpayment behalf of any installment of Rent by the taking and selling of such property RDA in the same manner as name of RDA in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordits place and stead.
Appears in 1 contract
Samples: Operating Lease Agreement
Defaults Remedies. If Tenant fails (A) Lessee shall be deemed to pay be in default hereunder upon the Rentoccurrence of any of the following events (‘Events of Default’):
(1) Lessee shall fail to make any payment due hereunder within ten (10) days after its due date;
(2) Lessee shall fail to perform or observe any other material term, covenant, or condition of this Agreement; (3) Lessee shall have abandoned the Equipment; (4) any representation or warranty of Lessee shall have been untrue in any material respect when made, or any installment thereof, within five information submitted by Lessee to Lessor shall be false or misleading in any material respect; or (5) days after Lessee shall have defaulted under any other agreement with Lessor.
(B) Upon the same becomes occurrence of an Event of Default, with written notice thereof and a reasonable opportunity cure provided to Lessee, Lessor may declare this Agreement to be in Default, and thereafter may exercise any one or more of the following remedies: (1) declare the rent for the Term and all other unpaid rent, fees, taxes and charges under this Agreement immediately due and payable; (2) repossess, retake and/or retain any or if Tenant violates or fails or neglects to keep and perform any all of the covenants, conditionsEquipment free of all rights and claims of Lessee without breach of the peace nor judicial intervention, and agreements herein contained on without releasing Lessee of any term, covenant or condition provided herein; (3) sell or otherwise dispose of any or all of the part of Tenant to be kept Equipment, whether or not in Lessor’s possession, in a commercially reasonable manner and performed within thirty (30) days after receipt of written notice apply the net proceeds of such failure or neglectdisposition, or if the Premises becomes vacant or desertedafter deducting all costs, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession obligations of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of lawLessee, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable with Lessee remaining liable for any and all damage, deficiency deficiency; (4) terminate this Agreement; and/or (5) exercise any other right or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded remedy available to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it Lessor at law or in equity, all of which . Lessor’s failure to exercise any remedy listed herein shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No constitute waiver of any breach Event of any covenant, condition, or agreement herein contained Default and shall operate as not constitute a waiver of the covenant, any other term or condition or agreement itself, or of this Agreement. Lessee shall pay Lessor’s reasonable legal fees and other costs and expenses reasonably incurred by reason of any subsequent breach thereofEvent of Default or enforcement of this Agreement. No provision of this Lease right or remedy referred to herein is intended to be exclusive, and each may be exercised concurrently or separately and from time to time. In the event Lessor shall be deemed to have been waived by Landlord unless such waiver repossess or retake the Equipment, and there shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord attached to such Equipment any property owned by, or in the custody or control of a lesser amount than the Rent herein stipulated shall be deemed Lessee, then Lessor is hereby authorized to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling take possession of such property in the same manner as in the case for a period of chattel mortgages on default thereunder; said sale ten (10) days. Thereafter, if any such property is to made upon not claimed and taken by Lessee within ten (10) days notice served upon Tenant after Lessor repossesses or retakes the Equipment, such property shall be deemed abandoned by posting upon Lessee, and Lessor shall have the Premises right to dispose of it.
(C) Xxxxxx and Lessor waive all right to trial by jury of all claims, defenses, counterclaims and suits of any kind arising from or such lien may be enforced in any other lawful manner at the option of Landlordrelating to this Agreement.
Appears in 1 contract
Samples: Lease Agreement
Defaults Remedies. If Tenant fails to pay the Rent, The following shall be an Event of Default by Subtenant:
(a) The Subtenant shall default in making any payment of Fixed Rent or any installment thereof, within five (5) days after Additional Charge as and when the same becomes shall become due and payable, and such default shall continue for a period of ten (10) days after notice from the Sublandlord that such payment is due and unpaid; or
(b) The Subtenant shall default in the performance of or if Tenant violates or fails or neglects to keep and perform compliance with any of the other covenants, conditionsagreements, terms or conditions of this sublease to be performed by the Subtenant (other than any default curable by payment of money), and agreements herein contained on the part such default shall continue for a period of Tenant to be kept and performed within thirty (30) days after receipt of written notice thereof from the Sublandlord to the Subtenant, or, in the case of a default which cannot with due diligence be cured within thirty (30) days, the Subtenant shall fail to proceed promptly (except for unavoidable delays) after the giving of such failure or neglectnotice and with all due diligence to cure such default and thereafter to prosecute the curing thereof with all due diligence (it being intended that as to a default not susceptible of being cured with due diligence within thirty (30) days, or if the Premises becomes vacant or deserted, thentime which such default may be cured shall be extended for such period as may be reasonably necessary to permit the same to be cured with all due diligence). In any such event of default, and in each and every such eventduring the continuance thereof, the Sublandlord may, at its option, then or thereafter while any such Event of Default shall continue and notwithstanding the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to fact that the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent Sublandlord may have any other remedy hereunder or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all upon notice to the Subtenant, designate a date, not less than thirty (30) days after the giving of such notice, on which this sublease shall be cumulative: to terminate. On such date the Term of this sublease and the estate hereby granted shall expire and terminate this Lease; to declare due upon the date specified in such notice with the same force and payable all Rent effect as if the date specified in such notice was the date hereinbefore fixed for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder expiration of the Term of this sublease, and declare it except as set forth herein ail rights of the Subtenant and Sublandlord hereunder shall expire and terminate. Additionally, Subtenant agrees to pay, as an Additional Charge, all immediately due reasonable attorney's fees and payable [with a present value discount two other expenses incurred by the Sublandlord in enforcing any of the obligations under this sublease, this covenant to survive the expiration or sooner termination of this sublease. If this sublease is terminated as provided above, or as permitted by law, the Subtenant shall peaceably quit and surrender the Subleased Premises to the Sublandlord and the Sublandlord may, without further, notice, enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceedings, and again have, repossess and enjoy the same as if this sublease had not been made, and in any such event neither the Subtenant nor any person claiming through or under the Subtenant by virtue of any law or an order of any court shall be entitled to possession or to remain in possession of the Subleased Premises. In such event, the Sublandlord shall have the right to collect from the Subtenant.
(1) any unpaid fixed rent; rentals
(2) whole percentage points below any unpaid additional charges; additional
(3) The reasonable costs of repairing the prime rate published premises so that they are in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform condition required under Section 6 hereof and/or performing any obligation which Tenant has failed to perform after of Subtenant under the expiration Sublease; (4) reasonable attorneys fees and costs incurred in evicting the Subtenant and for enforcing the Sublandlord's rights under the lease including the collection of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is institutedrents and other damages; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate other damages as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlord.
Appears in 1 contract
Samples: Sublease (Parlux Fragrances Inc)
Defaults Remedies. If Tenant breaches or defaults under this LOI or the Lease, or fails to pay the Rent, or any installment thereof, within five (5) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure Tenant’s duties or neglectobligations thereunder, or if the Premises becomes vacant files for bankruptcy protection or desertedis adjudged bankrupt, thenor seeks protection from creditors, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entryexercise any right and enforce any remedy available to Landlord in contract, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, the right to terminate this LOI and the Lease, the right to terminate Tenant’s right of possession of the Premises without terminating the Lease, the right to lock Tenant out of the Premises in accordance with applicable laws, the right to xxx Tenant and Guarantors for losses and damages (including reimbursement of all costs, expenses, fees and charges incurred or paid by Landlord in connection with this LOI, the Lease, the development of the Premises, the construction of the tenant improvements, any financing pursued or secured by Landlord in connection therewith, and all other costs and expenses relating thereto, together with interest thereon at the rate of 10% per annum from the date of demand for payment from Landlord until paid in full, including reasonable attorneys' ’ fees), the right to xxx for specific performance, the right to an injunction, the right to apply any deposit held by Landlord, the right to perform (or attempt to perform) Tenant’s unperformed obligations, in which event Tenant shall immediately, upon receipt of Landlord’s request for payment, reimburse Landlord for all costs and expenses incurred by Landlord following in performing or attempting to perform Tenant’s unperformed obligations, and Tenant shall also pay to Landlord an amount equal to all damages and losses incurred or suffered by Landlord as a result of Tenant’s breach or default, whether including reasonable attorneys’ fees, all without limiting or not suit is instituted; the same impairing or waiving any of Landlord’s other rights and remedies. All of Landlord’s rights and remedies shall be Additional Rent payable upon demandcumulative. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this The Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by contain additional provisions regarding Tenant’s breaches and defaults and Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord ’s additional rights and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordremedies.
Appears in 1 contract
Defaults Remedies. If Tenant Each of the following will constitute a default hereunder: (a) Sublessee fails to pay the Rent, rent or any installment thereofother amount when due under this Sublease or any Sublease Schedule; (b) Sublessee breaches any other term, provision, obligation or covenant of this Sublease which breach, if remediable, is not cured within five (5) 30 days after written notice thereof is given by the same becomes due Sublessor to the Sublessee; and payable(c) a Sublessee Insolvency Event shall occur. Upon the occurrence of any default under this Sublease, Sublessor, at its option, may do any one or if Tenant violates or fails or neglects to keep and perform any more of the covenants, conditions, following: (1) declare this Sublease and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession all of the Premises and Sublease Schedules in default upon notice to re-enter the same without demand of Rent Sublessee; (2) proceed by appropriate court action or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it actions at law or in equityequity or in insolvency or bankruptcy as permitted under Applicable Law, including to enforce performance by Sublessee of the covenants and terms of this Sublease and/or to recover damages for the breach of this Sublease; (3) terminate this Sublease and all of which shall be cumulative: the Sublease Schedules upon notice to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]Sublessee; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees4) incurred by Landlord following a default, whether or not suit is instituted; this Sublease and the same shall be Additional Rent payable Sublease Schedules are terminated, and without notice to Sublessee, repossess the Equipment wherever found, with or without legal process, and for this purpose Sublessor and/or its agents may enter upon demand. In determining any premises of or under the Rent due control or jurisdiction of Sublessee or any agent of Sublessee without liability for the balance of the Termsuit, all Additional Rent shall be determined action or other proceeding by projecting into the future the Additional Rent payable on the date of default increasing Sublessor (any damages occasioned by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement such repossession being herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been expressly waived by Landlord unless such waiver shall be in writing signed Sublessee except for damages occasioned by Landlordthe gross negligence or wilful misconduct of Sublessor or its agents) and remove the Equipment therefrom. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy The remedies provided in this Lease. Landlord shall have a lien for the payment Section 8 in favour of the Rent upon all of the goods, wares, chattels, fixtures, furniture Sublessor are not exclusive but will be cumulative and other personal property of Tenant which may will be in addition to all other remedies in Sublessor's favour existing under Applicable Law, including at law, in equity or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordbankruptcy.
Appears in 1 contract
Defaults Remedies. If Section 15.01. If, during the Term any one or more of the following acts or occurrences (any one of such occurrences or acts being hereinafter called an Event of Default) shall happen:
(A) The Tenant fails to pay the Rent, shall default in making any payment of Basic Rent or any installment thereof, within five (5) days after Additional Rent as and when the same becomes shall become due and payable, and such default shall continue for a period of ten (10) days after notice from the Landlord that such payment is due and unpaid; or
(B) The Tenant shall default in the performance of or if Tenant violates or fails or neglects to keep and perform compliance with any of the other covenants, conditionsagreements, terms or conditions of this Lease to be performed by the Tenant (other than any default curable by payment of money), and agreements herein contained on the part such default shall continue for a period of Tenant to be kept and performed within thirty (30) days after receipt of written notice thereof from the Landlord to the Tenant, or, in the case of a default which cannot with due diligence be cured within thirty (30) days, the Tenant shall fail to proceed promptly (except for unavoidable delays) after the giving of such failure notice and with all due diligence to cure such default and thereafter to prosecute the curing hereof with all due diligence (it being intended that as to a default not susceptible of being cured with due diligence within thirty (30) days, the time within which such default may be cured shall be extended for such period as may be reasonably necessary to permit the same to be cured with all due diligence); or
(C) The Tenant or neglectany guarantor of this Lease shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or if shall file any petition or answer seeking any reorganization, composition, readjustment or similar relief under any present or future bankruptcy or other applicable law, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver, or liquidator of the Tenant or any guarantor of this Lease or of all or any substantial part of its properties or of all or any part of the Demised Premises; or
(D) If, within sixty (60) days after the filing of an involuntary petition in bankruptcy against the Tenant or any guarantor of this Lease, or the commencement of any proceeding against the Tenant or such guarantor seeking any reorganization, composition, readjustment or similar relief under any law, such proceeding shall not have been dismissed, or if, within sixty (60) days after the appointment, without the consent or acquiescence of the Tenant or such guarantor, of any trustee, receiver or liquidator of the Tenant or such guarantor, or of all or any part of the Demised Premises, such appointment shall not have been vacated or stayed on appeal or otherwise, or if, within sixty (60) days after the expiration of any such stay, such appointment shall have been vacated, or if, within sixty (60) days after the taking possession, without the consent or acquiescence of the Tenant or such guarantor, of the property of the Tenant, or of such guarantor by any governmental office or agency pursuant to statutory authority for the dissolution or liquidation of the Tenant or such guarantor, such taking shall not have been vacated or stayed on appeal or otherwise; or
(E) If the Demised Premises becomes vacant or deserted, shall be abandoned by the Tenant for a period of thirty (30) consecutive days. then, and in each and every any such event, and during the continuance thereof, the Landlord may, at its option, then or thereafter while any such Event of Default shall continue and notwithstanding the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to fact that the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole have any other remedy hereunder or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, by notice to the Tenant, designate a date, not less than ten (10) days after the giving of such notice, on which this Lease shall terminate; and thereupon, on such date the Term of this Lease and the estate hereby granted shall expire and terminate upon the date specified in such notice with the same force and effect as if the date specified in such notice was the date hereinbefore fixed for the expiration of the Term of this Lease, and all rights of which the Tenant hereunder shall expire and terminate, but the Tenant shall remain liable as hereinafter provided. The parties agree that either party who brings an action to enforce any obligation of the other party under this Lease shall, if successful, be entitled to recover from said unsuccessful party all reasonable attorneys' fees and other reasonable expenses incurred in enforcing said obligation against the unsuccessful party, this to survive the expiration or sooner termination of this Lease.
Section 15.02. If this Lease is terminated as provided in Section 15.01, or as permitted by law, the Tenant shall peaceably quit and surrender the Demised Premises to the Landlord, and the Landlord may, without further notice, enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceedings, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither the Tenant nor any person claiming through or under the Tenant by virtue of any law or an order of any court shall be cumulative: entitled to terminate possession or to remain in possession of the Demised Premises, and the Landlord, at its option, shall forthwith, notwithstanding any other provision of this Lease; , be entitled to declare due recover from the Tenant in lieu of all other claims for damages on account of such termination as and payable for liquidated damages an amount equal to the excess of all Term Basic Rent and Additional Rent reserved hereunder for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder portion of the Term of this Lease discounted at the rate of six (6%) percent per annum to the then present worth, over the fair rental value of the Demised Premises at the time of termination for such unexpired portion of the Term (the rent received on a reletting shall be conclusively accepted as the fair rental value). Nothing herein contained shall limit or prejudice the right of the Landlord, in any bankruptcy or reorganization or insolvency proceeding, to prove for and declare it obtain as liquidated damages by reason of such termination an amount equal to the maximum allowed by any bankruptcy or reorganization or insolvency proceedings, or to prove for and obtain as liquidated damages by reason of such termination, an amount equal to the maximum allowed by any statute or rule of law whether such amount shall be greater or less than the excess referred to above.
Section 15.03. If the Landlord re-enters and obtains possession of the Demised Premises, as provided in Section 15.02 of this Lease, following an Event of Default, the Landlord shall have the right, without notice, to repair or alter the Demised Premises in such a manner as the Landlord may deem necessary or advisable so as to put the Demised Premises in good order and to make the same rentable, and shall have the right, at the Landlord's option, to relet the Demised Premises or a part thereof, and the Tenant shall pay to the Landlord on demand all immediately due reasonable expenses incurred by the Landlord in obtaining possession, and payable [with a present value discount two (2) whole percentage points below in altering, repairing and putting the prime rate published Demised Premises in The Wall Street Journal on good order and condition and in reletting the same, including reasonable fees of attorneys and architects, and all other reasonable expenses or commissions, and the Tenant shall pay to the Landlord upon the rent payment dates following the date Landlord elects said remedy]; of such re-entry and to bring an action including the date for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period the Term of this Lease in effect immediately prior to such re-entry, the sums of money which would have been payable by the Tenant as Monthly Basic Rent and Additional Rent hereunder on such rent payment dates if the Landlord had not re-entered and resumed possession of the Demised Premises, deducting only the net amount of rent (except in an emergency, when no notice or cure period will be necessary or affordedbasic and additional), all at if any, which the cost Landlord shall actually receive (after deducting from the gross receipts the expenses, costs and payments of Tenant as Additional Rent payable upon demand. the Landlord which in accordance with the terms of this Lease would have been borne by the Tenant) in the meantime from and by any reletting of the Demised Premises, and the Tenant shall also pay remain liable for all sums otherwise payable by the Tenant under this Lease, including but not limited to the expense of the Landlord aforesaid, as well as for any deficiency aforesaid, and the Landlord shall have the right from time to time to begin and maintain successive actions or other legal proceedings against the Tenant for the recovery of such deficiency, expenses or damages or for a sum equal to any Monthly Basic Rent payment and Additional Rent. As an alternative remedy, the Landlord shall be entitled to damages against the Tenant for breach of this Lease, at any time (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same Landlord shall be have become entitled to or shall have received any damages as hereinabove provided) in an amount equal to the excess, if any, of the Term Basic Rent and Additional Rent which would be payable upon demand. In determining under this Lease at the Rent due for date of the balance expiration of the Term, all less the amount of Term Basic Rent and Additional Rent received by the Landlord upon any reletting, both discounted to present worth at the rate of six (6%) percent per annum, semi-annually. The obligation and liability of the Tenant to pay the Term Basic Rent and the Additional Rent shall be determined by projecting into survive the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver commencement, prosecution and termination of any breach action to secure possession of any covenant, condition, or agreement the Demised Premises. Nothing herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to require the Landlord to wait to begin such action or other legal proceedings until the date when this Lease would have expired had there not been waived an Event of Default.
Section 15.04. The Tenant hereby waives all right of redemption to which the Tenant or any person under it may be entitled by any law nor or hereafter in force. Notwithstanding anything herein contained, Landlord agrees to use reasonable efforts to relet the Demised Premises in order to mitigate its damages, but nothing herein shall limit the Landlord's right, in its sole discretion, to approve any tenant and to determine the terms and conditions of any lease, including but not limited to rent and length of term. The Landlord's remedies hereunder are in addition to any remedy allowed by law.
Section 15.05. In the event of any breach or threatened breach by Tenant of any of the agreements, terms, covenants or conditions contained in this Lease, Landlord shall be entitled to enjoin such breach or threatened breach and shall have the right to invoke any right or remedy allowed at law or in equity or by statute or otherwise as though re-entry, summary dispossess proceedings, and other remedies were not provided for in this Lease. During the pendency of any proceedings brought by Landlord unless such waiver to recover possession by reason of default, Tenant shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed continue all money payments required to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfactionmade to Landlord, and Landlord may accept such check or payment without prejudice payments for use and occupancy of the Demised Premises. In such event, Tenant waives its right in such proceedings to Landlord's right to recover claim as a defense that the balance receipt of such Rent or pursue any other remedy provided in this Lease. money payments by Landlord shall have constitutes a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed waiver by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling landlord of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlorddefault.
Appears in 1 contract
Samples: Lease Agreement (Evivrus, Inc.)
Defaults Remedies. If Tenant fails 13.1 The occurrance of any one or more of the following events shall constitute a material default and breach of the Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to pay the Rent, make any payment of rent or any installment thereofother payment required to be made by Lessee hereunder, within five (5) as and when due where such failure shall continue for a period of three days after written notice thereof from Lessor to Lessee. In the same becomes due and payable, event that Lessor serves Lessee with a Notice to Pay Rent or if Tenant violates Quit pursuant to applicable Unlawful Detainer statutes such Notice to Pay Rent or fails Quit shall also constitute the notice required by this subparagraph.
(c) The failure by Lessee to observe or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part conditions or provisions of Tenant this Lease to be kept and observed or performed within thirty by Lessee, other than described in paragraph (30b) above, where such failure shall continue for a period of 30 days after receipt of written notice of such failure or neglectthereof from Lessor to Lessee; provided, or however, that if the Premises becomes vacant nature of Lessee's default is such that more than 30 days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commenced such cure within said 30-day period and thereafter diligently prosecutes such cure to completion.
(i) The making by Lessee of any general arrangement or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises assignment for the benefit of Tenant, creditors (ii) Lessee becomes a "debtor" as defined in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check 11 U.S.C. ss.101 or any letter accompanying any check or payment as Rent be deemed an accord and satisfactionsuccessor statute thereto (unless, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereundera petition filed against Lessee, the same is dismissed within 60 days); said sale is (iii) the appointment of a trustee or receiver to made upon ten (10) days notice served upon Tenant by posting upon take possession of substantially all of Lessee's assets located at the Premises or such lien may be enforced of Leassee's interest in any this Lease, where possession is not restored to Lessee within 30 days; or (iv) the attachment, execution or other lawful manner judicial seizure of substantially all of Lessee's assets located at the option Premises or of LandlordLessee's interest in the Lease, where such seizure is not discharged within 30 days. Provided, however, in the event that any provision of this paragraph 13.1(d) is contrary to any applicable law, such provision shall be of no force or effect.
(e) The discovery by Lessor that any financial statement given to Lessor by Lessee, any assignee of Lessee, any subtenant of Lessee, any successor in interest of Lessee or any guarantor of Lessee's obligation hereunder, and any of them, was materially false.
Appears in 1 contract
Defaults Remedies. If The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Tenant:
(a) The failure by Tenant fails to pay the Rent, or make any installment thereof, payment of Rent within five ten (510) days after the same becomes due and payable, receipt of written notice from Landlord;
(b) The failure by Tenant to observe or if Tenant violates or fails or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part conditions or provisions of Tenant this Lease to be kept and observed or performed within by Tenant other than described in Section (b) hereinabove, where such failure shall continue for a period of thirty (30) days after receipt of written notice thereof from Landlord to Tenant; provided, however, that if the nature of Tenant’s default is such failure that more than thirty (30) days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within said five-day period and thereafter, diligently and continuously prosecutes such cure to completion; or
(c) The making by Tenant of any general assignment or neglectgeneral arrangement for the benefit of creditors, filing by or against Tenant under any law relating to bankruptcy (unless in the case of a petition filed against Tenant, the same is dismissed within sixty (60) days) the appointment of a trustee or receiver to take possession of substantially all of Tenant’s assets located in the Premises or Tenant’s interest in this Lease where possession is not restored to Tenant within thirty (30) days, or if the attachment, execution of other judicial seizure of substantially all of Tenant’s assets located at the Premises becomes vacant or desertedTenant’s interest in this Lease, then, and in each and every where such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANTseizure is not discharged within thirty (30) days. In the event of such material default or breach by Tenant, Landlord may, at any time thereafter, with or without notice or demand, without limiting Landlord in the exercise of any other right or remedy which Landlord may have hereunder or pursuant to applicable law by reason of such default or breach, proceed in the following manner: Notwithstanding that Landlord prior to such breach or default shall have received rent or any payment, however designated, for the use of the Premises from or on behalf of Tenant or from any other person and regardless of and notwithstanding the fact that Landlord has or may have some other remedy under this Lease or by virtue hereof, or by law or in equity, Landlord may, immediately or at any time after any of such breach or default give Tenant a notice of termination of this Lease, and, upon the giving of such notice, this Lease and the Term and estate hereby granted shall expire and terminate upon the day so specified in such notice as fully and completely and with the same force and effect as if the day so specified were the date hereinbefore fixed for the normal expiration of the Term and all rights of Tenant under this Lease shall expire and terminate, but Tenant shall remain liable for damages as hereinafter provided. Upon any such termination of this Lease, Tenant shall peaceably quit and surrender the Premises to Landlord, and Landlord may, without further notice, enter upon, re-enter, possess and repossess itself thereof, by summary proceeding, ejectment, unlawful detainer or otherwise, and may dispossess and remove Tenant and all other persons and property from the Premises, and may have, hold and enjoy the Premises and the right to receive all rental and other income of and from the same. No re-entry by process Landlord shall be deemed an acceptance of a surrender of this Lease. It is covenanted and agreed by Tenant that in the event of the termination of this Lease or of re-entry by Landlord, under any of the provisions of this Section 25 or pursuant to law or otherwiseby reason of default hereunder on the part of Tenant. Tenant will pay to Landlord, Tenant nevertheless agrees as damages, sums equal to remain answerable for any and all damage, deficiency or loss of the Rent which Landlord may sustain would have been payable by Tenant had this Lease not so terminated, payable upon the days specified herein following such termination or such re-entryentry and until the date hereinabove set for the normal expiration of the Term, provided, however, that if Landlord shall re-let the Premises during said period (it being understood that Landlord has no obligation to do so), Landlord shall credit Tenant with the net rents, if any, received by Landlord from such re-letting, such rents to be determined by first deducting from the gross rents as and when received by Landlord from such re-letting, the expenses incurred or paid by Landlord in terminating this Lease or of re-entering the Premises and of securing possession thereof, as well as the expenses of re-letting, including reasonable attorneys' fees altering and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet preparing the Premises for new tenants, brokers’ commissions and all other expenses chargeable against the benefit Premises and the rental therefrom; but in no event shall Tenant be entitled to receive any excess of such net rents over the sums otherwise payable by Tenant to Landlord hereunder. Suit or suits for the recovery of such damages, or any installments thereof, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the Term would have expired if it had not been terminated under the provisions of this paragraph, or under any provisions of law, or had Landlord not re-entered the Premises. Landlord shall also be entitled to collect from Tenant any attorneys’ fees arising out of Tenant, in liquidation and discharge, in whole ’s default hereunder. Landlord shall also be entitled to such other remedies as may be available at law or in partequity in the event of default by Tenant hereunder. Landlord shall have all rights and remedies now or hereafter existing at law or in equity with respect to the enforcement of Tenant’s obligations hereunder and the recovery of the Premises. No right or remedy herein conferred upon or reserved to Landlord shall be exclusive of any other right or remedy, as but shall be cumulative and in addition to all other rights and remedies given hereunder or now or hereafter existing at law. Landlord shall be entitled to injunctive relief in case of the case may beviolation, or attempted or threatened violation, of the liability any covenant, agreement, condition or provision of Tenant under the terms and this Lease, or to a decree compelling performance of any covenant, agreement, condition or provision of this Lease. In addition Nothing herein contained shall limit or prejudice the right of Landlord to the foregoing remedies, exercise any or all rights and remedies available to Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all reason of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end prove for and obtain in proceedings under any existing default. In additionbankruptcy or insolvency laws, Landlord may perform an amount equal to the maximum allowed by any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except law in an emergency, when no notice or cure period will be necessary or afforded), all effect at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (includingtime when, without limitationand governing the proceedings in which, reasonable attorneys' fees) incurred by Landlord following a defaultthe damages are to be proved, whether or not suit is instituted; the same shall amount be Additional Rent payable upon demand. In determining greater, equal to, or less than the Rent due for the balance amount of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, loss or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed damage referred to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordabove.
Appears in 1 contract
Defaults Remedies. If Tenant 8.1 The following shall constitute events of default ("Events of Default") hereunder:
(a) Lessee fails to pay the Rentmake any payments to Lessor when due hereunder;
(b) any representation or warranty of Lessee contained herein or in any document furnished to Lessor in connection herewith is incorrect or misleading in any material respect when made;
(c) Lessee fails to observe or perform any other covenant, agreement or warranty made by Lessee hereunder or under any document delivered pursuant hereto and such failure continues for 10 days after written notice thereof to Lessee;
(d) any default occurs under any other agreement for borrowing money or receiving credit under which Lessee or any installment thereofguarantor or general partner of Lessee may be obligated as borrower, within five lessee or guarantor, if such default (5i) days after consists of the same becomes failure to pay any indebtedness when due and payable, or if Tenant violates or fails or neglects to keep and perform any other obligation thereunder and (ii) gives the holder of the covenantsindebtedness the right to accelerate the indebtedness;
(e) Lessee, conditions, and agreements herein contained on the part any guarantor of Tenant to be kept and performed within thirty (30) days after receipt this Lease or any general partner of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises Lessee makes an assignment for the benefit of Tenantcreditors or files any petition or action under any bankruptcy, reorganization, insolvency or moratorium law, or any other law or laws for the relief of, or relating to, debtors;
(f) any guarantor of this Lease breaches or fails to perform any covenant in liquidation and dischargeits guaranty, in whole required by this Lease expires or in partterminates without Lessor's consent;
(g) an involuntary petition is filed under any bankruptcy statute against Lessee, as the case may beany guarantor of this Lease or any general partner of Lessee, or any receiver, trustee, custodian or similar official is appointed to take possession of the liability properties of Tenant under the terms and provision Lessee, any guarantor of this Lease. In addition Lease or any general partner of Lessee, unless such petition or appointment is set aside or withdrawn or ceases to be in effect within 60 days from the foregoing remediesdate of the filing or appointment; or
(h) Lessee, Landlord will also have the following remedies to the extent permitted any guarantor of this Lease liquidates, dissolves, or sells, leases or disposes of a substantial portion of its business or assets.
8.2 If any Event of Default occurs, Lessor, at its option, may:
(a) proceed by law and all other remedies afforded to it appropriate court action or actions either at law or in equity, all to enforce performance by Lessee of which shall be cumulative: the applicable covenants of this Lease or to recover damages for the breach thereof; or
(b) by notice in writing to Lessee terminate this Lease; , whereupon all rights of Lessee to declare due retain possession of and payable all Rent for use the unexpired Term Units shall terminate, but Lessee shall remain liable as hereinafter provided, and when the same becomes due and payable Lessor may, at its option, do any one or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder more of the Term following: (i) declare the aggregate Balance Due with respect to the Units and declare it all Other Charges immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published and recover any damages and expenses in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred addition thereto Lessor sustains by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance reason of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, representation or agreement herein warranty contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of in this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of rent; (ii) enforce the Rent security interest given hereunder pursuant to the Uniform Commercial Code or any other law; (iii) enter upon all the premises where any of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which Units may be and take possession of all or any of such Units; and (iv) require Lessee to return the Units as provided in or upon the Premises, Tenant hereby specifically waiving Section 9.
8.3 Lessor shall have any and all exemptions allowed rights given to a secured party by law; , and may, but is not required to, sell the Units in one or more sales. Lessor may purchase the Units at such lien may be enforced sale. Lessee acknowledges that sales for cash or on credit to a wholesaler, retailer or user of the nonpayment of any installment of Rent by the taking and selling Units, or at public or private auction, are all commercially reasonable. The proceeds of such property sale shall be applied in the same manner as in following order. First, to the case reasonable expenses of chattel mortgages on default thereunder; said retaking, ----- holding, preparing for sale is to made upon ten (10) days notice served upon Tenant by posting upon and selling, including the Premises or such lien may be enforced in allocated time charges, costs and expenses of internal counsel for Lessor and any other lawful manner attorneys' fees and expenses incurred by Lessor; Second, to the amounts, except those specified ------ below, which under the terms of this Lease are due or have accrued; Third, to ----- late charges; and Fourth, to the aggregate Balance Due. Any surplus shall be ------ paid to the person or persons entitled thereto. If there is a deficiency, Lessee will promptly pay the same to Lessor.
8.4 Lessee agrees to pay all reasonable allocated time charges, costs and expenses of internal counsel for Lessor and any other attorneys' fees, expenses or out-of-pocket costs incurred by Lessor in enforcing this Lease.
8.5 The remedies herein provided in favor of Lessor shall not be deemed exclusive, but shall be cumulative, and shall be in addition to all other remedies in its favor existing at law or in equity.
8.6 If Lessee fails to perform any of its agreements contained herein, Lessor may perform such agreement, and Lessee shall pay the option of Landlordexpenses incurred by Lessor in connection with such performance upon demand.
Appears in 1 contract
Samples: Machinery and Equipment Pledge Agreement (Tarrant Apparel Group)
Defaults Remedies. If Tenant fails (A) Lessee shall be deemed to pay be in default hereunder upon the Rentoccurrence of any of the following events (“Events of Default”):
(1) Lessee shall fail to make any payment due hereunder within ten (10) days after its due date; (2) Lessee shall fail to perform or observe any other term, covenant, or condition of this Agreement; (3) Lessee shall have abandoned the Equipment; (4) any representation or warranty of Lessee shall have been untrue in any material respect when made, or any installment thereof, within five information submitted by Lessee to Lessor shall be false or misleading in any material respect; or (5) days after Lessee shall have defaulted under any other agreement with Lessor.
(B) Upon the same becomes occurrence of an Event of Default, Lessor may declare this Agreement to be in Default, and thereafter may exercise any one or more of the following remedies:
(1) Declare the rent for the Term and all other unpaid rent, fees, taxes and charges under this Agreement immediately due and payable; (2) Repossess, retake and/or retain any or all of the Equipment free of all rights and claims of Lessee without notice, without legal process, or if Tenant violates judicial intervention, and without releasing Lessee of any term, covenant or fails condition provided herein; (3) Sell or neglects to keep and perform otherwise dispose of any or all of the covenantsEquipment, conditionswhether or not in Lessor’s possession, in a commercially reasonable manner and agreements herein contained on apply the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice net proceeds of such failure or neglectdisposition, or if the Premises becomes vacant or desertedafter deducting all costs, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession obligations of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of lawLessee, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable with Lessee remaining liable for any and all damage, deficiency deficiency; (4) Terminate this Agreement; and/or (5) Exercise any other right or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded remedy available to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it Lessor at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No Lessor’s waiver of any breach Event of any covenant, condition, or agreement herein contained Default shall operate as not constitute a waiver of the covenant, condition any other Event of Default or agreement itself, or a waiver of any subsequent breach thereofterm or condition of this Agreement. Lessee shall pay all Lessor’s legal fees and all other costs and expenses incurred by reason of any Event of Default. No provision of this Lease right or remedy referred to herein is intended to be exclusive, and each may be exercised concurrently or separately and from time to time. In the event Lessor shall be deemed to have been waived by Landlord unless such waiver repossess or retake the Equipment, and there shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord attached to such Equipment any property owned by, or in the custody or control of a lesser amount than the Rent herein stipulated shall be deemed Lessee, then Lessor is hereby authorized to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling take possession of such property in the same manner as in the case for a period of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant days. Thereafter, if any such property is not claimed and taken by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of LandlordLessee within ten (10)
(C) XXXXXX AND XXXXXX WAIVE ALL RIGHT TO TRIAL BY JURY OF ALL CLAIMS, DEFENSES, COUNTERCLAIMS AND SUITS OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
Appears in 1 contract
Samples: General Terms & Conditions
Defaults Remedies. If The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Tenant fails (“Event of Default”):
(a) The failure by Tenant to pay the Rent, make any payment of Rent or any installment thereof, other payment required to be made by Tenant hereunder within five (5) business days after the same becomes of when due and payable, following ten (10) days written notice from Landlord;
(b) The failure by Tenant to observe or if Tenant violates or fails or neglects to keep and perform any of the non-monetary covenants, conditions, and agreements herein contained on the part conditions or provisions of Tenant this Lease to be kept and observed or performed within by Tenant, where such failure shall continue for a period of thirty (30) days after receipt of written notice thereof from Landlord to Tenant specifying the nature of the failure; provided, however, that if the nature of Tenant’s default is such failure that more than thirty (30) days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within said thirty-day period and thereafter, diligently prosecutes such cure to completion; or
(c) The making by Tenant of any general assignment or neglectgeneral arrangement for the benefit of creditors, filing by or against Tenant under any law relating to bankruptcy (unless in the case of a petition filed against Tenant, the same is dismissed within ninety (90) days) the appointment of a trustee or receiver to take possession of substantially all of Tenant’s assets located in the Leased Premises or Tenant’s interest in this Lease where possession is not restored to Tenant within ninety (90) days, or if the Premises becomes vacant or desertedattachment, then, and in each and every such event, execution of other judicial seizure of substantially all of Tenant’s assets located at the option of LandlordLeased Premises or Tenant’s interest in this Lease, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANTwhere such seizure is not discharged within ninety (90) days. In the event of such re-entry Event of Default by process Tenant, Landlord may, at any time hereunder, with or without notice or demand, without limiting Landlord in the exercise of law any other right or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent remedy which Landlord may sustain have hereunder or pursuant to applicable law by reason of such re-entrydefault or breach, including reasonable attorneys' fees and court costs; and proceed in the following manner: Notwithstanding that Landlord prior to such casebreach or default shall have received Rent or any payment, Landlord reserves full powerhowever designated, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, use of the liability Leased Premises from or on behalf of Tenant or from any other person and regardless of and notwithstanding the fact that Landlord has or may have some other remedy under the terms and provision of this Lease. In addition to the foregoing remediesLease or by virtue hereof, Landlord will also have the following remedies to the extent permitted or by law and all other remedies afforded to it at law or in equity, all Landlord may, immediately or at any time after any of such breach or default give Tenant a notice of termination of this Lease, and, upon the giving of such notice, this Lease and the term and estate hereby granted shall expire and terminate upon the day so specified in such notice (which date shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two no less than ten (210) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on business days from the date of default increasing by a compounding five percent (5%notice) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver fully and completely and with the same force and effect as if the day so specified were the date hereinbefore fixed for the normal expiration of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision term of this Lease and all rights of Tenant under this Lease shall expire and terminate, but Tenant shall remain liable for damages as hereinafter provided. Upon any such termination of this Lease, Tenant shall peaceably quit and surrender the Leased Premises to Landlord, and Landlord may, by summary proceeding, ejectment, unlawful detainer or other judicial procedure, dispossess and remove Tenant and all other persons and property from the Leased Premises, and may have, hold and enjoy the Leased Premises and the right to receive all rental and other income of and from the same. No re-entry by Landlord shall be deemed an acceptance of a surrender of this Lease. Suit or suits for the recovery of such damages, or any installments thereof, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been waived by terminated under the provisions of this paragraph, or under any provisions of law, or had Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than not re-entered the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this LeaseLeased Premises. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and also be entitled to such other personal property of Tenant which remedies as may be available at law or in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property equity in the same manner as event of default by Tenant hereunder. In the event of a dispute between the parties hereto with respect to the enforcement of either party’s obligations contained herein, the prevailing party shall be entitled to reimbursement of reasonable attorney’s fees, costs, and expenses incurred in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordconnection therewith.
Appears in 1 contract
Samples: Lease (Chase Corp)
Defaults Remedies. If Tenant fails to pay the Rent, or any installment thereof, within five (5A) days after the same becomes due and payable, or if Tenant violates or fails or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated Lessee shall be deemed to be other than on account in default hereunder upon the occurrence of any of the earliest stipulated Rent, nor following events (“Events of Default”):
(1) Lessee shall fail to make any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon due hereunder within ten (10) days notice served upon Tenant by posting upon after its due date; (2) Lessee shall fail to perform or observe any other term, covenant, or condition of this Agreement; (3) Lessee shall have abandoned the Premises Equipment; (4) any representation or such lien may be enforced warranty of Lessee shall have been untrue in any material respect when made, or any information submitted by Lessee to Lessor shall be false or misleading in any material respect; or (5) Lessee shall have defaulted under any other lawful agreement with Lessor.
(B) Upon the occurrence of an Event of Default, Lessor may declare this Agreement to be in Default, and thereafter may exercise any one or more of the following remedies:
(1) Declare the rent for the Term and all other unpaid rent, fees, taxes and charges under this Agreement immediately due and payable; (2) Repossess, retake and/or retain any or all of the Equipment free of all rights and claims of Lessee without notice, without legal process, or judicial intervention, and without releasing Lessee of any term, covenant or condition provided herein; (3) Sell or otherwise dispose of any or all of the Equipment, whether or not in Lessor’s possession, in a commercially reasonable manner at and apply the option net proceeds of Landlordsuch disposition, after deducting all costs, to the obligations of Lessee, with Lessee remaining liable for any deficiency; (4) Terminate this Agreement; and/or (5) Exercise any other right or remedy available to
(C) XXXXXX AND XXXXXX WAIVE ALL RIGHT TO TRIAL BY JURY OF ALL CLAIMS, DEFENSES, COUNTERCLAIMS AND SUITS OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
Appears in 1 contract
Samples: General Terms & Conditions
Defaults Remedies. If Tenant 8.1 The following shall constitute events of default ("Events of Default") hereunder:
(a) Lessee fails to pay the Rentmake any payments to Lessor when due hereunder;
(b) any representation or warranty of Lessee contained herein or in any document furnished to Lessor in connection herewith is incorrect or misleading in any material respect when made;
(c) Lessee fails to observe or perform any other covenant, agreement or warranty made by Lessee hereunder or under any document delivered pursuant hereto and such failure continues for 30 days after written notice thereof to Lessee;
(d) any default occurs under any other agreement for borrowing money or receiving credit under which Lessee or any installment thereofguarantor or general partner of Lessee may be obligated as borrower, within five lessee or guarantor, if such default (5i) days after consists of the same becomes failure to pay any indebtedness when due and payable, or if Tenant violates or fails or neglects to keep and perform any other obligation thereunder and (ii) gives the holder of the covenantsindebtedness the right to accelerate the indebtedness;
(e) Lessee, conditions, and agreements herein contained on the part any guarantor of Tenant to be kept and performed within thirty (30) days after receipt this Lease or any general partner of written notice of such failure or neglect, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises Lessee makes an assignment for the benefit of Tenantcreditors or files any petition or action under any bankruptcy, reorganization, insolvency or moratorium law, or any other law or laws for the relief of, or relating to, debtors;
(f) any guarantor of this Lease breaches or fails to perform any covenant in liquidation and dischargeits guaranty, or any letter of credit required by this Lease expires or terminates without Lessor's consent, or Lessor receives notice that the letter of credit will not be renewed in whole accordance with its terms;
(g) an involuntary petition is filed under any bankruptcy statute against Lessee, any guarantor of this Lease or in partany general partner of Lessee, as the case may beor any receiver, trustee, custodian or similar official is appointed to take possession of the liability properties of Tenant under the terms and provision Lessee, any guarantor of this Lease. In addition Lease or any general partner of Lessee, unless such petition or appointment is set aside or withdrawn or ceases to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or be in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on effect within 45 days from the date of default increasing by a compounding five percent the filing or appointment;
(5%h) per Lease Year. No waiver of Lessee, any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision guarantor of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be or any general partner of Lessee liquidates, dissolves, dies or enters into any partnership, joint venture (other than in writing signed by Landlord. No payment by Tenant its ordinary course of business), consolidation, merger or receipt by Landlord other combination, or sells, leases or disposes of a lesser substantial portion of its business or assets without the prior written consent of Lessor;
(i) Any lawsuit or lawsuits are filed on behalf of one or more trade creditors against the Borrower in an aggregate amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement Five Million Dollars ($5,000,000) or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided more in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment excess of any installment insurance coverage;
(j) Any judgment or arbitration awards are entered against the Lessee, or the Lessee enters into any settlement agreements with respect to any litigation or arbitration, in an aggregate amount of Rent by One Million Dollars ($1,000,000) or more in excess of any insurance coverage;
(k) Any Governmental Authority takes action that the taking Lessor believes cause a Material Adverse Effect. "Material Adverse Affect" is defined in that certain Bank Loan Agreement dated as of _______ between Lessee and selling Bank of such property in the same manner as in the case of chattel mortgages on default thereunderAmerica NT&SA; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlord.or
Appears in 1 contract
Defaults Remedies. If Tenant fails 23.1 Each of the following shall constitute an Event of Default;
(a) Tenant's failure to pay make any payment of the Rentbasic annual rent, additional rent (excluding reconciliations) or any installment thereof, other sum within five ten (510) days after the same becomes of written notice from Landlord of Tenant's failure to make such payment on such payment's due and payable, or if Tenant violates or fails or neglects date; (b) Tenant's failure to keep and perform any take possession of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed Premises within thirty (30) calendar days after receipt delivery thereof to Tenant; (c) Tenant's violation or failure to perform or observe any other covenant or condition of this Lease for a period of thirty (30) days following Landlord's written notice thereof to Tenant; (d) Tenant's abandonment or vacation of such failure the Premises; (e) an Event of Bankruptcy as specified in Article 27 with respect to Tenant, any general partner of Tenant (a "GENERAL Partner") or neglectGuarantor; or (f) Tenant's dissolution or liquidation.
23.2 If there shall be an Event of Default, or if including an Event of Default prior to the Premises becomes vacant or desertedLease Commencement Date, then, and in each and every such eventthen Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may reenter the option of LandlordPremises, terminate Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the take possession of the Premises. The provisions of this Section shall operate as a notice to quit, any other notice to quit or of Landlord's intention to reenter the Premises and to re-enter the same without demand of Rent or demand of possession and being hereby expressly waived. If necessary, Landlord may forthwith proceed to recover possession of the Premises under and by process virtue of lawthe laws of the jurisdiction in which the Building is located, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entryother proceedings, including reasonable attorneys' fees reentry and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in partpossession, as the case may be, of the liability of Tenant under the terms and provision of this Leasebe applicable. In addition to the foregoing remedies, If Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: elects to terminate this Lease; Lease and/or elects to declare due terminate Tenant's right of possession, then everything contained in this Lease to be done and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date performed by Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (includingcease, without limitationprejudice, reasonable attorneys' fees) incurred by Landlord following a defaulthowever, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover from Tenant all rent and other sums due hereunder through the balance Lease Expiration Date as defined in Section y1.6. No such reentry 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 Rent intention be given to Tenant or pursue 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 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 remedy premises, for such rent and upon such terms and conditions (which may include concessions, 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 basic annual rent, additional rent or damages which may be due or sustained by reason of such default, 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. 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, which shall be, at Landlord's option, either (a) or (b) below:
(A) an amount equal to the basic annual rent and additional rent which would have become due during the remainder of the Lease Term, less the amount of rent, 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 Lease Expiration Date, in which event the cause of action shall be deemed not to have accrued until the Lease Expiration Date; or
(B) an amount equal to the present value (as of the date of Landlord's election to accelerate) of the basic annual rent and additional rent which would have become due during the remainder of the Lease Term, less the rent received by Landlord under any reletting of the Premises, which damages shall be payable to Landlord in one lump sum on demand; provided that Landlord has relet the Premises which reletting may occur at any time up to the Lease Expiration Date. For purposes of this subsection (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.
23.3 TENANT EXPRESSLY WAIVES ANY RIGHT TENANT MAY HAVE TO REDEEM ITS INTEREST IN THE PREMISES FOLLOWING ENTRY OF A JUDGEMENT FOR POSSESSION IN FAVOR OF LANDLORD BY A COURT OF COMPETENT JURISDICTION OR TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THE LEASE OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LEASE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF LANDLORD OR TENANT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LANDLORD'S ENTERING INTO THIS LEASE AND THIS WAIVER IS GIVEN KNOWINGLY, VOLUNTARILY AND INTENTIONALLY.
23.4 If Tenant fails to perform any covenant or observe any condition to be performed or observed by Tenant hereunder or acts in violation of any covenant or condition hereof or fails to make any payment to any third party, Landlord may, but shall not be required to on behalf of Tenant, perform such covenant and/or take such steps, including entering the Premises, as may be necessary or appropriate, in which case Landlord shall have the right to proceed immediately and all costs and expenses incurred by Landlord in so doing, including reasonable legal fees, shall be paid by Tenant to Landlord upon demand, plus interest thereon at the rate per annum equal to the greater of (a) ten percent (10%) per annum; provided, however such rate is not usurious or (b) the highest non usurious rate permitted under the laws of the jurisdiction where the Building is located, from the date of expenditure(s) by Landlord, as additional rent. Landlord's proceeding under the rights reserved to Landlord under this Section shall not in any way prejudice or waive any rights Landlord might otherwise have against Tenant by reason of Tenant's default.
23.5 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 inequity, including those available as a result of any anticipatory breach of this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment Landlord's exercise of any installment such right or remedy shall not prevent the concurrent or subsequent exercise of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option 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.
Appears in 1 contract
Defaults Remedies. (a) If one or more of the following events (“Tenant Defaults”) shall happen and be continuing: (i) Tenant fails to pay make payments of the RentRent or any other sums to be paid hereunder by Tenant, and such failure continues for ten (10) business days after written notice thereof from Landlord (subject, however, to Tenant’s right to contest Real Estate Taxes); or (ii) other than for reasons beyond the reasonable control of Tenant or matters of force majeure. Tenant fails to obtain a certificate of occupancy and open for business from the Leased Premises by December 31, 2017, or, if after opening, Tenant closes its business operations from the Leased Premises for a period of sixty (60) consecutive days (other than for reasons beyond the reasonable control of Tenant, matters of force majeure, temporary closures for repair, restoration or remodeling, or unless closed due to Tenant’s compliance with applicable laws): or (iii) Tenant is in default under the Use Agreement (as hereinafter defined in Section 28 hereof) beyond the expiration of any installment thereof, within five cure or grace period therein provided; or (5iv) days after the same becomes due and payable, Tenant fails to perform or if observe any other covenant or condition to be performed or complied with by Tenant violates or fails or neglects to keep and perform any of the covenants, conditionsunder this Lease, and agreements herein contained on the part of Tenant to be kept and performed within such failure continues for thirty (30) days after receipt of written notice of thereof by Landlord to Tenant or such failure or neglectlonger period as is reasonably necessary to cure such default, or if the Premises becomes vacant or deserted, provided Tenant is diligently proceeding with such cure; then, and in each and every either of such eventevents, Landlord shall have the right, at the option of Landlordits option, then or at any time thereafter while such Tenant Default shall continue, to terminate this Lease by written notice to Tenant's right of possession will thereupon cease .
(b) If any such Tenant Default shall have occurred and terminatebe continuing beyond any applicable cure period, and to the extent permitted by law if Landlord will be entitled to the shall have terminated this Lease, Landlord may re-enter and take possession of the Leased Premises. In such event Tenant shall peacefully surrender the Leased Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. Landlord.
(c) In the event of any such re-entry uncured Tenant Default and recovery of possession of the Leased Premises by process Landlord, Landlord shall be entitled to recover all unpaid Rent for the periods prior to the date of law or otherwisesuch recovery of possession. Thereafter, and until the date when the Term would have expired, Landlord shall be entitled to recover the Rent from Tenant nevertheless agrees to remain answerable for any (and all damagethe actual costs and expenses of collecting such Rent, deficiency or loss of Rent which Landlord may sustain by such re-entryif any, including reasonable attorneys' fees and court costs; and ’ fees), less any amount received by Landlord from reletting the Leased Premises. Landlord agrees to use reasonable efforts to mitigate its damages by reletting the Leased Premises in such casethe event of a Tenant Default. In addition, in the event of any uncured Tenant Default, Landlord reserves full powershall be entitled to pursue all remedies available at law or in equity.
(d) If Landlord fails to perform any covenant or condition to be performed or complied with by Landlord under this Lease, which and such failure continues for thirty (30) days after written notice thereof by Tenant to Landlord or such longer period as is hereby acceded reasonably necessary to by cure such default, provided Landlord is diligently proceeding with such cure: then, in addition to and not in limitation of any other rights and remedies available to Tenant, to relet the Premises for the benefit of Tenant, in liquidation and discharge, in whole or in part, as the case may be, of the liability of Tenant under the terms and provision of this Lease. In addition to the foregoing remedies, Landlord will also have the following remedies to the extent permitted by law and all other remedies afforded to it at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, the withholding of Rent and the exercise of self-help. Tenant shall, at its option and discretion, have the right to terminate this Lease and/or to recover from the Landlord any and all losses (including reasonable attorneys' attorney fees) incurred sustained by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate Tenant as a waiver result of the covenant, condition or agreement itself, or of such default by Landlord.
(e) Without limiting any subsequent breach thereof. No other provision of this Lease Lease, in the event either party (“Defaulting Party”) shall fail or neglect to perform or cause to be performed any act or thing herein provided to be performed by it or shall fail to pay to any third party any sum of money required to be paid by it hereunder and such failure shall continue for a period of thirty (30) days after Defaulting Party’s receipt of written notice thereof from the other (“Non-Defaulting Party”), then, without limiting any of Non-Defaulting Party’s rights herein provided, Non-Defaulting Party may (but shall not be required to) perform or pay the same and Defaulting Party, on demand, shall reimburse Non-Defaulting Party for its out-of-pocket costs in connection therewith which, if Tenant is the Defaulting Party, shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by considered additional Rent due from Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in under this Lease. Landlord Notwithstanding the foregoing, if Non-Defaulting Party in good faith shall have deem that an emergency is occurring or has occurred so that a lien default requires immediate curing, in which event no such notice shall be required to be given by Non-Defaulting Party, then Non-Defaulting Party may take such action as is necessary to cure the default and Defaulting Party, on demand, shall reimburse Non-Defaulting Party for the payment cost thereof which, if Tenant is the Defaulting Party, shall be considered additional Rent due from Tenant under this Lease. Except for the intentional acts or negligence of the Rent upon all of the goodsNon-Defaulting Party, waresits agents, chattels, fixtures, furniture and other personal property of Tenant which may employees or contractors. Non-Defaulting Party shall not be in liable or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordway responsible for any loss, inconvenience, annoyance or demand resulting to Defaulting Party or anyone holding under Defaulting Party for any action taken pursuant to this Section 13(e).
Appears in 1 contract
Samples: Lease With Option to Purchase (Bluegreen Vacations Corp)
Defaults Remedies. If Tenant (a) It will be a Default under this Agreement if any of the following occurs with respect to Client or, if there is more than one Client, any one of them: (i) Client fais to pay any amount due hereunder (other than interest that is to be added to principal pursuant to Section 3(e) hereof); (ii) Client fails to pay the Rentmaintain sufficient collateral in a Collateral Account; (iii) Client breaches or fails to perform any other covenant, agreement, term or condition that is applicable to it under this Agreement, or any installment thereofrepresentation or other statement of Client herein or in any other document delivered in connection herewith shall prove to have been incorrect in any material respect when made or deemed made; (iv) Client dies or, within five if not an individual, ceases to exist; (5v) days after the same becomes due and payableany voluntary or involuntary proceeding for bankruptcy, reorganization, dissolution or liquidation or similar action of Client or of its usual businesses is commenced, or if Tenant violates a trustee in bankruptcy, receiver, conservator or fails or neglects to keep and perform any of the covenants, conditions, and agreements herein contained on the part of Tenant to be kept and performed within thirty (30) days after receipt of written notice of such failure or neglectrehabilitator is appointed, or if the Premises becomes vacant or deserted, then, and in each and every such event, at the option of Landlord, Tenant's right of possession will thereupon cease and terminate, and to the extent permitted by law Landlord will be entitled to the possession of the Premises and to re-enter the same without demand of Rent or demand of possession and may forthwith proceed to recover possession of the Premises by process of law, ANY NOTICE TO QUIT OR OF INTENTION TO RE-ENTER THE SAME BEING HEREBY EXPRESSLY WAIVED BY TENANT. In the event of such re-entry by process of law or otherwise, Tenant nevertheless agrees to remain answerable for any and all damage, deficiency or loss of Rent which Landlord may sustain by such re-entry, including reasonable attorneys' fees and court costs; and in such case, Landlord reserves full power, which is hereby acceded to by Tenant, to relet the Premises an assignment for the benefit of Tenantcreditors is made, with respect to Client or its property, (vi) a Collateral Account is terminated, attached or subjected to a levy; (vii) Client shall fail to provide promptly such financial and other information as UBSCC may reasonably request from time to time; (viii) any indebtedness of Client in respect of borrowed money (including indebtedness guaranteed by Client) or in respect of any swap, forward, cap, floor, collar, option or other derivative transaction, repurchase or similar transaction or any combination of these transactions shall not have been paid when due, or any event or condition shall have caused such indebtedness to become, or shall have permitted the holder hereof to declare such indebtedness to be, due and payable prior to its stated maturity; (ix) any legal proceeding shall have been instituted or any other event shall have occurred or condition shall exist that in UBSCC’s judgment calls into question the validity or binding effect of this Agreement or any of Client's obligations hereunder; or (x) UBSCC determines that the financial condition of Client or Clients' ability to perform its obligations hereunder has been impaired.
(b) If a Default occurs, the Account Balance will become immediately due and payable (without demand) and UBSCC may, in liquidation its sole discretion, liquidate, withdraw or sell all or any part of the Collateral and discharge, in whole or in partapply the same, as well as the case proceeds thereof, to any amounts owed to UBSCC. Such sale may bebe made in UBSCC’s sole discretion by public sale on any exchange or market where such business is then usually transacted or by private sale, and UBSCC may purchase at any such public or private sale. Any Collateral that may decline speedily in value or that is sold on a recognized market may be sold without providing Client prior notice of such sale. Client agrees that, for all other Collateral, two calendar days notice to Client, sent to its last address shown in UBSCC’s account records, shall be deemed reasonable notice of the liability time and place of Tenant under any public sale or time after which any private sale or other disposition of the terms Collateral may occur. Any amounts due and provision of this Leasenot paid on any Advance following a Default shall bear interest from the day following such Default until fully paid at a rate per annum equal to the interest rate applicable to the Advance immediately prior to the Default plus 2.00%. In addition to the foregoing remediesUBSCC’s rights under this Agreement, Landlord UBSCC will also have the following right to exercise any one or more of the rights and remedies of a secured creditor under the New York Uniform Commercial Code, as then in effect.
(c) All rights and remedies of UBSCC under this Agreement are cumulative and are in addition to the extent permitted by law and all other rights and remedies afforded to it that UBSCC may have at law or in equity, all of which shall be cumulative: to terminate this Lease; to declare due and payable all Rent equity or under any other contract or other writing for the unexpired Term as and when the same becomes due and payable or to defer any suit until after the Term without thereby prejudicing its rights; to accelerate the Rent for the remainder enforcement of the Term and declare it all immediately due and payable [with a present value discount two (2) whole percentage points below security interest herein or the prime rate published in The Wall Street Journal on the date Landlord elects said remedy]; and to bring an action for specific performance, injunction, or other equitable relief to prevent any threatened or impending default or to end any existing default. In addition, Landlord may perform any obligation which Tenant has failed to perform after the expiration collection of any applicable notice and/or cure period (except in an emergency, when no notice or cure period will be necessary or afforded), all at the cost of Tenant as Additional Rent payable upon demand. Tenant shall also pay all expenses (including, without limitation, reasonable attorneys' fees) incurred by Landlord following a default, whether or not suit is instituted; the same shall be Additional Rent payable upon demand. In determining the Rent amount due for the balance of the Term, all Additional Rent shall be determined by projecting into the future the Additional Rent payable on the date of default increasing by a compounding five percent (5%) per Lease Year. No waiver of any breach of any covenant, condition, or agreement herein contained shall operate as a waiver of the covenant, condition or agreement itself, or of any subsequent breach thereof. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Landlord shall have a lien for the payment of the Rent upon all of the goods, wares, chattels, fixtures, furniture and other personal property of Tenant which may be in or upon the Premises, Tenant hereby specifically waiving any and all exemptions allowed by law; such lien may be enforced on the nonpayment of any installment of Rent by the taking and selling of such property in the same manner as in the case of chattel mortgages on default thereunder; said sale is to made upon ten (10) days notice served upon Tenant by posting upon the Premises or such lien may be enforced in any other lawful manner at the option of Landlordhereunder.
Appears in 1 contract
Samples: Loan Agreement (Mondavi Robert Corp)
