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 days after Landlord gives Tenant written notice of default; (ii) If Tenant enters into or permits any Transfer in violation of Section 18 above; (iii) If Tenant fails to 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 default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 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; (iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal Premises of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or, (v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3. (b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 10% 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, by breaking open locked doors if necessary, and remove all persons and all or any Premises, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Xxxxxx’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach; (iii) Landlord may recover any and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in the ordinary course of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2). (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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award. (v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession (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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergency. (d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy. (e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal. (f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 2 contracts
Samples: Lease (JFrog LTD), Lease Agreement (JFrog LTD)
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(c22(d) below, Tenant fails to cure such default on or before the date that is 5 days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c22(d) below, Tenant fails to cure the default on or before the date that is 30 days 10days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 10 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 30 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 10 days following Landlord’s notice and continues diligently in good faith to completely cure the default;; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under creditor xxxxxx any federal or state law is filed by or against Tenant, or a bill 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 real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 1015% 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 By lawful means, enter and repossess the Premises, by breaking open locked doors if necessary, and remove all persons and all or any Premisesproperty, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at XxxxxxxxLandlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover To accelerate the whole or any part of the Rent for the balance of the Term, and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in declare the ordinary course of business same to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any immediately due and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).payable; and
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(vc) In accordance with California Civil Code Section 1951.4 addition to the rights and remedies provided in subsection (or any successor statute)b) above, if an Event of Default occurs relating to Tenant’s non-payment of the Rent due hereunder, Tenant acknowledges that hereby authorizes any attorney of any court of record of the Commonwealth of Pennsylvania to appear for Tenant and to confess judgment against Tenant, and in favor of Landlord, for all Rent due hereunder plus costs and an attorney’s collection commission equal to the event Tenant breaches greater of 10% of all Rent or $1,000, for which this Lease or a true and correct copy hereof shall be good and sufficient warrant. TENANT UNDERSTANDS THAT THE FOREGOING PERMITS LANDLORD TO ENTER A JUDGMENT AGAINST TENANT WITHOUT PRIOR NOTICE OR HEARING. ONCE SUCH A JUDGMENT HAS BEEN ENTERED AGAINST TENANT, ONE OR MORE WRITS OF EXECUTION OR WRITS OF GARNISHMENT MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO TENANT AND WITHOUT A HEARING, AND, PURSUANT TO SUCH WRITS, LANDLORD MAY CAUSE THE SHERIFF OF THE COUNTY IN WHICH ANY PROPERTY OF TENANT IS LOCATED TO SEIZE TENANT’S PROPERTY BY LEVY OR ATTACHMENT. IF THE JUDGMENT AGAINST TENANT REMAINS UNPAID AFTER SUCH LEVY OR ATTACHMENT, LANDLORD CAN CAUSE SUCH PROPERTY TO BE SOLD BY THE SHERIFF EXECUTING THE WRITS, OR, IF SUCH PROPERTY CONSISTS OF A DEBT OWED TO TENANT BY ANOTHER ENTITY, LANDLORD CAN CAUSE SUCH DEBT TO BE PAID DIRECTLY TO LANDLORD IN AN AMOUNT UP TO BUT NOT TO EXCEED THE AMOUNT OF THE JUDGMENT OBTAINED BY LANDLORD AGAINST TENANT, PLUS THE COSTS OF THE EXECUTION. Such authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time as often as any of the Rent and other sums shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the initial term of this Lease and abandons the Premises, during any extended or renewal term of this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all after the expiration of its rights and remedies under any extended or renewal term of this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession.
(cd) 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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergency.
(de) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by XxxxxxTenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(ef) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery costs, and any including costs of appeal.
(fg) Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
(h) When this Lease and the Term or any extension thereof shall have been terminated on account of any default by Tenant, or when the Term or any extension thereof shall have expired, Tenant hereby authorizes any attorney of any court of record of the Commonwealth of Pennsylvania to appear for Tenant and for anyone claiming by, through or under Tenant and to confess judgment against all such parties, and in favor of Landlord, in ejectment and for the recovery of possession of the Premises, for which this Lease or a true and correct copy hereof shall be good and sufficient warrant. AFTER THE ENTRY OF ANY SUCH JUDGMENT A WRIT OF POSSESSION MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO TENANT AND WITHOUT A HEARING. If for any reason after such action shall have been commenced it shall be determined and possession of the Premises remain in or be restored to Tenant, Landlord shall have the right for the same default and upon any subsequent default(s) or upon the termination of this Lease or Tenant’s right of possession as herein set forth, to again confess judgment as herein provided, for which this Lease or a true and correct copy hereof shall be good and sufficient warrant.
(i) The warrants to confess judgment set forth above shall continue in full force and effect and be unaffected by amendments to this Lease or other agreements between Landlord and Tenant even if any such amendments or other agreements increase Tenant’s obligations or expand the size of the Premises.
Appears in 2 contracts
Samples: Lease Agreement (PhaseBio Pharmaceuticals Inc), Lease Agreement (PhaseBio Pharmaceuticals Inc)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due within ten (10) days of written notice 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 days after Landlord gives Tenant written notice installments of default;Base Rent; or
(iib) If Tenant enters into does not pay in full within ten (10) days of written notice any payment of additional rent or permits any Transfer in violation of Section 18 above;other charges or payments whether or not herein included as rent, or
(iiic) If Tenant violates or fails to observe and perform or otherwise breaches any other provision of this Leaseagreement, and, except as provided in Section 22(c) below, Tenant fails to covenant or condition herein contained and does not cure the default on or before the date that is 30 within 15 days after written notice from Landlord gives or within a reasonable period after such notice if Tenant notice of default; provided, however, if the default demonstrates to Landlord's satisfaction that cure cannot reasonably be cured completed within 30 days following Landlord’s giving of notice, such period and Tenant shall be afforded additional reasonable time (not is diligently proceeding to exceed 60 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;cure; or
(ivd) If Tenant becomes insolvent or bankrupt in any sense or makes a general an assignment for the benefit of creditors or of offers a composition or settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law act is filed by or against Tenant, or a bill xxxx in equity or other proceeding for the appointment of a receiver receiver, trustee, liquidator, custodian, conservator or similar official for any of Tenant’s assets is commenced's assets, or if any of the real or personal Premises property of Tenant shall be levied upon; provided that upon by any proceeding brought by anyone other than Landlord sheriff, marshal or Tenant under any bankruptcy, insolvency, receivership or similar law shall constable and does not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any cure within 30 days after written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161from landlord; or,
(ve) If Tenant abandons or vacates the Property transfers assets in excess of five a sixty percent (560%) business days at of its assets, such transfer shall constitute a timedefault hereunder unless, without making provisions for security. Tenant waives any right prior to notice Tenant may have under Section 1951.3 of the California Civil Codesuch transfer, the terms Tenant shall cause all recipients of its assets to execute a guaranty agreement in form acceptable to the Landlord, obligating such transferee (on a primary basis with the Tenant and all other obligors) to pay all obligations of Tenant arising under this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.lease;
(bf) If an Event of Default occursFailure to make payments under the Promissory Note; which Promissory Note is described in Paragraph 47 below and which is attached hereto as Exhibit I, after any applicable cure and grace period. Then, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwiseany such event, Landlord shall have the following rights and remediesrights:
(i) Landlord, without any obligation to do so, may elect to cure 1. To re-enter 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 10% 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 Premises and repossess and enjoy the Premises, by breaking open locked doors if necessarytogether with all additions, alterations and improvements and to remove all persons and all or any Premisesproperty therefrom. Upon recovering possession of the Premises by reason or based upon or arising out of a default on the part of Tenant, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s Landlord's option, either terminate this lease or make Alterations such alterations and repairs as may be necessary in order to relet the Premises and relet all the Premises or any part(s) part of 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 Premises for Xxxxxx’s accountterm of this lease and at such rent or rents and upon such other terms and conditions as Landlord may decide. Xxxxxx agrees 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 to Landlord on demand any deficiency (taking into account all costs incurred by to Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover any Such deficiency shall be calculated and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in the ordinary course of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2)paid monthly.
(iv) 2. To terminate this Lease lease and the Term term hereby created without any right on the part of Tenant to save 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, in addition to any and recover as all sums and damages the worth, for violation of Tenant's obligations hereunder in existence at the time of any awardsuch termination, damages for Tenant's default in an amount equal to the amount of the amount by which the unpaid Rent rent reserved for the balance of the Term after the time term of the award exceeds the amount of the rental loss that the Tenant proves could this lease, as well as all other charges, payments, costs and expenses herein agreed to be reasonably avoidedpaid by Tenant, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights which amount shall be immediately due and remedies under this Lease, including, without limitation, the right payable from Tenant to recover Rent as it becomes due under this LeaseLandlord. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required entitled to give Tenant exercise its rights under this subparagraph 2. until the notice and opportunity to cure any monetary default provided in Section 22(a) above more than three times in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any earlier of the notice and cure rights provided following to occur
(i) the first default under this Lease, and (d) or (e) above.
(ii) Landlord shall the first default under (a), (b) or (c) above during the term of this Lease not be cured by Tenant within thirty (30) days of any required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Sections 13, 20 or 27 or in an emergencynotice.
(diii) No waiver by Landlord of in any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent dueevent, or Landlord’s right to pursue any other available remedy.
the third default under (eb) If either party commences an action or commences arbitration against (c) above during 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter term of this Lease.
Appears in 1 contract
Samples: Lease Agreement (Tsi Telsys Corp)
Defaults Remedies. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Tenant:
(a) It shall be an Event The vacating or abandonment of Default:
(i) If the Premises by Tenant does not and a failure to continue to 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 days after Landlord gives Tenant written notice of defaultrent;
(iib) If The failure by Tenant enters into to make any payment of rent or permits any Transfer in violation of Section 18 aboveother payment required to be made by Tenant hereunder as and when due;
(iiic) If The failure by Tenant fails to observe and or perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 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;
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real covenants, conditions or personal Premises provisions of this Lease to be observed or performed by Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcythose described in Paragraph (b) hereinabove, insolvency, receivership or similar law where such failure shall not constitute an Event of Default until such proceeding has continued unstayed continue for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess a period of five (5) business days after written notice thereof from Landlord to Tenant; provided, however, that if the nature of Tenant's default is such that more than five (5) business 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 (5) business 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 of a petition to have Tenant adjudged bankrupt or a petition for reorganization or arrangement 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 the attachment, execution or other judicial seizure of substantially all of Tenant's assets located at a timethe Premises or Tenant's interest in this Lease, where 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 making provisions for security. Tenant waives limiting Landlord in the exercise of any right to notice Tenant or remedy which Landlord may have under Section 1951.3 by reason of the California Civil Codesuch default or breach, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, proceed in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, Landlord shall have the following rights and remediesmanner:
(i) Landlord, without Terminate Tenant's right to possession of the Premises by any obligation to do so, may elect to cure the default on behalf of Tenantlawful means, in which event case Tenant's possession shall be terminated and Tenant shall reimburse immediately surrender possession of the Premises to Landlord. In such event, Landlord upon demand for any sums paid or costs shall be entitled to recover from Tenant all damages incurred by Landlord (together with an administrative fee of 10% 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, by breaking open locked doors if necessary, and remove all persons and all or any Premises, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Xxxxxx’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of Tenant's default, including, but not limited to, the cost of recovering possession of the Premises; expenses of reletting, including necessary renovation or alteration of the Premises; reasonable attorneys' fees; any real estate commission actually paid; that portion of the Lease and commission paid by Landlord pursuant to any agency agreement applicable to the unexpired term of this Lease; and such relettingother out-of- pocket expenses as Landlord might incur. In Unpaid installments of rent or other sums shall bear interest from date due at the event rate of reletting without twelve percent (12.00%) per annum, after Tenant's right to possession has been terminated. No receipt of money by Landlord from Tenant after the termination of this Lease, Landlord may at the service of notice, the commencement of any time thereafter elect to terminate suit or final judgment or repossession shall automatically reinstate, continue or extend the term of this Lease for or affect any such previous breach;
(iii) Landlord may recover any and all damages directly caused by Xxxxxx’s failure to perform under this Leasenotice, demand, suit or which are likely in the ordinary course of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2)judgment.
(ivii) To terminate this Lease and the Term without any Maintain Tenant's 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 recover as damages the worth, at the time of any award, of the amount by possession in which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, case this Lease shall continue in effect for so long as whether or not Tenant shall have abandoned the Premises. In such event, Landlord does not terminate Tenant’s right shall be entitled to possession, and Landlord may enforce all of its Landlord's rights and remedies under this Lease, including, without limitation, including the right to recover Rent the rent as it becomes due hereunder, and reasonable attorneys' fees.
(iii) Pursue any other remedy not or hereafter available to Landlord under this Lease. Acts the laws or jurisdictional decisions of maintenance or preservation or efforts to re-let the state in which the Premises or the appointment of a receiver upon initiative are located. All rights and remedies of Landlord to protect Landlord’s interests under this Lease herein enumerated shall not constitute a termination of Tenant’s be cumulative, and none shall exclude any other right to possession
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) allowed by law. Landlord shall not be in default unless Landlord fails to perform the obligations required of Landlord within a reasonable time, but in no event sooner than thirty (30) days after written notice by Tenant to give Tenant Landlord specifying wherein Landlord has failed to perform such obligations; provided, however, that if the notice and opportunity to cure any monetary default provided in Section 22(a) above nature of Landlord's obligation is such that more than three times in any consecutive 12-month periodthirty (30) days is required for performance, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) then Landlord shall not be required in default if Landlord commences performance within such thirty (30) days and thereafter diligently prosecutes the same to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Sections 13, 20 or 27 or in an emergencycompletion.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Samples: Lease Agreement (Digex Inc/De)
Defaults Remedies. (a) It 21.01. The occurrence of any one or more of the following events shall be an Event constitute a default and breach of Defaultthis lease by Tenant:
A. Failure to pay rent or any other required payment when due, if the failure continues for five (i5) 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 days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails has been given to 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 default on or before the date that is 30 days after Landlord gives Tenant notice of defaultTenant; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant that any such notice shall be afforded additional reasonable in lieu of, and not in addition to, any notice required under Section 1161, et seq., of the California Code of Civil Procedure;
B. Abandonment of the premises;
C. The failure by Tenant to observe or perform any other covenants, conditions or provisions of this lease to be observed or performed by Tenant where (except where a different period of time is specified in this lease) such failure shall continue for a period of thirty (30) days after written notice thereof from Landlord to Tenant; provided, however, that any such notice shall be in lieu of, and not in addition to, any notice required under Section 1161 et seq., of the California Code of Civil Procedure. If the nature of Tenant's default is such that more than thirty (30) days is reasonably required for its cure, then tenant shall not be deemed to exceed 60 days following Landlord’s notice) to cure the be in default 36 39 if Tenant begins commences such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to cure completion;
D. The filing or occurrence of:
(1) a petition in bankruptcy by or against the default Tenant, unless cured or removed within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the defaultsixty (60) days;
(iv2) If a petition or answer by Tenant becomes insolvent seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution or makes other relief of the same or different kind under any provision of the Bankruptcy Act;
(3) adjudication of Tenant as a general bankrupt or insolvent;
(4) an assignment of all or substantially all of Tenants assets for the benefit of creditors or offers a settlement to creditors, or if ;
(5) a petition in bankruptcy or for reorganization other proceeding, except by Landlord, its agents or for an arrangement with creditors under any federal or state law is filed affiliates, by or against Tenant, for, or the appointment of, a bill trustee, receiver, or liquidator of Tenant with respect to all or substantially all of its property; provided, however, that Tenant shall not be in equity default if Tenant cures or removes such a petition or proceeding within sixty (60) days;
(6) a petition or other proceeding by or against Tenant for the appointment of a receiver for any of Tenant’s assets is commencedits dissolution or liquidation, or if any the taking of possession of the real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Lawsgovernmental authority in connection with dissolution or liquidation, includingprovided, without limitationhowever, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If that Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 10% 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, by breaking open locked doors if necessary, and remove all persons and all or any Premises, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Xxxxxx’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover any and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in the ordinary course of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.in
Appears in 1 contract
Samples: Office Lease (Harbor Bancorp /)
Defaults Remedies. (a) It The occurrence of any of the following shall be constitute an Event event of Defaultdefault hereunder by Tenant:
(i) If The Rent due from Tenant does hereunder is 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 days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to 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 default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured paid within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 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;
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal Premises of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at after the date due (provided, however, not more frequently than twice in any consecutive twelve (12) month period, Landlord agrees to give Tenant written notice of Tenant's failure to timely make a time, without making provisions for security. payment of Rent and Tenant waives shall have five (5) business days from the date such notice is deemed to have been received pursuant to Paragraph 29 hereof to make such payment of Rent before an event of default shall be deemed to have occurred) or any right other sum of money due from Tenant hereunder is not paid within five (5) business days after written notice from Landlord;
(ii) The Premises are abandoned pursuant to notice Section 441.065 X.X.Xx.;
(iii) Any petition is filed by or against Tenant may have under Section 1951.3 any section or chapter of the California Civil CodeNational or Federal Bankruptcy Act or any other applicable Federal or State bankruptcy, insolvency or other similar law, and, in the terms case of a petition filed against Tenant, such petition is not dismissed within thirty (30) days after the date of such filing; if Tenant shall become insolvent or transfer property to defraud creditors; if Tenant shall make an assignment for the benefit of creditors; or if a receiver is appointed for any of Tenant's assets;
(iv) Tenant fails to bond off or otherwise remove any lien filed against the Premises or the Building by reason of Tenant's actions, within fifteen (15) days after Tenant has notice of the filing of such lien;
(v) Tenant fails to observe, perform and keep the covenants, agreements, provisions, stipulations, conditions, and Rules and Regulations herein contained to be observed, performed and kept by Tenant and persists in such failure after ten (10) days written notice by Landlord requiring that Tenant remedy, correct, desist or comply (or if any such failure to comply on the part of Tenant would reasonably require more than ten (10) days to rectify, unless Tenant commences rectification within the ten (10) day period and thereafter promptly, effectively and continuously proceeds with the rectification of the failure to comply on the part of Tenant and, in all such events, cures such failure to comply on the part of Tenant no later than forty-five (45) days after such notice);
(vi) If all or any part of this Section 22(a)(vLease shall be assigned, or if all or any part of the Premises shall be sublet, either voluntarily or by operation of law, except in strict accordance with the requirements of Paragraph 11 hereof;
(vii) being deemed such notice If Tenant shall default with respect to any other lease or other written agreement between Landlord and Tenant;
(viii) Tenant as required by said Section 1951.3or any guarantor of Tenant's obligations ("Guarantor") (if either is a corporation) is liquidated or dissolved or its charter expires or is revoked, or Tenant or Guarantor (if either is a partnership or business association) is dissolved or partitioned, or Tenant or Guarantor (if either is a trust) is terminated or expires, or if Tenant or Guarantor (if either is an individual) dies.
(b) If Upon the occurrence of an Event event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwisedefault, Landlord shall have the following rights option to do and remediesperform any one or more of the following:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of TenantTerminate this Lease, in which event Tenant shall reimburse immediately surrender the Premises to Landlord. If Tenant shall fail to do so, Landlord may, without further notice and without prejudice to any other remedy Landlord may have, enter upon demand the Premises without the requirement of resorting to the dispossessory procedures and expel or remove Tenant and Tenant's effects without being liable for any sums paid claim for trespass or costs incurred damages therefor. Upon any such termination, Tenant shall remain liable to Landlord for damages, due and payable monthly on the day Rent would have been payable hereunder, in an amount equal to the Rent and any other amounts which would have been owing by Landlord (together with an administrative fee Tenant for the balance of 10% thereof) in curing the defaultTerm, plus interest at had this Lease not been terminated, less the Interest Rate from net proceeds, if any, of any reletting of the respective dates Premises by Landlord, after deducting all of Landlord’s incurring 's costs and expenses (including, without limitation, brokerage and attorneys' fees and expenses) incurred in connection with or in any way related to the termination of this Lease, eviction of Tenant and such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;reletting; and/or
(ii) To enter Declare the entire amount of Rent calculated on the current rate being paid by Tenant, and repossess other sums which in Landlord's reasonable determination would become due and payable during the remainder of the Term, discounted to present value by using a reasonable discount rate selected by Landlord, to be due and payable immediately. Upon such acceleration of such amounts, Tenant agrees to pay the same at once, together with all Rent and other amounts theretofore due, at Landlord's address as provided herein; provided however, that such payment shall not constitute a penalty or forfeiture but shall constitute liquidated damages for Tenant's failure to comply with the terms and provisions of this Lease (Landlord and Tenant agreeing that Landlord's actual damages in such an event are impossible to ascertain and that the amount set forth above is a reasonable estimate thereof). Upon making such payment, Tenant shall receive from Landlord all rents received by Landlord from other tenants renting the Premises during the Term, provided that the monies to which Tenant shall so become entitled shall in no event exceed the entire amount actually paid by Tenant to Landlord pursuant to the preceding sentence, less all of Landlord's costs and expenses (including, without limitation, brokerage and attorneys' fees and expenses) incurred in connection with or in any way related to termination of this Lease, eviction of Tenant and the reletting of the Premises. The acceptance of such payment by Landlord shall not constitute a waiver of rights or remedies to Landlord for any failure of Tenant thereafter occurring to comply with any term, provision, condition or covenant of this Lease; and/or
(iii) Enter the Premises as the agent of Tenant without the requirement of resorting to the dispossessory procedures and without being liable for any claim for trespass or damages therefor, and, in connection therewith, rekey the Premises, by breaking open locked doors if necessary, remove Tenant's effects therefrom and remove all persons and all or any Premises, by action store the same at law or otherwiseTenant's expense, without being liable for prosecution or damages. Landlord mayany damage thereto, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises as the agent of Tenant, with or without advertisement, by private negotiations or otherwise, for any term Landlord deems proper, and relet all or any part(s) of receive the Premises for Xxxxxx’s accountrent therefor. Xxxxxx agrees to Tenant shall pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting, but Tenant shall not be entitled to any surplus so arising. In Landlord and Tenant agree that Landlord shall have no obligation to mitigate Landlord's damages under the event Lease. Tenant shall reimburse Landlord for all costs and expenses (including, without limitation, brokerage and attorneys' fees and expenses) incurred in connection with or in any way related to the eviction of Tenant and reletting the Premises, and for the amount of any other Rent which would have been due from Tenant to Landlord hereunder which is not recovered from reletting or due to inability to relet the Premises. Landlord, in addition to but not in lieu of or in limitation of any other right or remedy provided to Landlord under the terms of this Lease or otherwise (but only to the extent such sum is not reimbursed to Landlord in conjunction with any other payment made by Tenant to Landlord), shall have the right to be immediately repaid by Tenant the amount of all sums expended by Landlord and not repaid by Tenant in connection with preparing or improving the Premises to Tenant's specifications and any and all costs and expenses incurred in renovating or altering the Premises to make it suitable for reletting. No re-entry or taking possession of the Premises by Landlord, as provided in this Paragraph, shall be construed as an election on its part to terminate this Lease unless a notice of such intention is given to Tenant (all other demands and notices of forfeiture or other similar notices being hereby expressly waived by Tenant). Notwithstanding any reletting without termination of this Leasetermination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover any and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely breach in the ordinary course of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter manner provided in effect (including, without limitation, California Civil Code Section 1951.2).this Paragraph; and/or
(iv) To terminate this Lease and As agent of Tenant, do whatever Tenant is obligated to do by the Term without any right on the part provisions of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, but not limited to, entering the Premises, without limitationbeing liable to prosecution or any claims for damages in order to accomplish this purpose. Tenant agrees to reimburse Landlord immediately upon demand for any expenses which Landlord may incur in thus effecting compliance with this Lease on behalf of Tenant, and Tenant further agrees that Landlord shall not be liable for any damages resulting to Tenant from such action, whether caused by the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative negligence of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possessionor otherwise; and/or
(c) Any provision Pursuit by Landlord of any of the foregoing remedies shall not preclude the pursuit of any damages incurred, or of any of the other remedies provided herein or available, at law or in equity. Landlord agrees to the contrary in this Section 22 notwithstandingexercise commercially reasonable efforts to mitigate its damages resulting from Tenant's default; provided, (i) however, so long as Landlord has exercised commercially reasonable efforts to mitigate its damages, Landlord shall not be required liable to give Tenant for, nor shall Tenant's liability to Landlord be diminished by, Landlord's inability to relet the notice and opportunity to cure any monetary default provided in Section 22(a) above more than three times 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, and (ii) Premises. Landlord shall not be required deemed to give such notice prior have exercised commercially reasonable efforts to exercising mitigate its rights under Section 22(b) damages if Tenant fails Landlord offers to comply with relet the provisions of Sections 13, 20 or 27 or Premises in an emergencytheir then "as is" condition without offering any allowance for any leasehold improvements thereto.
(d) No waiver act or thing done by Landlord or Landlord's employees or agents during the Term shall be deemed an acceptance of a surrender of the Premises. Neither the mention in this Lease of any particular remedy, nor the exercise by Landlord of any breach by Tenant particular remedy hereunder, or at law or in equity, shall be a waiver of any subsequent breach, nor shall any forbearance by preclude Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of from any other right remedy Landlord might have under this Lease, or remedy provided herein or by law, 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 payment Any waiver of or redress for any violation of any covenant or condition contained in this Lease or any of the Rules and Regulations now or hereafter adopted by Tenant or Landlord, shall not prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation. The receipt or acceptance by Landlord of a lesser amount than Rent with knowledge of the total amount due Landlord under breach of any covenant in this Lease shall not be deemed a waiver of such breach. No receipt of monies by Landlord from or for the account of Tenant or from anyone in possession or occupancy of the Premises after the termination in any way of this Lease or after the giving of any notice of termination, shall reinstate, continue or extend the term or affect any notice given to be Tenant prior to the receipt of such money, it being agreed that after the service of notice or the commencement of a suit, or after final judgment for possession of the Premises, Landlord may receive and collect any Rent or other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfactionamounts due Landlord, and Landlord may accept such check payment shall not waive or payment without prejudice to Landlord’s right to recover the balance of Rent dueaffect such notice, suit or Landlord’s right to pursue any other available remedyjudgment.
(e) If either party commences an action Any failure by Landlord to observe or commences arbitration against the other party arising out perform any provision, covenant or condition of this Lease required to be observed or in connection with performed by Landlord, if such failure continues for thirty (30) days after written notice thereof from Tenant to Landlord, shall constitute a default by Landlord under this Lease, provided, however, that if the prevailing party nature of such default is such that the same cannot reasonably be cured within a thirty (30) day period, Landlord shall not be deemed to be in default if it shall commence such cure within such thirty (30) day period and thereafter rectify and cure such default with due diligence. Tenant shall also have any and all rights available under the laws of the state in which the Premises are situated. Without limiting the generality of the foregoing, if Landlord's default constitutes a failure of Landlord to perform its obligations under this Lease, such failure renders the Premises untenantable in whole or in part (as determined by an independent architect) and Landlord has not cured (or commenced to cure) such failure within the time frames set forth above, Tenant may take such actions as are reasonably necessary to render the Premises tenantable, in which event Tenant shall be entitled to have and recover from the other party its attorneys’ feesLandlord all reasonable, costs out of suit, expert and consulting fees incurred pocket amounts expended by Tenant in such legal actionconnection therewith, and if Landlord fails to pay to Tenant such amounts within thirty (30) days after written demand therefor accompanied by documentation of the amounts expended, then Tenant shall be entitled to deduct such amounts from Rent owed by Tenant to Landlord (Tenant agreeing, however, that the maximum amount Tenant shall be entitled to deduct from any appeal.
single monthly payment of Rent shall not exceed twenty-five percent (f25%) of such monthly payment). Notwithstanding the foregoing, Tenant shall not be entitled to offset against Rent any amount which Landlord and Xxxxxx waive in good faith disputes as being owed to Tenant until such time as Tenant's entitlement to such disputed amount has been determined by a court of competent jurisdiction; provided, however, (i) if the right disputed amount is less than $25,000, the parties agree to arbitrate the issue before a single arbitrator in accordance with the Expedited Procedures of the Commercial Arbitration Rules of the American Arbitration Association in lieu of submitting the dispute to a trial court of competent jurisdiction, and (ii) if there are less than six (6) months remaining in the Term of the Lease, Tenant may offset the disputed amount against Rent and pay the disputed amount either into the registry of the court or into an escrow account maintained by jury in any action or proceeding based upon or related tothe American Arbitration Association, as applicable. At such time as the dispute has been resolved, the subject matter of this Leaseamount held by the court or the American Arbitration Association, together with any interest that has been earned thereon, shall be paid to the party determined to be entitled thereto.
Appears in 1 contract
Samples: Lease Agreement (Labone Inc/)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when within 5 days of the due date 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 days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to 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 default on or before the date that is 30 10 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 10 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 30 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 10 days following Landlord’s notice and continues diligently in good faith to completely cure the default;; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill bxxx in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 1015% 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 peaceably enter and repossess the Premises, by breaking open locked doors if necessary, and remove all persons and all or any Premisesproperty, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at XxxxxxxxLandlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover To accelerate the whole or any part of the Rent for the balance of the Term, and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in declare the ordinary course of business same to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any immediately due and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).payable; and
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by XxxxxxTenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery costs, and any including costs of appeal.
(f) Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent andwithin five (5) business days after Landlord gives Tenant notice that such Rent was not paid when due, except as provided in Section Subsection 22(c) below, Tenant fails to cure such default on or before the date that is 5 days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section Subsection 22(c) below, Tenant fails to cure the default on or before the date that is 30 days ten (10) Business Days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days ten (10) Business Days following Landlord’s giving of 's notice, Tenant shall be afforded additional reasonable time to cure the default (not to exceed 60 days following Landlord’s noticean additional one hundred Eighty (180) to cure the default days) if Tenant begins to cure the default within 30 days ten (10) Business Days following Landlord’s 's notice and continues diligently in good faith to completely cure the default;
(iviii) If Tenant becomes insolvent or bankrupt in any sense or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill xxxx in equity or other proceeding for the appointment of a receiver for any of Tenant’s 's assets is commenced, or if any of the real or personal Premises property of Tenant shall be levied uponupon in connection with such insolvency or bankruptcy proceeding; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant .
(iv) If Tenant enters in to this or permits a Transfer in violation of Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,18 above.
(v) If any default occurs under the Improvements Agreement which is not cured within the time periods specified therein.
(vi) If, subject to the reductions permitted under Section 27, the LC is terminated or expires prior to the original Expiration Date of this Lease, or if Landlord receives notice from the issuing bank that the LC will expire or be terminated prior to the original Expiration Date of this Lease and Tenant abandons does not cause the LC to be renewed or vacates reissued within the Property in excess earlier of (A) five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such Business Days after Landlord’s written notice to Tenant as required by said Section 1951.3Tenant, or (B) thirty (30) days prior to the effective date of such expiration or termination.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 in curing the default (together with an administrative fee of 1015% thereof) in curing the default), plus interest thereon at the Interest Rate from the respective dates of Landlord’s 's incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Additional Rent;
(ii) To enter and repossess the Premises, by breaking open locked doors if necessary, Premises and remove all persons and all or any Premisesproperty, by action at law or otherwisein accordance with applicable Laws, without being liable for prosecution or damages. , and Landlord may, at Xxxxxxxx’s Landlord's option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Xxxxxx’s Tenant's account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover To accelerate the whole or any part of the Rent for the balance of the Term, and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in declare the ordinary course of business same to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any immediately due and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 IN ADDITION TO THE RIGHTS AND REMEDIES PROVIDED ABOVE, IF AN EVENT OF DEFAULT OCCURS RELATING TO TENANT'S NON-PAYMENT OF THE RENT DUE HEREUNDER, TENANT HEREBY AUTHORIZES ANY ATTORNEY OF ANY COURT OF RECORD OF THE COMMONWEALTH OF PENNSYLVANIA TO APPEAR FOR TENANT AND TO CONFESS JUDGMENT AGAINST TENANT, AND IN FAVOR OF LANDLORD, FOR ALL RENT DUE HEREUNDER PLUS COSTS AND AN ATTORNEY'S COLLECTION COMMISSION EQUAL TO THE GREATER OF 10% OF ALL RENT OR $1,000, FOR WHICH THIS LEASE OR A TRUE AND CORRECT COPY HEREOF SHALL BE GOOD AND SUFFICIENT WARRANT. TENANT UNDERSTANDS THAT THE FOREGOING PERMITS LANDLORD TO ENTER A JUDGMENT AGAINST TENANT WITHOUT PRIOR NOTICE OR HEARING. ONCE SUCH A JUDGMENT HAS BEEN ENTERED AGAINST TENANT, ONE OR MORE WRITS OF EXECUTION OR WRITS OF GARNISHMENT MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO TENANT AND WITHOUT A HEARING, AND, PURSUANT TO SUCH WRITS, LANDLORD MAY CAUSE THE SHERIFF OF THE COUNTY IN WHICH ANY PROPERTY OF TENANT IS LOCATED TO SEIZE TENANT'S PROPERTY BY LEVY OR ATTACHMENT. IF THE JUDGMENT AGAINST TENANT REMAINS UNPAID AFTER SUCH LEVY OR ATTACHMENT, LANDLORD CAN CAUSE SUCH PROPERTY TO BE SOLD BY THE SHERIFF EXECUTING THE WRITS, OR, IF SUCH PROPERTY CONSISTS OF A DEBT OWED TO TENANT BY ANOTHER ENTITY, LANDLORD CAN CAUSE SUCH DEBT TO BE PAID DIRECTLY TO LANDLORD IN AN AMOUNT UP TO BUT NOT TO EXCEED THE AMOUNT OF THE JUDGMENT OBTAINED BY LANDLORD AGAINST TENANT, PLUS THE COSTS OF THE EXECUTION. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS ANY OF THE RENT AND OTHER SUMS SHALL FALL DUE OR BE IN ARREARS, AND SUCH POWERS MAY BE EXERCISED AS WELL AFTER THE EXPIRATION OF THE INITIAL TERM OF THIS LEASE AND DURING ANY EXTENDED OR RENEWAL TERM OF THIS LEASE AND AFTER THE EXPIRATION OF ANY EXTENDED OR RENEWAL TERM OF THIS LEASE.
(or any successor statute)vi) WHEN THIS LEASE AND THE TERM OR ANY EXTENSION THEREOF SHALL HAVE BEEN TERMINATED ON ACCOUNT OF ANY EVENT OF DEFAULT BY TENANT, Tenant acknowledges that in the event Tenant breaches this Lease and abandons the PremisesOR WHEN THE TERM OR ANY EXTENSION THEREOF SHALL HAVE EXPIRED, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possessionTENANT HEREBY AUTHORIZES ANY ATTORNEY OF ANY COURT OF RECORD OF THE COMMONWEALTH OF PENNSYLVANIA TO APPEAR FOR TENANT AND FOR ANYONE CLAIMING BY, and Landlord may enforce all of its rights and remedies under this LeaseTHROUGH OR UNDER TENANT AND TO CONFESS JUDGMENT AGAINST ALL SUCH PARTIES, includingAND IN FAVOR OF LANDLORD, without limitationIN EJECTMENT AND FOR THE RECOVERY OF POSSESSION OF THE PREMISES, the right to recover Rent as it becomes due under this LeaseFOR WHICH THIS LEASE OR A TRUE AND CORRECT COPY HEREOF SHALL BE GOOD AND SUFFICIENT WARRANT. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possessionAFTER THE ENTRY OF ANY SUCH JUDGMENT A WRIT OF POSSESSION MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO TENANT AND WITHOUT A HEARING. IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED IT SHALL BE DETERMINED AND POSSESSION OF THE PREMISES REMAIN IN OR BE RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT FOR THE SAME EVENT OF DEFAULT AND UPON ANY SUBSEQUENT EVENT OF DEFAULT(S) OR UPON THE TERMINATION OF THIS LEASE OR TENANT'S RIGHT OF POSSESSION AS HEREIN SET FORTH, TO AGAIN CONFESS JUDGMENT AS HEREIN PROVIDED, FOR WHICH THIS LEASE OR A TRUE AND CORRECT COPY HEREOF SHALL BE GOOD AND SUFFICIENT WARRANT.
(vii) THE WARRANTS TO CONFESS JUDGMENT SET FORTH ABOVE SHALL CONTINUE IN FULL FORCE AND EFFECT AND BE UNAFFECTED BY AMENDMENTS TO THIS LEASE OR OTHER AGREEMENTS BETWEEN LANDLORD AND TENANT EVEN IF ANY SUCH AMENDMENTS OR OTHER AGREEMENTS INCREASE TENANT'S OBLIGATIONS OR EXPAND THE SIZE OF THE PREMISES. TENANT WAIVES ANY PROCEDURAL ERRORS IN CONNECTION WITH THE ENTRY OF ANY SUCH JUDGMENT OR IN THE ISSUANCE OF ANY ONE OR MORE WRITS OF POSSESSION OR EXECUTION OR GARNISHMENT THEREON.
(viii) TENANT KNOWINGLY AND EXPRESSLY WAIVES (i) ANY RIGHT, INCLUDING, WITHOUT LIMITATION, UNDER ANY APPLICABLE STATUTE, WHICH TENANT MAY HAVE TO RECEIVE A NOTICE TO QUIT PRIOR TO LANDLORD COMMENCING AN ACTION FOR REPOSSESSION OF THE PREMISES AND (ii) ANY RIGHT WHICH TENANT MAY HAVE TO NOTICE AND TO HEARING PRIOR TO A LEVY UPON OR ATTACHMENT OF TENANT'S PROPERTY OR THEREAFTER.
(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 any monetary default provided in Section Subsection 22(a) above more than three times 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, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section Subsection 22(b) if Tenant fails to comply with the provisions of Sections 13, 18, 20 or 27 27, or in an emergency. Notwithstanding the foregoing, Landlord shall provide Tenant with additional written notice at least thirty (30) days prior to exercising any confession of judgment against Tenant pursuant to Sections 22(b)(v) - 22(b)(viii); provided, however, that if Landlord elects to confess judgment for Rent and attorney fees pursuant to Section 22(b)(v) without first accelerating the Rent, thereby requiring multiple confessions of judgment as Rent accrues, a single notice of such election delivered to Tenant at least thirty (30) days prior to the first such exercise of the confession of judgment shall suffice, and no further notices shall be required for subsequent confessions of judgment for Rent and attorney fees.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s Tenant's default shall not constitute a waiver of Landlord’s 's right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s 's right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration against (i) Tenant shall pay upon demand all costs and expenses, including the other party arising out reasonable fees and out-of-pocket expenses of or in connection with this Leasecounsel, the prevailing party shall be entitled to have agents and recover from the other party its attorneys’ feesothers retained by Landlord, costs of suit, expert and consulting fees incurred in such legal actionenforcing Tenant's obligations hereunder or incurred by Landlord in any litigation, negotiation or transaction in which Tenant causes Landlord to become involved. Landlord shall pay upon demand all costs and expenses, including the reasonable fees and out-of-pocket expenses of counsel, agents and others retained by Tenant, incurred in enforcing Landlord's obligations hereunder or incurred by Tenant in any litigation, negotiation or transaction in which Landlord causes Tenant to become involved. Notwithstanding the foregoing, each of Landlord and Tenant shall pay the fees of its own counsel in negotiating this Lease and any appealamendment thereto or extension of the term thereof as well as any estoppel certificate or subordination, non-disturbance and attornment agreement.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Defaults Remedies. If any of the following shall occur:
(a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all installments of rent (whether Fixed Rent andor additional rent) or any other charge or payment whether or not herein included as rent, within five (5) business days of receiving written notice from Landlord of any overdue payment, except as provided that if Landlord shall have given two such notices of default in Section 22(cthe payment of any rent in any twelve (12) belowmonth period, Tenant fails shall not be entitled to cure any further notice of its delinquency in the payment of any rent until such time as 12 consecutive months shall have elapsed without Tenant having failed to make any such payment when due, and the occurrence of any default on or before in the date that is 5 days payment of any Rent within such 12 month period after Landlord gives Tenant written notice the giving of two such notices shall constitute an event of default;
(iib) If Tenant enters into violates or permits fails to perform or comply with any Transfer non-monetary covenant, agreement or condition herein contained within thirty (30) days of receiving written notice from Landlord of Tenant’s failure to comply with any non-monetary obligation of the Lease. Notwithstanding the foregoing, if it is unreasonable for the Tenant to remedy such failure within the aforementioned thirty (30) day period, Tenant shall have sixty (60) days to remedy such failure so long as Tenant initiates the remedy within the initial thirty (30) day period and thereafter diligently promotes the cure to completion as soon as practicable and in violation of Section 18 aboveany event within such 60 day period;
(iiic) If Tenant fails abandons the Premises or removes or attempts to observe remove Tenant’s property therefrom other than in the ordinary course of business without having first paid to Landlord in full all rent and perform charges that may have become due as well as all which will become due thereafter; or
(d) An involuntary case under the federal bankruptcy law as now or otherwise breaches hereafter constituted is commenced against Tenant or any guarantor or surety of Tenant’s obligations under this Lease (“Guarantor”), or under any other provision applicable federal or state bankruptcy, insolvency, reorganization, or other similar law, or there is filed against Tenant or a Guarantor a petition seeking the appointment of this Leasea receiver, andliquidator or assignee, except as provided in Section 22(ccustodian, trustee, sequestrator (or similar official) belowof Tenant or a Guarantor of any substantial part of Tenant’s or a Guarantor’s property, Tenant fails to cure or seeking the default on winding-up or before the date that liquidation of Tenant’s or a Guarantor’s affairs and such involuntary case or petition is 30 not dismissed within sixty (60) days after Landlord gives Tenant notice of default; providedthe filing thereof, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 days following Landlord’s notice) to cure the default or if Tenant begins or a Guarantor commences a voluntary case or institutes proceedings to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default;
(iv) If Tenant becomes be adjudicated as bankrupt or insolvent or consents to the entry of an order for relief under the federal bankruptcy laws as now or hereafter constituted, or any other applicable federal or state bankruptcy or insolvency or other similar law, or consents to the appointment of or taking possession by a receiver or liquidator or assignee, trustee, custodian, sequestrator (or other similar official) of Tenant or a Guarantor of any substantial part of Tenant’s or a Guarantor’s property, or if Tenant or any Guarantor makes a general any assignment for the benefit of creditors or offers a settlement admits in writing its inability to creditors, pay its debts generally as they become due or fails to generally pay its debts as they become due or if a petition Tenant is levied upon and is about to be sold out upon the Premises by any sheriff, xxxxxxxx or constable or Tenant or its stockholders or Board of Directors or any committee thereof takes any action in bankruptcy contemplation, preparation or furtherance of or for reorganization any of the foregoing, or, if Tenant or any Guarantor is a corporation and is dissolved or liquidated, Then, and in any such event, at the sole option of Landlord,
(i) The whole balance of rent and all other sums payable hereunder for an arrangement with creditors under any federal the entire balance of the term of this Lease, herein reserved or state law is filed agreed to be paid by or against Tenant, or any part of such rent, charges and other sums, shall be taken to be due and payable from Tenant and in arrears as if by the terms of this Lease said balance of rent, charges and other sums and expenses were on that date payable in advance; and/or
(ii) Landlord may terminate this Lease by written notice to Tenant. If Landlord elects to terminate this Lease, Landlord, in addition to Landlord’s other remedies, may recover from Tenant a bill in equity or judgment for damages equal to the sum of the following:
(A) the unpaid rent and other proceeding sums which became due up to the time of such termination plus interest from the dates such rent and other sums were due to the date of the judgment at the Lease Interest Rate; plus
(B) the present value at the time of judgment of the amount by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment exceeds the amount of loss of such rental and other sums Tenant proves could have been reasonably avoided; plus
(C) the amount (as discounted at the rate of four percent (4%) per annum) by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the appointment balance of a receiver the term after the date of judgment exceeds the amount of loss of such rental and other sums that Tenant proves could have been reasonably avoided; plus
(D) any other amount necessary to compensate Landlord for any of all the detriment proximately caused by Tenant’s assets is commenced, failure to perform its obligations under this Lease or if any of which in the real or personal Premises of Tenant shall ordinary course would be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant likely to this Section 22(a) is in lieu of any written notice required by any applicable Laws, result therefrom including, without limitation, any notice required under California Code the cost of Civil Procedure Section 1161repairing the Premises and reasonable attorneys fees; or,plus
(vE) If at Landlord’s election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable law. As used in the foregoing clause (B), the “present value at the time of judgment” shall be computed by adding to the rent past due or which would have become due interest at the Lease Interest Rate from the dates such rent was or would have become due to the date of the judgment; and/or
(iii) Landlord may terminate Tenant’s right of possession and may reenter and repossess the Premises by legal proceedings, force or otherwise, without terminating this Lease. After reentry or retaking or recovering of the Premises, whether by termination of this Lease or not, Landlord may, but shall be under no obligation to, make such alterations and repairs, as Landlord may deem then necessary or advisable 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 period which otherwise would 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 sole discretion may seem advisable and to such person or persons as may in Landlord’s sole discretion seem best; and whether or not the Premises are relet, Tenant abandons shall be liable for any loss, for such period as is or vacates would have been the Property balance of the term of this Lease, of rent and all other sums payable under this Lease, plus the cost and expenses of reletting and of redecorating, remodeling or making repairs and alterations to the Premises for the purpose or reletting, the amount of such liability to be computed monthly and to be paid by Tenant to Landlord from time to time upon demand. Landlord shall in no event be liable for, nor shall any damages or other sums to be paid by Tenant to Landlord be reduced by, failure to relet the Premises or failure to collect the rent or other sums from any reletting. Tenant shall not be entitled to any rents or other sums received by Landlord in excess of five (5) business days at a time, without making provisions those provided for securityin this Lease. Tenant waives agrees that Landlord may file suit to recover any right to notice Tenant may have rent and other sums falling due under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice Article from time to Tenant as required by said Section 1951.3.
(b) If an Event time and that no suit or recovery of Default occurs, in addition to all other rights and remedies available any amount due hereunder to Landlord at lawshall be any defense to any subsequent action brought for any other amount due hereunder to Landlord. Tenant, in equityfor Tenant and Tenant’s successors and assigns, by statute or otherwise, Landlord shall have the following rights hereby irrevocably constitutes and remedies:
(i) appoints Landlord, without any obligation Tenant’s and their agent to do so, may elect collect the rents due or 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 10% 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, by breaking open locked doors if necessary, and remove become due under all persons and all or any Premises, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) subleases of the Premises for Xxxxxxor any parts thereof without in any way affecting Tenant’s account. Xxxxxx agrees obligation to pay any unpaid balance of rent or any other sum due or to Landlord on demand become due hereunder. Notwithstanding any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Leasetermination, Landlord may at any time thereafter elect to terminate this Lease for such Tenant’s previous breach;
. Whenever Landlord shall have the right to reenter the Premises, it shall have the right to remove all persons and property from the Premises and either treat such property as abandoned or at Landlord’s option store it in a public warehouse or elsewhere at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. For the purposes of computing “the whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease,” “the unpaid rent and other sums which would have become due (iiihad this Lease not been terminated) after termination until the date of the judgment” and “the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment,” as such quoted or any similar phrases are used in this Article 21, the amounts of additional rents which would have been due per year under this Lease shall be such amounts as Landlord shall reasonably estimate to be the per annum rates of additional rent for the calendar year during which this Lease was terminated or during which rent was accelerated, increasing annually on the first day of each calendar year thereafter at the rate of seven percent (7%) per annum compounded. The parties recognize that no adequate remedy at law may exist for a breach of Articles 6, 7 and 10 hereof. Accordingly, Landlord may recover obtain specific performance of any provision of Articles 6, 7 and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or 10 hereof. Neither such right nor its exercise shall limit any other remedies which are likely in the ordinary course Landlord may have against Tenant for a breach of business to be incurredsuch Articles, including, without limitation, all damages remedies available under this Article 21. The reference herein to which Landlord is entitled to recover under specific performance in connection with Articles 6, 7 and 10 shall not preclude the availability of specific performance, in any and all Laws now appropriate case, for the breach or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment threatened breach of any sum due or by other performance provision of any conditionthis Lease. In addition to other remedies available to Landlord herein, term or covenant broken; and recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could Landlord may (but shall not be reasonably avoided, discounting the aggregate of such amounts obligated to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statutedo so), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate cure any default on behalf of Tenant’s right to possession, and Tenant shall reimburse Landlord may enforce upon demand for all of its rights and remedies under this Leasecosts incurred by Landlord in curing such default, including, without limitation, reasonable attorneys’ fees and other legal expenses, together with interest thereon at the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(c) Any provision to the contrary in this Section 22 notwithstandingInterest Rate, (i) Landlord shall not be required to give Tenant the notice which costs and opportunity to cure any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease interest thereon shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration against the other party arising out of or additional rent hereunder. As used in connection with this LeaseArticle 21, the prevailing party “term” shall be entitled to have and recover from include the other party its attorneys’ fees, costs Term of suit, expert and consulting fees incurred in such legal action, this Lease and any appealrenewals or extensions thereof to which Tenant shall have become bound.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
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 10 days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to 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 default on or before the date that is 30 10 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 10 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 30 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 10 days following Landlord’s notice and continues diligently in good faith to completely cure the default;; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill 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 real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 1015% 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, by breaking open locked doors if necessary, Premises and remove all persons and all or any Premisesproperty, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at XxxxxxxxLandlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. Notwithstanding any provision to the contrary contained herein, upon an Event of Default by Tenant and a subsequent eviction by Landlord, Landlord shall use commercially reasonable efforts to relet the Premises for a term or terms which may, at Landlord’s option, be less than or exceed the remaining Term hereof. Landlord does not necessarily agree to rent the Premises at its then fair market value if Landlord enters into a new lease agreement with respect to the Premises. The parties understand and agree that Landlord shall not be obligated to lease the Premises in any manner which is not in keeping with the type and caliber of tenants at the Building, nor shall Landlord be obligated to relet the Premises in preference to other vacant space in the Building;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable provided, however, that notwithstanding the foregoing or anything to the contrary contained elsewhere in the Lease, if Landlord may recover obtains a judgment in the amount of the whole or any and all damages directly caused by Xxxxxx’s failure part of the Rent for the balance of the Term, such judgment shall recite the full lump sum amount but Tenant shall only be obligated under such judgment to perform pay the amount of Rent reserved under this Lease at the times stipulated for payment of the same in the Lease, or which are likely in less the ordinary course amount of business to be incurredrental, includingif any, without limitation, all damages to which Landlord is entitled receives during such period from others to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).whom the Premises may be rented; and
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 13 and 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by XxxxxxTenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery costs, and any including costs of appeal.
(f) Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Samples: Lease Agreement (Jagged Peak, Inc.)
Defaults Remedies. (a) It shall be an “Event of Default” following the expiration of all applicable notice and cure periods set forth below:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c22(d) below, Tenant fails to cure such default on or before the date that is 5 five (5) business days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c22(d) below, Tenant fails to cure the default on or before the date that is 30 thirty (30) days after Landlord gives Tenant written notice of default; provided, however, if the default cannot reasonably be cured within 30 thirty (30) days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 ninety (90) days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 thirty (30) days following Landlord’s notice and continues diligently in good faith to completely cure the default;
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill 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 real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 sixty (60) consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 portion of the California Civil CodePremises for thirty (30) or more consecutive days, except in the terms event of casualty, condemnation, Force Majeure, or in connection with the performance of a permitted Alteration. Any notice periods provided for in this Section 22(a)(v) being deemed Lease shall run concurrently with any statutory notice periods and any notice sent hereunder may be sent simultaneously with or incorporated into any such notice to Tenant as required by said Section 1951.3statutory notice.
(b) If an Event of Default occurs, Landlord shall, at any time thereafter, with or without notice or demand and without limiting Landlord in addition to all the exercise of any other rights right or remedy which Landlord may have by reason of such default (with such remedies being cumulative and remedies available to Landlord at lawnot exclusive), in equity, by statute or otherwise, 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 ten percent (10% %) 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, re-enter and repossess the Premises, by breaking open locked doors if necessary, without terminating this Lease, and remove all persons and all or any property from the Premises, by action at law or otherwiselaw, without being liable for prosecution or damages, in which case Landlord shall be entitled to enforce all of Landlord’s rights and remedies under this Lease, including the right to recover the Rent and all other amounts due hereunder as they become due. Landlord may, at XxxxxxxxLandlord’s option, make Alterations alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all reasonable costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. No re-entry or taking possession of the Premises by Landlord pursuant to this Section 22(b)(ii) or other action on Landlord’s part shall be construed as an election to terminate this Lease unless a written notice of such intention is sent to Tenant or unless the termination hereof is decreed by a court of competent jurisdiction. Landlord’s election not to terminate this Lease pursuant to this Section 22(b)(ii) or pursuant to any other provision of this Lease shall not preclude Landlord from subsequently electing to terminate this Lease or pursuing any of its other remedies;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term as provided in Section 22(b)(iv) below, along with all sums past due, and declare the same to be immediately due and payable. In determining the amount of any future payments due Landlord as a result of increases in Annual Operating Expenses, Landlord may recover any and all damages directly caused make such determination based upon the amount of Annual Operating Expenses paid by Xxxxxx’s failure Tenant for the full year immediately prior to perform under this Lease, or which are likely in the ordinary course such Event of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).Default;
(iv) To terminate this Lease and the Term by any lawful means 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, in which case Tenant shall promptly surrender possession of the Premises to Landlord. In such event, Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant’s Event of Default including, but not limited to, the cost of recovering possession of the Premises; expenses of re-letting, including necessary renovation and recover as damages alteration of the worthPremises, reasonable attorneys’ fees, and any real estate commission actually paid; the “worth at the time of any award, ” established by the court having jurisdiction thereof of the amount by which the unpaid Rent rent and other charges due for the balance of the Term after the time of the award Tenant’s default exceeds the amount of the such rental loss for the same period that the Tenant proves by clear and convincing evidence could be have been reasonably avoided; and that portion of any leasing commission paid by Landlord, discounting if any, applicable to the aggregate unexpired Term of such amounts this Lease (which shall be calculated based on the assumption that any leasing commission applicable to present value the Term would have been evenly and equally amortized in monthly payments over the number of months contained in the Term at one an interest rate of seven percent (17%) more than per annum). For purposes of this Section 22(b)(iv), “worth at the discount rate time of award” of the Federal Reserve Bank in San Francisco in effect amount referred to above shall be computed by discounting each amount by a rate equal to the Prime Rate at the time of the award.
award plus three percent (v) In accordance with California Civil Code Section 1951.4 (or any successor statute3%), Tenant acknowledges that but in no event more than an annual rate of ten percent (10%). As used herein, the “Prime Rate” means the then current prime rate published in the event Tenant breaches this Lease and abandons Wall Street Journal provided, however, if the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, Wall Street Journal no longer publishes a prime rate then the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant Prime Rate shall be an equivalent rate established by a waiver of any subsequent breach, nor shall any forbearance financial institution or financial publication designated by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.;
Appears in 1 contract
Samples: Lease Agreement (Ocugen, 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 days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to 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 default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 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 insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill 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 real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 10% thereofthe Administrative Fee) 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, by breaking open locked doors if necessary, Premises and remove all persons and all or any Premisesproperty, by action at law or otherwiselaw, without being liable for prosecution or damages. Landlord may, at XxxxxxxxLandlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover After a further 10 day prior written notice to Tenant of Landlord’s intent to exercise its rights pursuant to this Section 22(b)(iii), unless such Event of Default is cured within said 10 day period, to accelerate the whole or any part of the Rent for the balance of the Term, and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in declare the ordinary course of business same to be incurredimmediately due and payable, includingdiscounted to present value at the rate equal to the annual yield on 30 day United States Treasury bills at the time of acceleration (provided, without limitationhowever, all damages to which Landlord is entitled to recover under there shall not be any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2discounting for any then current arrearage).;
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.and
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergencyIntentionally Deleted.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Samples: Lease Agreement
Defaults Remedies. If any of the following shall occur:
(a) It Any payment or any part thereof to be made by Tenant to Landlord pursuant to the terms of this Lease shall be an Event have become overdue for a period in excess of Default:thirty (30) days, such grace period limited to no more than two (2) occurrences in any twelve (12) month period;
(ib) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant violates or fails to cure perform or comply with any covenant, agreement or condition herein contained, and such default on or before the date that is 5 failure continues for a period of thirty (30) days after Landlord gives notifies Tenant written notice of defaultsuch failure;
(iic) If Tenant enters into abandons the Premises or permits any Transfer removes or attempts to remove Tenant's property therefrom other than in violation the ordinary course of Section 18 above;business without having first paid to Landlord in full all rent and charges that may have become due as well as all which will become due thereafter; or
(iiid) If An involuntary case under the federal bankruptcy law as now or hereafter constituted is commenced against Tenant fails to observe and perform or otherwise breaches any guarantor or surety of Tenant's obligations under this Lease ("Guarantor"), or under any other provision applicable federal or state bankruptcy, insolvency, reorganization, or other similar law, or there is filed against Tenant or a Guarantor a petition seeking the appointment of this Leasea receiver, andliquidator or assignee, except as provided in Section 22(ccustodian, trustee, sequestrator (or similar official) belowof Tenant or a Guarantor of any substantial part of Tenant's or a Guarantor's property, Tenant fails to cure or seeking the default on winding-up or before the date that liquidation of Tenant's or a Guarantor's affairs and such involuntary case or petition is 30 not dismissed within sixty (60) days after Landlord gives Tenant notice the filing thereof, of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 days following Landlord’s notice) to cure the default if Tenant begins or a Guarantor commences a voluntary case or institutes proceedings to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default;
(iv) If Tenant becomes be adjudicated as bankrupt or insolvent or consents to the entry of an order for relief under the federal bankruptcy laws as now or hereafter constituted, or any other applicable federal or state bankruptcy or insolvency or other similar law, or consents to the appointment of or taking possession by a receiver or liquidator or assignee, trustee, custodian, sequestrator (or other similar official) of Tenant or a Guarantor of any substantial part of Tenant's or a Guarantor's property, or if Tenant or any Guarantor makes a general any assignment for the benefit of creditors or offers a settlement admits in writing its inability to creditors, pay its debts generally as they become due or fails to generally pay its debts as they become due or if a petition Tenant is levied upon and is about to be sold out upon the Premises by any sheriff, xxxxxxxx or constable or it Tenant or its stockholders or Board of Directors or any committee thereof takes any action in bankruptcy contemplation, preparation or furtherance of or for reorganization any of the foregoing, or, if Tenant or any Guarantor is a corporation and is dissolved or liquidated. Then, and in any such event, at the sole option of Landlord,
(i) The then present value of the whole balance of rent and all other sums payable hereunder for an arrangement with creditors under any federal the entire balance of the term of this Lease, herein reserved or state law is filed agreed to be paid by or against Tenant, or any part of such rent, charges and other sums, shall be taken to be due and payable from Tenant and in arrears as if by the terms of this Lease said balance of rent, charges and other sums and expenses were on that date payable in advance; and/or
(ii) Landlord may terminate this Lease by written notice to Tenant. If Landlord elects to terminate this Lease, Landlord, in addition to landlord's other remedies, may recover from Tenant a bill in equity or judgment for damages equal to the sum of the following:
(A) the unpaid rent and other proceeding sums which became due up to the time of such termination plus interest from the dates such rent and other sums were due to the date of the judgment at the Lease Interest Rate; plus
(B) the present value at the time of judgment of the amount by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment exceeds the amount of loss of such rental and other sums Tenant proves could have been reasonably avoided; plus
(C) the amount (as discounted at the rate of four percent (4%) per annum) by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the appointment of a receiver for any of Tenant’s assets is commenced, or if any balance of the real term after the date of judgment exceeds the amount of loss of such rental and other sums that Tenant proves could have been reasonably avoided; plus
(D) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or personal Premises of Tenant shall which in the ordinary course would be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant likely to this Section 22(a) is in lieu of any written notice required by any applicable Laws, result therefrom including, without limitation, any notice required under California Code the cost of Civil Procedure Section 1161repairing the Premises and reasonable attorneys fees; or,plus
(vE) If at Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable law. As used in the foregoing clause (B), the "present value at the time of judgment" shall be computed by adding to the rent past due or which would have become due interest at the Lease Interest Rate from the dates such rent was or would have become due to the date of the judgment; and/or
(iii) Landlord may terminate Tenant's right of possession and may reenter and repossess the Premises by legal proceedings without terminating this Lease. After reentry or retaking or recovering of the Premises, whether by termination of this Lease or not, Landlord may, but shall be under no obligation to, make such alterations and repairs, as Landlord may deem then necessary or advisable 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 period which otherwise would 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 sole discretion may seem advisable and to such person or persons as may in Landlord's sole discretion seem best; and whether or not the Premises are relet, Tenant abandons shall be liable for any loss, for such period as is or vacates would have been the Property balance of the term of the Lease, of rent and all other sums payable under this lease, plus the cost and expenses of reletting and of redecorating, remodeling or making repairs and alterations to the Premises for the purpose or reletting, the amount of such liability to be computed monthly and to be paid by Tenant to Landlord from time to time upon demand. Landlord shall in no event be liable for, nor shall any damages or other sums to be paid by Tenant to Landlord be reduced by, failure to relet the Premises or failure to collect the rent or other sums from any reletting. Tenant shall not be entitled to any rents or other sums received by Landlord in excess of five (5) business days at a time, without making provisions those provided for securityin this Lease. Tenant waives agrees that Landlord may file suit to recover any right to notice Tenant may have rent and other sums falling due under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice Article from time to Tenant as required by said Section 1951.3.
(b) If an Event time and that no suit or recovery of Default occurs, in addition to all other rights and remedies available any amount due hereunder to Landlord at lawshall be any defense to any subsequent action brought for any other amount due hereunder to Landlord. Tenant, in equityfor Tenant and Tenant's successors and assigns, by statute or otherwise, Landlord shall have the following rights hereby irrevocably constitutes and remedies:
(i) appoints Landlord, without any obligation Tenant's and their agent to do so, may elect collect the rents due or 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 10% 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, by breaking open locked doors if necessary, and remove become due under all persons and all or any Premises, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) subleases of the Premises for Xxxxxx’s account. Xxxxxx agrees or any parts thereof without in any way affecting Tenant's obligation to pay any unpaid balance of rent or any other sum due or to Landlord on demand become due hereunder. Notwithstanding any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Leasetermination, Landlord may at any time thereafter elect to terminate this Lease for such Tenant's previous breach;
. Whenever Landlord shall have the right to reenter the Premises, it shall have the right to remove all persons and property from the Premises and either treat such property as abandoned or at Landlord's option store it in a public warehouse or elsewhere at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. Tenant waives the right to any notice to remove as may be specified in the Landlord and Tenant Act of Pennsylvania, Act of April 6, 1951, as amended, or any similar or successor provision of law. For the purposes of computing "the then present value of the whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease," "the unpaid rent and other sums which would have become due (iiihad this Lease not been terminated) after termination until the date of the judgment" and "the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment," as such quoted or any similar phrases are used in this Article 21, the amounts of additional rents which would have been due per year under this Lease shall be such amounts as Landlord shall reasonably estimate to be the per annum rates of additional rent for the calendar year during which this Lease was terminated or during which rent was accelerated, increasing annually on the first day of each calendar year thereafter at the rate of seven percent per annum compounded. The parties recognize that no adequate remedy at law may exist for a breach of Articles 6, 7 and 10 hereof. Accordingly, Landlord may recover obtain specific performance of any provision of Articles 6, 7 and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or 10 hereof. Neither such right nor its exercise shall limit any other remedies which are likely in the ordinary course Landlord may have against Tenant for a breach of business to be incurredsuch Articles, including, without limitation, all damages remedies available under this Article 21. The reference herein to which Landlord is entitled to recover under specific performance in connection with Articles 6, 7 and 10 shall not preclude the availability of specific performance, in any and all Laws now appropriate case, for the breach or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment threatened breach of any sum due or by other performance provision of any conditionthis Lease. In addition to other remedies available to Landlord herein, term or covenant broken; and recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could Landlord may (but shall not be reasonably avoided, discounting the aggregate of such amounts obligated to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statutedo so), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate cure any default on behalf of Tenant’s right to possession, and Tenant shall reimburse Landlord may enforce upon demand for all of its rights and remedies under this Leasecosts incurred by Landlord in curing such default, including, without limitation, reasonable attorneys' fees and other legal expenses, together with interest thereon at the right to recover Rent as it becomes due under this LeaseLease Interest Rate, which costs and interest thereon shall be deemed additional rent hereunder. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(c) Any provision to the contrary Also in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure any monetary default provided in Section 22(a) above more than three times in any consecutive 12-month periodaddition to, and thereafter Landlord may declare an Event not in lieu of Default without affording Tenant any of the notice and cure foregoing rights provided under this Lease, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice granted to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.:
Appears in 1 contract
Samples: Lease Agreement (Traffic.com, Inc.)
Defaults Remedies. (a) It shall be an “Event of Default”:
(i) If Tenant does not fails to pay (i) any applicable quarterly installment of the Minimum Annual Base Rent 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 days after Landlord gives Tenant written notice of default;due hereunder and such failure continues for five
(ii) If Tenant enters into an agreement to Transfer or permits any Transfer in violation of Section 18 above;
(iii) If Tenant or Subtenant (or any occupant claiming through either) takes any action or performs any work or Alterations at the Premises which results in an HTC Event;
(iv) If Tenant fails to observe and perform or otherwise breaches any other material provision of this Lease, and, except as provided in Section 22(c) below, Master Lease and Tenant fails to cure the default on or before the date that is 30 forty-five (45) days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 forty-five (45) days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 forty-five (45) days following Landlord’s notice and continues diligently in good faith to completely cure the default;; or
(ivv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill 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 real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or against Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 ninety (90) consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, Landlord shall have be able to exercise the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default Event of Default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred actually paid by Landlord (together with an administrative fee of 10% thereof) in curing the defaultEvent of 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 Additional Rent;
(ii) To enter and repossess the Premises, by breaking open locked doors if necessary, and remove all persons institute any and all or any Premises, proceedings permitted by action at law or otherwiseequity including, without being liable for prosecution or damages. Landlord maybut not limited to, at Xxxxxxxx’s option, make Alterations and repairs in order an action to relet the Premises and relet all or any part(s) of the Premises for Xxxxxx’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination enjoin a violation of this Lease, Landlord may at any time thereafter elect Master Lease by Tenant or to compel specific performance of this Master Lease by Tenant or to terminate this Master Lease for such previous breach(subject to the terms of any SNDA and the rights of the City and the other parties thereunder);
(iii) Landlord may recover any seek and all damages directly caused by Xxxxxx’s failure obtain injunctive and other equitable relief from an appropriate court to perform under compel Tenant to comply with or refrain from or cease from breaching or violating the terms, covenants and conditions of this Master Lease, or which are likely in the ordinary course of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).;
(iv) To terminate require that Tenant pay all reasonable costs, charges and expenses incurred in enforcing the Tenant’s obligations under 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 brokenMaster Lease; and recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.or
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in TBD: as an assignee of the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possessionrights under the Sublease, and Landlord may enforce all of its exercise any rights and remedies granted to Tenant under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possessionSublease.
(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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies under this Lease with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 equityherein. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Master Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(fd) Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Master Lease.
(e) Any provisions of this Lease to the contrary notwithstanding, under no circumstances shall Landlord’s remedies hereunder include the right to terminate the Sublease; it being agreed that any termination shall be controlled by and subject to the terms, and provisions of the omnibus SNDA.
Appears in 1 contract
Samples: Master Tenant Lease Agreement
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent andwithin 5 days after Landlord gives Tenant notice that such Rent was not paid when due, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to 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 default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 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;
(iviii) If Tenant becomes insolvent or bankrupt in any sense or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill 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 real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,.
(viv) If an event of default occurs under the City/Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3Financing.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 10% thereof) in curing the default, plus interest thereon 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, by breaking open locked doors if necessary, Premises and remove all persons and all or any Premisesproperty, by action at law or otherwisein accordance with applicable Laws, without being liable for prosecution or damages. , and Landlord may, at XxxxxxxxLandlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;.
(iii) Landlord may recover any and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in the ordinary course of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).
(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; .
(iv) If Landlord obtains a final and recover as damages unappealable judicial determination that Tenant is in default in the worth, at payment of Monthly Rent for a total of six (6) months or more (taking into account the time expiration of any awardapplicable cure period without Tenant having effected a cure), and if Tenant shall not have cured such delinquency within thirty (30) days after the entry of such judgment (or, if later, the amount date on which it becomes final), then Landlord shall have the further right to require Tenant, by which the unpaid giving written notice to Tenant, to pay all Rent for during the balance of the Term in semi-annual (as opposed to monthly) payments, each payable in advance, without Landlord’s being required to obtain separate judgments for any other default in the payment of Rent. Landlord agrees to credit against any such payments (or if collected during any period for which Tenant shall have made such advance payment of Monthly Rent, Landlord shall pay to Tenant within twenty (20) days after receipt thereof) actually made by Tenant the time rentals actually received by Landlord on account of any reletting of the award exceeds the amount Premises by Landlord, net of the rental loss that reasonable costs of reletting and preparing the Tenant proves could be reasonably avoided, discounting premises for the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the awardreplacement tenant.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches When this Lease and abandons the Term or any extension thereof shall have been terminated on account of any Event of Default by Tenant, or when the Term or any extension thereof shall have expired, Tenant hereby authorizes any attorney of any court of record of the Commonwealth of Pennsylvania to appear for Tenant and for anyone claiming by, through or under Tenant and to confess judgment against all such parties, and in favor of Landlord, in ejectment and for the recovery of possession of the Premises, for which this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, or a true and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant correct copy hereof shall be a 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 rights good and remedies with respect to such or any subsequent breachsufficient warrant. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.AFTER THE ENTRY OF ANY SUCH JUDGMENT A WRIT OF POSSESSION MAY BE
Appears in 1 contract
Samples: Office and Industrial Lease Agreement (WuXi PharmaTech (Cayman) 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 ten (10) days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, and Tenant fails to cure the default on or before the date that is 30 thirty (30) days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 thirty (30) days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 sixty (60) days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 thirty (30) days following Landlord’s notice and continues diligently in good faith to completely cure the default;; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill 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 real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 sixty (60) consecutive days. Any notice given pursuant to periods provided for in this Section 22(a) is in lieu of Lease shall run concurrently with any written statutory notice required by any applicable Laws, including, without limitation, periods and any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons given hereunder may be given simultaneously with or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives incorporated into any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3statutory notice.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 reasonable sums paid or reasonable attorneys’ fees and reasonable costs incurred by Landlord (together with an administrative fee of 1012% 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 lawfully enter and repossess the Premises, Premises by breaking open locked doors if necessaryjudicial process, and remove all persons and all or any Premisesproperty, by action at law law, using self-help without an action at law, or otherwise, without being liable for prosecution or damages. Landlord may, at XxxxxxxxLandlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover Subject to Section 22 (c) below, to accelerate the whole or any part of the Rent for the balance of the Term, and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in declare the ordinary course of business same to be incurredimmediately due and payable after discounting the same to present worth, including, without limitation, all damages to against which Landlord is Tenant shall be entitled to recover under any and all Laws now or hereafter a credit equal to the present worth of such rental loss, if any, that Tenant affirmatively approves could reasonably be avoided by Landlord (with “present worth” being computed using a discount rate equal to one percentage point above the discount rate then in effect (including, without limitation, California Civil Code Section 1951.2at the Federal Reserve Bank nearest to the location of the Building).; and
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(vc) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as If Landlord does not terminate terminates Tenant’s right of possession (but not this Lease), Landlord shall use commercially reasonable efforts to possessionrelet the Premises for the account of Tenant for such rent and upon such terms as shall be satisfactory to Landlord without thereby releasing Tenant from any liability hereunder and without demand or notice of any kind to Tenant; provided, and however (i) Landlord may enforce shall not be obligated to accept any prospective tenant proposed by Tenant, unless such proposed tenant meets all of its rights Landlord’s standard leasing criteria and remedies under this Lease, including, without limitation, (ii) Landlord shall have the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of lease any other space controlled by Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possessionfirst.
(cd) 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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 20, or 27 or in an emergency.
(de) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by XxxxxxTenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(ef) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery and other litigation costs, and any including costs of appeal.
(fg) Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Defaults Remedies. (a) It A. The occurrence of any one or more of the following events shall be an Event constitute a default and breach of Defaultthis lease by Tenant:
(i1) If Tenant does not Failure to pay in full rent when due any and all Rent anddue, except as provided in Section 22(cif the failure continues for five (5) below, Tenant fails to cure such default on or before the date that is 5 days after Landlord gives Tenant written notice of defaulthas been given to Tenant;
(ii2) If Tenant enters into or permits any Transfer in violation Abandonment of Section 18 abovethe premises (failure to occupy and operate the premises for twelve (12) hours shall be deemed an abandonment);
(iii3) If The failure by Tenant fails to observe and or perform any of the covenants, conditions or otherwise breaches any other provision provisions of this Leaselease to be observed or performed by Tenant, andother than described in paragraph (1) above, except as provided in Section 22(cwhere such failure shall continue for a period of thirty (30) below, Tenant fails to cure the default on or before the date that is 30 days after receipt of written notice thereof from Landlord gives Tenant notice of defaultto Tenant; provided, however, that if the nature of Tenant's default cannot is such that more than thirty (30) days are reasonably be cured within 30 days following Landlord’s giving of noticerequired for its cure, then Tenant shall not be afforded additional reasonable time (not deemed to exceed 60 days following Landlord’s notice) to cure the be in default if Tenant begins commences such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the defaultcompletion;
(iv4) If The filing of execution or occurrence of:
(a) a petition in bankruptcy by or against the Tenant, unless cured or removed within sixty (60) days;
(b) a petition or answer by Xxxxxx seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution or other relief of the same or different kind under any provision of the Bankruptcy Act;
(c) adjudication of Tenant becomes insolvent as a bankrupt or makes a general insolvent;
(d) an assignment of all or substantially all of Tenant's assets for the benefit of creditors or offers a settlement to creditors, or if ;
(e) a petition in bankruptcy or for reorganization other proceeding, except by Landlord, its agents or for an arrangement with creditors under any federal or state law is filed affiliates, by or against Tenant, for, or the appointment of, a bill trustee, receiver, or liquidator of Tenant with respect to all or substantially all of its property; provided, however, that Tenant shall not be in equity default if Tenant cures or removes such a petition or proceeding within sixty (60) days;
(f) a petition or other proceeding by or against Tenant for the appointment of a receiver for any of Tenant’s assets is commencedits dissolution or liquidation, or the taking of possession of the property of Tenant by any governmental authority in connection with dissolution or liquidation, provided, however, that Tenant shall not be in default if Tenant cures or removes such a petition or proceeding within sixty (60) days;
(g) the taking by any person, except by Landlord or its agents or affiliates, of the leasehold created hereby or any part thereof upon execution, or other process of law or equity.
(5) Notwithstanding any other provisions of this lease, the failure by Tenant to comply with any of the real provisions of the lease, if such failure (in the reasonable and good faith judgment of Landlord) places in imminent jeopardy the continued licensing of the premises as a skilled nursing facility and/or its certification as either a MediCal or personal Premises Medicare provider and if, within twenty-four (24) hours after written notice thereof from Landlord to Tenant, Tenant shall not have either 1) cured such failure, or 2) obtained an injunction or other order preventing revocation or suspension of licensing and/or decertification of the premises by virtue of such failure or alleged failure, or 3) provided Landlord with other reasonable assurances that the premises will not be subject to license suspension or revocation and/or decertification as a result of such failure or alleged failure.
(6) Notices given under this paragraph 16 shall specify the alleged default and the applicable lease provisions, and shall demand that Tenant perform the provisions of this lease or pay the rent that is in arrears, as the case may be, within the applicable period of time, or quit the premises. No such notice shall be deemed a forfeiture or a termination of this lease unless Landlord so elects in the notice.
B. Landlord shall have the following remedies without further notice to Tenant if Xxxxxx commits a default. These remedies are not exclusive; they are cumulative in addition to any remedies now or later allowed by law:
(1) Landlord can continue this lease in full force and effect, and the lease will continue in effect as long as Landlord does not terminate Tenant's right to possession, and Landlord shall have the right to collect rent when due. During the period Tenant is in default, Landlord can enter the premises and relet them, or any part of them, to third parties for Xxxxxx's account. Tenant shall be levied upon; provided that any proceeding brought by anyone other than liable immediately to Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is all costs Landlord incurs in lieu of any written notice required by any applicable Lawsreletting the premises, including, without limitation, brokers' commissions, expenses of remodeling the premises required by the reletting, and like costs. Reletting can be for a period shorter or longer than the remaining term of this lease. Tenant shall pay to Landlord the rent due under this lease on the dates the rent is due, less the rent Landlord receives from any notice required under California Code of Civil Procedure Section 1161; or,reletting. No act by Landlord allowed by this paragraph shall terminate this lease unless Landlord notifies Tenant that Landlord elects to terminate this lease.
(v2) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any Landlord can terminate Tenant's right to notice Tenant may have under Section 1951.3 possession of the California Civil Code, the terms of this Section 22(a)(v) being deemed such premises at any time. No act by Landlord other than giving notice to Tenant as required by said Section 1951.3.
(b) If an Event shall terminate this lease. Acts of Default occursmaintenance, in addition efforts to all other rights and remedies available relet the premises, or the appointment of a receiver on Landlord's initiative to Landlord at law, in equity, by statute or otherwiseprotect Xxxxxxxx's interest under this lease shall not constitute a termination of Tenant's right to possession. On termination, Landlord shall have has the following rights and remediesright to recover from Tenant:
(ia) 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 10% 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, by breaking open locked doors if necessary, and remove all persons and all or any Premises, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Xxxxxx’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover any and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in the ordinary course of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).
(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 recover as damages the The worth, at the time of any awardthe award of the unpaid rent that had been earned at the time of termination of this lease;
(b) The worth, at the time of the award of the amount by which the unpaid Rent for rent that would have been earned after the balance date of the Term after termination of this lease until the time of the award exceeds the amount of the rental loss of rent that Xxxxxx proves could have been reasonably avoided;
(c) The worth, at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of the loss of rent that Tenant proves could be have been reasonably avoided; and
(d) Any other amount, and court costs, necessary to compensate Landlord for all detriment proximately caused by Xxxxxx's default. "The worth, at the time of the award," as used in (a) and (b) of this subparagraph B(2) is to be computed by allowing interest at the rate of 10% per annum. "The worth, at the time of the award," as referred to in (c) of this subparagraph B(2) is to be computed by discounting the aggregate of such amounts to present value amount at one percent (1%) more than the discount rate of the Federal Reserve Bank in of San Francisco in effect at the time of the award, plus 1%.
(v3) In accordance with California Civil Code Section 1951.4 (or any successor statute), If Tenant acknowledges that is in the event Tenant breaches default of this Lease and abandons the Premises, this Lease lease Landlord shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, have the right to recover Rent as it becomes due under this Leasehave a receiver appointed to collect rent and conduct Xxxxxx's business. Acts Neither the filing of maintenance or preservation or efforts to re-let the Premises or a petition for the appointment of a receiver upon initiative of nor the appointment itself shall constitute an election by Landlord to protect Landlord’s interests under terminate this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergencylease.
(d4) No waiver Landlord, at any time after Tenant commits a default, can cure the default at Tenant's cost. If Landlord at any time, by reason of Tenant's default, pays any sum or does any act that requires the payment of any sum, the sum paid by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by due immediately from Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord at the time the sum is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfactionpaid, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.if repaid at
Appears in 1 contract
Samples: Assignment and Assumption of Lease Agreement (Sycamore Park Convalescent Hospital)
Defaults Remedies. If any of the following shall occur (each an “Event of Default”):
(a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all installments of rent (whether Fixed Rent andor additional rent) or any other charge or payment whether or not herein included as rent, except as provided in Section 22(cand such failure to pay continues for ten (10) below, Tenant fails to cure such default on or before the date that is 5 days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails the failure from Landlord to observe and perform or otherwise breaches any other provision of this LeaseTenant, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, in no event shall Landlord be required to give such a notice concerning the same type of recurring installment or payment more than twice in any calendar year;
(b) Tenant violates or fails to perform or comply with any covenant, agreement or condition herein contained and such violation or failure continues for thirty (30) days after written notice of the violation or failure from Landlord to Tenant, or if the default required cure for the violation or failure cannot reasonably be cured completed within 30 days following Landlord’s giving of noticethirty (30) days, if Tenant shall be afforded additional reasonable time (not fails to exceed 60 days following Landlord’s notice) commence to cure the default if Tenant begins failure within thirty (30) days and/or fails to diligently and continuously attempt to complete the cure the default within 30 days following Landlord’s notice and continues diligently as soon as reasonably possible thereafter provided, however, in good faith to completely cure the defaultno event shall such initial thirty (30) day period be extended more than an additional thirty (30) days;
(ivc) If An involuntary case under the federal bankruptcy law as now or hereafter constituted is commenced against Tenant, or under any other applicable federal or state bankruptcy, insolvency, reorganization, or other similar law, or there is filed against Tenant becomes a petition seeking the appointment of a receiver, liquidator or assignee, custodian, trustee, sequestrator (or similar official) of Tenant of any substantial part of Tenant’s property, or seeking the winding-up or liquidation of Tenant’s affairs and such involuntary case or petition is not dismissed within sixty (60) days after the filing thereof, of if Tenant commences a voluntary case or institutes proceedings to be adjudicated as bankrupt or insolvent or consents to the entry of an order for relief under the federal bankruptcy laws as now or hereafter constituted, or any other applicable federal or state bankruptcy or insolvency or other similar law, or consents to the appointment of or taking possession by a receiver or liquidator or assignee, trustee, custodian, sequestrator (or other similar official) of Tenant of any substantial part of Tenant’s property, or if Tenant makes a general any assignment for the benefit of creditors or offers a settlement admits in writing its inability to creditors, pay its debts generally as they become due or fails to generally pay its debts as they become due or if a petition Tenant is levied upon and is about to be sold out upon the Building by any sheriff, xxxxxxxx or constable or Tenant or its stockholders or Board of Directors or any committee thereof takes any action in bankruptcy contemplation, preparation or furtherance of or for reorganization any of the foregoing, or, if Tenant is a corporation and is dissolved or liquidated, Then, and upon the occurrence of an Event of Default, at the sole option of Landlord,
(i) The whole balance of rent and all other sums payable hereunder for an arrangement with creditors under any federal the entire balance of the Term but accelerated and thus due and payable only on a biennial basis, herein reserved or state law is filed agreed to be paid by or against Tenant, or any part of such rent, charges and other sums, shall be taken to be due and payable from Tenant and in arrears as if by the terms of this Lease said balance of rent, charges and other sums and expenses were on that date payable in advance but net of all rent actually received by Tenant from a bill reletting, if any; and/or
(ii) Landlord may terminate this Lease by written notice to Tenant. If Landlord elects to terminate this Lease, Landlord, in equity or addition to Landlord’s other proceeding remedies, may recover from Tenant a judgment for damages equal to the sum of the following:
(A) the unpaid rent and other sums which became due up to the time of such termination plus interest from the dates such rent and other sums were due to the date of the judgment at the Lease Interest Rate; provided, however, Landlord may only accelerate unpaid rent for each biennial period as it occurs during the remaining Term of the Lease; plus
(B) the present value at the time of judgment of the amount by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment exceeds the amount of loss of such rental and other sums Tenant proves could have been reasonably avoided; plus
(C) the amount (as discounted at the rate of four percent (4%) per annum) by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the appointment balance of a receiver the term after the date of judgment exceeds the amount of loss of such rental and other sums that Tenant proves could have been reasonably avoided; plus
(D) any other amount necessary to compensate Landlord for any of all the detriment proximately caused by Tenant’s assets is commenced, failure to perform its obligations under this Lease or if any of which in the real or personal Premises of Tenant shall ordinary course would be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant likely to this Section 22(a) is in lieu of any written notice required by any applicable Laws, result therefrom including, without limitation, any notice required under California Code the cost of Civil Procedure Section 1161repairing the Building and reasonable attorneys fees; or,plus
(vE) If at Landlord’s election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable law. As used in the foregoing clause (B), the “present value at the time of judgment” shall be computed by adding to the rent past due or which would have become due interest at the Lease Interest Rate from the dates such rent was or would have become due to the date of the judgment; and/or
(iii) Landlord may terminate Tenant’s right of possession and may reenter and repossess the Building by legal proceedings, force or otherwise, without terminating this Lease. After reentry or retaking or recovering of the Building, whether by termination of this Lease or not, Landlord may, but shall be under no obligation to, make such alterations and repairs, as Landlord may deem then necessary or advisable and relet the Building 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 otherwise would 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 sole discretion may seem advisable and to such person or persons as may in Landlord’s sole discretion seem best; and whether or not the Building is relet, Tenant abandons shall be liable for any loss, for such period as is or vacates would have been the Property balance of the term of the Lease, of rent and all other sums payable under this lease, plus the cost and expenses of reletting and of redecorating, remodeling or making repairs and alterations to the Building for the purpose or reletting, the amount of such liability to be computed monthly and to be paid by Tenant to Landlord from time to time upon demand. However, Landlord shall utilize commercially reasonable efforts to mitigate its damages upon the occurrence of an Event of Default. Tenant shall not be entitled to any rents or other sums received by Landlord in excess of five (5) business days at a time, without making provisions those provided for securityin this Lease. Tenant waives agrees that Landlord may file suit to recover any right to notice Tenant may have rent and other sums falling due under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice Article from time to Tenant as required by said Section 1951.3.
(b) If an Event time and that no suit or recovery of Default occurs, in addition to all other rights and remedies available any amount due hereunder to Landlord at lawshall be any defense to any subsequent action brought for any other amount due hereunder to Landlord. Tenant, in equityfor Tenant and Tenant’s successors and assigns, by statute or otherwise, Landlord shall have the following rights hereby irrevocably constitutes and remedies:
(i) appoints Landlord, Tenant’s and their agent to collect the rents due or to become due under all subleases of the Building or any parts thereof without in any way affecting Tenant’s obligation to do so, may elect to cure the default on behalf pay any unpaid balance 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 10% 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, by breaking open locked doors if necessary, and remove all persons and all rent or any Premises, by action at law other sum due or otherwise, without being liable for prosecution or damagesto become due hereunder. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or Notwithstanding any part(s) of the Premises for Xxxxxx’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Leasetermination, Landlord may at any time thereafter elect to terminate this Lease for such Tenant’s previous breach;
. Whenever Landlord shall have the right to reenter the Building, it shall have the right to remove all persons and property from the Building and either treat such property as abandoned or at Landlord’s option store it in a public warehouse or elsewhere at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. However Landlord hereby expressly agrees to subordinate in favor of a lender of Tenant any statutory and/or contractual lien it may have or seek to claim against Tenant’s personal property located at the Building except for the subordinated security interest in the Devon Square FF&E (iiias hereinafter defined). Attached hereto as Exhibit “I” is the form of Landlord’s Subordination and Consent (the “Landlord Consent”) which Landlord shall execute and deliver to Tenant upon request in favor of a lender of Tenant. Landlord agrees to reasonably consider modifications to the Landlord Consent requested by or on behalf of a secured party. Tenant waives the right to any notice to remove as may be specified in the Landlord and Tenant Act of Pennsylvania, Act of April 6, 1951, as amended, or any similar or successor provision of law. For the purposes of computing “the whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease,” “the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment” and “the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment,” as such quoted or any similar phrases are used in this Article 21, the amounts of additional rents which would have been due per year under this Lease shall be such amounts as Landlord shall reasonably estimate to be the per annum rates of additional rent for the calendar year during which this Lease was terminated or during which rent was accelerated, increasing annually on the first day of each calendar year thereafter at the rate of four percent (4%) per annum compounded. The parties recognize that no adequate remedy at law may exist for a breach of Articles 6, 7 and 10 hereof. Accordingly, Landlord may recover obtain specific performance of any provision of Articles 6, 7 and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or 10 hereof. Neither such right nor its exercise shall limit any other remedies which are likely in the ordinary course Landlord may have against Tenant for a breach of business to be incurredsuch Articles, including, without limitation, all damages remedies available under this Article 21. The reference herein to which Landlord is entitled to recover under specific performance in connection with Articles 6, 7 and 10 shall not preclude the availability of specific performance, in any and all Laws now appropriate case, for the breach or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment threatened breach of any sum due or by other performance provision of any conditionthis Lease. In addition to other remedies available to Landlord herein, term or covenant broken; and recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could Landlord may (but shall not be reasonably avoided, discounting the aggregate of such amounts obligated to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statutedo so), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate cure any default on behalf of Tenant’s right to possession, and Tenant shall reimburse Landlord may enforce upon demand for all of its rights and remedies under this Leasecosts incurred by Landlord in curing such default, including, without limitation, reasonable attorneys’ fees and other legal expenses, together with interest thereon at the right to recover Rent as it becomes due under this LeaseLease Interest Rate, which costs and interest thereon shall be deemed additional rent hereunder. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(c) Any provision to the contrary Also in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure any monetary default provided in Section 22(a) above more than three times in any consecutive 12-month periodaddition to, and thereafter Landlord may declare an Event not in lieu of Default without affording Tenant any of the notice and cure foregoing rights provided under this Lease, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice granted to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.:
Appears in 1 contract
Samples: Lease Agreement (MEDecision, Inc.)
Defaults Remedies. (a) It shall be an “Event of Default” if:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, and Tenant fails to cure such default on or before the date that is 5 failure within 10 days after Landlord gives Tenant of receipt of written notice thereof from Landlord (provided, however, that Landlord shall not be obligated to provide any such notice to Tenant more than 1 time during any 12 month period, and should Tenant fail to pay in full when due any and all Rent within 12 months of default;Tenant’s receipt of any such notice from Landlord, such failure shall constitute an automatic Event of Default).
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;.
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, and Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of default; , provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 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;default (not to exceed 60 days following Lxxxxxxx’s original notice).
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal Premises property of Tenant shall be levied upon; , provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 10% 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, by breaking open locked doors if necessary, and remove all persons and all or any Premises, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Xxxxxx’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover any and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in the ordinary course of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Samples: Lease Agreement (Savara 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 days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to 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 default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 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 insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill 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 real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 10% thereofthe Administrative Fee) 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, by breaking open locked doors if necessary, Premises and remove all persons and all or any Premisesproperty, by action at law or otherwiselaw, without being liable for prosecution or damages. Landlord may, at XxxxxxxxLandlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover After a further 10 day prior written notice to Tenant of Landlord’s intent to exercise its rights pursuant to this Section 22(b)(iii), unless such Event of Default is cured within said 10 day period, to accelerate the whole or any part of the Rent for the balance of the Term, and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in declare the ordinary course of business same to be incurredimmediately due and payable, includingdiscounted to present value at the rate equal to the annual yield on 30 day United States Treasury bills at the time of acceleration (provided, without limitationhowever, all damages to which Landlord is entitled to recover under there shall not be any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2discounting for any then current arrearage).;
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.and
(v) In accordance with California Civil Code Section 1951.4 Intentionally Deleted.
(or any successor statutevi) AFTER AN EVENT OF DEFAULT OR THE EXPIRATION OF THE TERM, AND AFTER A FURTHER 5 DAY PRIOR WRITTEN NOTICE TO TENANT OF LANDLORD’S INTENT TO EXERCISE ITS RIGHT PURSUANT TO THIS SECTION 22(b)(vi), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the PremisesFOR THE PURPOSE OF OBTAINING POSSESSION OF THE PREMISES, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possessionTENANT HEREBY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, and Landlord may enforce all of its rights and remedies under this LeaseAS ATTORNEY FOR TENANT AND ALL PERSONS CLAIMING UNDER OR THROUGH TENANT, includingTO APPEAR FOR AND CONFESS JUDGMENT AGAINST TENANT FOR POSSESSION OF THE PREMISES, without limitationAND AGAINST ALL PERSONS CLAIMING UNDER OR THROUGH TENANT, the right to recover Rent as it becomes due under this LeaseIN FAVOR OF LANDLORD, FOR RECOVERY BY LANDLORD OF POSSESSION THEREOF, FOR WHICH THIS AGREEMENT OR A COPY HEREOF VERIFIED BY AFFIDAVIT, SHALL BE A SUFFICIENT WARRANT; AND THEREUPON A WRIT OF POSSESSION MAY IMMEDIATELY ISSUE FOR POSSESSION OF THE PREMISES, WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER AND WITHOUT ANY STAY OF EXECUTION. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possessionIF FOR ANY REASON AFTER SUCH ACTION HAS BEEN COMMENCED THE SAME SHALL BE TERMINATED AND THE POSSESSION OF THE PREMISES REMAINS IN OR IS RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT UPON ANY SUBSEQUENT DEFAULT TO CONFESS JUDGMENT IN ONE OR MORE FURTHER ACTIONS IN THE MANNER AND FORM SET FORTH ABOVE TO RECOVER POSSESSION OF SAID PREMISES FOR SUCH SUBSEQUENT DEFAULT. TENANT WAIVES ALL ERRORS IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT. NO SUCH TERMINATION OF THIS LEASE, NOR TAKING, NOR RECOVERING POSSESSION OF THE PREMISES SHALL DEPRIVE LANDLORD OF ANY REMEDIES OR ACTION AGAINST TENANT FOR RENT OR FOR DAMAGES DUE OR TO BECOME DUE FOR THE BREACH OF ANY CONDITION OR COVENANT HEREIN CONTAINED, NOR SHALL THE BRINGING OF ANY SUCH ACTION FOR RENT, OR BREACH OF COVENANT OR CONDITION NOR THE RESORT TO ANY OTHER REMEDY HEREIN PROVIDED FOR THE RECOVERY OF RENT OR DAMAGES FOR SUCH BREACH BE CONSTRUED AS A WAIVER OF THE RIGHT TO INSIST UPON THE FORFEITURE AND TO OBTAIN POSSESSION IN THE MANNER HEREIN PROVIDED.
(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 any monetary default provided in Section 22(a) above more than three times 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 LeaseLease (except as otherwise expressly provided herein), and (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 Sections 13, 20 13 or 27 or in an emergency, and (iii) if Tenant fails to comply with the provisions of Section 20, and Tenant fails to cure such failure within 5 days following receipt of notice of such failure from Landlord, it shall be an Event of Default.
(d) No waiver by Landlord or Tenant of any breach by Tenant the other party shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord or Tenant to seek a remedy for any breach by Tenant the other party be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by XxxxxxTenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord or Tenant is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its reasonable attorneys’ fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery costs, and any including costs of appeal.
(f) Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
(g) Landlord shall use commercially reasonable efforts to mitigate Landlord’s damages under the Lease due to a default by Tenant; provided, however, that Landlord shall be under no duty to relet the Premises prior to leasing other available space in the Building and, so long as Landlord uses commercially reasonable efforts as required by this Section 22(g), in no event shall Landlord be responsible or liable for any failure to relet the Premises or any part thereof, or for any failure to collect any rent due upon a reletting. In the event Landlord shall recover the accelerated rent from Tenant as set forth in Section 22(b)(iii) above, and it shall be determined at the expiration of the Term (taken without regard to early termination for default) that a credit is due Tenant because the net proceeds of reletting, as aforesaid, plus the amounts paid to Landlord by Tenant exceed the aggregate of Rent and other charges accrued in favor of Landlord to the end of said term, Landlord shall refund such excess to Tenant, without interest, promptly after such determination.
Appears in 1 contract
Samples: Lease Agreement (Neuronetics, Inc.)
Defaults Remedies. (a) It The following events shall be an Event of Defaultconsidered to constitute a default under this lease:
(i) If Tenant does not pay default in full the payment of any Rent, or any other sum or charge due to Landlord, or any other party, under this lease within ten (10) days of when due any and all Rent anddue, except as provided in Section 22(c) below, Tenant fails after notice to cure such default on or before the date that is 5 days after Landlord gives Tenant written notice of defaultTenant;
(ii) If default in the full, faithful and punctual performance of any other covenant, agreement, or provision in excess of thirty (30) days after notice, or after such performance is otherwise required under the provisions of this lease, provided that Tenant enters into or permits any Transfer in violation of Section 18 aboveshall have such additional time as is reasonably required if such default cannot be cured with thirty (30) days;
(iii) If making an assignment for the benefit of creditors, filing a voluntary petition in bankruptcy, being adjudicated a bankrupt by any court, taking the benefit or any bankruptcy or insolvency statute, being dissolved, or if a receiver or trustee of Tenant fails to 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 default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant and/or its property shall be afforded additional reasonable time (not to exceed 60 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 defaultappointed;
(iv) If causing any interest of Tenant becomes insolvent in this lease to pass to any other party other than Tenant, except as is otherwise provided for or makes a general assignment permitted by this Lease, without the written consent of Landlord, or to any trustees or receiver or assignee for the benefit of creditors or offers a settlement to creditors, by operation of law or if a petition otherwise; In the event of any such default enumerated in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal Premises of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a18.1, Tenant shall, upon demand, forthwith pay Landlord all Rent and other sums then due Landlord under this lease within ten (10) is in lieu days of any receipt of written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions demand for securitycure. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwiseIn addition, Landlord shall have the following rights right, at its option, without any further demand or notice, to reenter the Demised Premises, and remediesvacate all occupants there from, remove the property of Tenant and any other Occupant, and store all such property in a public warehouse or elsewhere at the cost, and for the account of Tenant or any other Occupant, and either:
(ia) Landlord, without any obligation declare the Term to do so, may elect be at an end on a day designated by Landlord (which shall be not less than five (5) days after notice to cure the default on behalf Tenant of Tenant, such declaration) in which event the Term shall expire on the day so designated and Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 10% thereof) in curing immediately pay Landlord, as liquidated damages, a sum equal to the defaultamount, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costsif any, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises, by breaking open locked doors if necessary, and remove all persons and all or any Premises, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Xxxxxx’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover any and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in the ordinary course of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid then cash value of the total Rent and other charges that Tenant would have been required to pay under the provisions of this lease for the period which otherwise would have been the balance of the Term after Term, exceeds the time then cash value of the award exceeds the amount fair and reasonable rental value of the rental loss that Demised Premises for the Tenant proves could same period; or
(b) without declaring the Term to be reasonably avoidedat an end, discounting relet the aggregate Demised Premises, or any part thereof, as the agent and for the account of Tenant, upon such amounts to present value at one percent terms and conditions as landlord may deem advisable. In such event the rents (1%and other money) more than received from such re-letting, less all costs including the discount rate cost of necessary renovations of the Federal Reserve Bank in San Francisco in effect at Demised Premises, reasonable attorney's fees and disbursements, and any real estate commissions actually paid, shall be applied toward the time Rent and all costs, charges, and expenses due to Landlord hereunder. If a sufficient sum shall not be thus realized to pay the total of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute)all amounts due, Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as pay Landlord does not terminate Tenant’s right to possessionany deficiency monthly, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent bring action(s) therefore as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease such monthly deficiencies shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergencyarise.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
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 days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to 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 default on or before the date that is 30 20 days after Landlord gives Tenant written notice of default; provided, however, if the default cannot reasonably be cured within 30 20 days following Landlord’s giving of written notice, Tenant shall be afforded additional reasonable time (not to exceed 60 75 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 20 days following Landlord’s written notice and continues diligently in good faith to completely cure the default;; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill bxxx in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 90 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 reasonable, out-of-pocket costs incurred by Landlord (together with an administrative fee of 1015% 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, by breaking open locked doors if necessary, and remove all persons and all or any Premisesproperty, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at XxxxxxxxLandlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all reasonable costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. Landlord shall use commercially reasonable efforts to relet the Premises or any part thereof, alone or together with other premises, for such term or terms (which may include concessions or free rent and alterations to the Premises) as Landlord may determine, in its sole discretion, but Landlord shall not be liable for, nor shall Tenant’s obligations hereunder be diminished by reason of, any failure by Landlord to relet the Premises or any failure by Landlord to collect any rent due upon such reletting and Landlord shall not be required to re-let the Premises in preference to other space that it may have vacant;
(iii) Landlord may recover To accelerate the whole or any part of the Rent for the balance of the Term, and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in declare the ordinary course of business same to be incurredimmediately due and payable (such accelerated Rent amount shall be discounted using a discount factor equal to the yield of the Treasury Note or Bxxx, includingas appropriate, without limitation, all damages having a maturity period approximately commensurate to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2the remainder of the Term).; and
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 18 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by XxxxxxTenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its reasonable attorneys’ fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery costs, and any including costs of appeal.
(f) Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Samples: Lease Agreement (Sourcefire Inc)
Defaults Remedies. (a) It The following shall be an Event deemed to be “Events of Default” under this Agreement:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant Tasty fails to cure such default on or before the date that is 5 make any payment due under this Agreement within five (5) business days after Landlord gives Tenant written of its receipt of notice of defaultthereof from Liberty;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant Tasty fails to perform or observe and perform or otherwise breaches any other provision obligation under this Agreement within ten (10) business days of this Leaseits receipt of notice thereof from Liberty, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 ten (10) business days following Landlord’s giving of Liberty's notice, Tenant Tasty shall be afforded additional reasonable time to cure the default (not to exceed 60 days following Landlord’s noticean additional one hundred Eighty (180) to cure the default days) if Tenant Tasty begins to cure the default within 30 ten (10) business days following Landlord’s Liberty's notice and continues diligently in good faith to completely cure the default;
(iii) The occurrence of any other event identified as an Event of Default under this Agreement;
(iv) If Tenant Tasty becomes insolvent or bankrupt in any sense or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against TenantTasty, or a bill in equity or other proceeding for the appointment of a receiver for any of Tenant’s Tasty's assets is commenced, or if any of the real or rexx xr personal Premises property of Tenant Tasty shall be levied uponupon in connection with such insolvency or bankruptcy proceeding; provided that any proceeding brought by anyone other than Landlord Liberty or Tenant Tasty under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 sixty (60) consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,;
(v) If Tenant abandons Tasty enters in to or vacates permits a Transfer in violation of Paragraph 10 below; or
(vi) The occurrence of an Event of Default under the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3Lease.
(b) If an Event of Default occursoccurs under this Agreement, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, Landlord Liberty shall have the following rights and remedies:
(i) Landlordto accelerate the whole or any part of the Monthly Payment Amounts due for the balance of the Term of this Agreement, without any obligation and declare the same 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 10% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums be immediately due and costs together with interest at the Interest Rate shall be deemed additional Rentpayable;
(ii) To enter and repossess draw upon the PremisesLC, by breaking open locked doors if necessary, and remove all persons and all in whole or any Premises, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Xxxxxx’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breachpart;
(iii) Landlord may recover To exercise any and all damages directly caused by Xxxxxx’s failure to perform under this Leaseother rights available at law or in equity. IN ADDITION TO THE RIGHTS AND REMEDIES PROVIDED ABOVE, or which are likely in the ordinary course of business to be incurredIF AN EVENT OF DEFAULT OCCURS RELATING TO TASTY’S NON-PAYMENT OF ANY AMOUNT DUE HEREUNDER, includingTASTY HEREBY AUTHORIZES ANY ATTORNEY OF ANY COURT OF RECORD OF THE COMMONWEALTH OF PENNSYLVANIA TO APPEAR FOR TASTY AND TO CONFESS JUDGMENT AGAINST TASTY, without limitationAND IN FAVOR OF LIBERTY, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (includingFOR ALL RENT DUE HEREUNDER PLUS COSTS AND AN ATTORNEY'S COLLECTION COMMISSION EQUAL TO THE GREATER OF 10% OF ALL AMOUNTS DUE HEREUNDER OR $1,000, without limitationFOR WHICH THIS AGREEMENT OR A TRUE AND CORRECT COPY HEREOF SHALL BE GOOD AND SUFFICIENT WARRANT. TASTY UNDERSTANDS THAT THE FOREGOING PERMITS LIBERTY TO ENTER A JUDGMENT AGAINST TASTY WITHOUT PRIOR NOTICE OR HEARING. ONCE SUCH A JUDGMENT HAS BEEN ENTERED AGAINST TASTY, California Civil Code Section 1951.2)ONE OR MORE WRITS OF EXECUTION OR WRITS OF GARNISHMENT MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO TASTY AND WITHOUT A HEARING, AND, PURSUANT TO SUCH WRITS, LIBERTY MAY CAUSE THE SHERIFF OF THE COUNTY IN WHICH ANY PROPERTY OF TASTY IS LOCATED TO SEIZE TASTY'S PROPERTY BY LEVY OR ATTACHMENT. IF THE JUDGMENT AGAINST TASTY REMAINS UNPAID AFTER SUCH LEVY OR ATTACHMENT, LIBERTY CAN CAUSE SUCH PROPERTY TO BE SOLD BY THE SHERIFF EXECUTING THE WRITS, OR, IF SUCH PROPERTY CONSISTS OF A DEBT OWED TO TASTY BY ANOTHER ENTITY, LIBERTY CAN CAUSE SUCH DEBT TO BE PAID DIRECTLY TO LIBERTY IN AN AMOUNT UP TO BUT NOT TO EXCEED THE AMOUNT OF THE JUDGMENT OBTAINED BY LIBERTY AGAINST TASTY, PLUS THE COSTS OF THE EXECUTION. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS ANY OF THE SUMS DUE HEREUNDER SHALL FALL DUE OR BE IN ARREARS, AND SUCH POWERS MAY BE EXERCISED AS WELL AFTER THE EXPIRATION OF THE TERM OF THIS AGREEMENT. THE WARRANT TO CONFESS JUDGMENT SET FORTH ABOVE SHALL CONTINUE IN FULL FORCE AND EFFECT AND BE UNAFFECTED BY AMENDMENTS TO THIS AGREEMENT OR OTHER AGREEMENTS BETWEEN LIBERTY AND TASTY EVEN IF ANY SUCH AMENDMENTS OR OTHER AGREEMENTS INCREASE TASTY'S OBLIGATIONS. TASTY WAIVES ANY PROCEDURAL ERRORS IN CONNECTION WITH THE ENTRY OF ANY SUCH JUDGMENT OR IN THE ISSUANCE OF ANY ONE OR MORE WRITS OF EXECUTION OR GARNISHMENT THEREON. TASTY KNOWINGLY AND EXPRESSLY WAIVES ANY RIGHT WHICH TASTY MAY HAVE TO NOTICE AND TO HEARING PRIOR TO A LEVY UPON OR ATTACHMENT OF TASTY'S PROPERTY OR THEREAFTER.
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(c) Any provision to the contrary in this Section 22 6 notwithstanding, (i) Landlord Liberty shall not be required to give Tenant Tasty the notice and opportunity to cure any monetary default provided in Section 22(aSubsection 6(a)(i) above more than three times twice in any consecutive 12-month period, and thereafter Landlord Liberty may declare an Event of Default without affording Tenant Tasty any of the notice and cure rights provided under this LeaseAgreement, and (ii) Landlord Liberty shall not be required to give such notice prior to exercising its rights under Section 22(bSubsection 6(a)(ii) if Tenant Tasty fails to comply with the provisions of Sections 13, 20 5 or 27 10 or in an emergency. Notwithstanding the foregoing, Liberty shall provide Tasty with additional written notice at least thirty (30) days prior to exercising any confession of judgment against Tasty pursuant to Section 6; provided, however, that if Liberty elects to confess judgment without first accelerating the Monthly Payment Amounts, thereby requiring multiple confessions of judgment as Monthly Payment Amounts accrue, a single notice of such election delivered to Tasty at least thirty (30) days prior to the first such exercise of the confession of judgment shall suffice, and no further notices shall be required for subsequent confessions of judgment for Rent and attorney fees.
(d) No waiver by Landlord Liberty of any breach by Tenant Tasty shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord Liberty to seek a remedy for any breach by Tenant Tasty be a waiver by Landlord Liberty of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord Liberty to mitigate the damages caused by Xxxxxx’s Tasty's default shall not constitute a waiver of Landlord’s Liberty's right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord Liberty is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant Tasty or receipt or acceptance by Landlord Liberty of a lesser amount than the total amount due Landlord Liberty under this Lease Agreement shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord Liberty may accept such check or payment without prejudice to Landlord’s Liberty's right to recover the balance of Rent all amounts due, or Landlord’s Liberty's right to pursue any other available remedy.
(ei) Tasty shall pay upon demand all costs and expenses, including the reasonable fees and out-of-pocket expenses of counsel, agents and others retained by Liberty, incurred in enforcing Tasty's obligations hereunder or incurred by Liberty in any litigation, negotiation or transaction in which Tasty causes Liberty to become involved.
(ii) If either party commences an action or commences arbitration against the other party arising out of or in connection with this LeaseAgreement, the prevailing party shall be entitled to have and recover from the other losing party its reasonable attorneys’ ' fees, costs of suit, expert investigation expenses and consulting discovery costs, including costs of appeal.
(iii) Liberty shall pay upon demand all costs and expenses, including the reasonable fees and out-of-pocket expenses of counsel, agents and others retained by Tasty, incurred in such legal actionenforcing Liberty’s obligations hereunder or incurred by Tasty in any litigation, negotiation or transaction in which Liberty causes Tasty to become involved.
(iv) Notwithstanding the foregoing, each of Liberty and any appealTasty shall pay the fees of its own counsel in negotiating this Agreement.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related toTASTY HEREBY AGREES TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COMMONWEALTH OF PENNSYLVANIA, the subject matter of this LeaseAND TASTY AGREES THAT ALL SERVICE OF PROCESS MAY BE MADE BY CERTIFIED MAIL DIRECTED TO TASTY, TO THE ATTENTION OF TASTY’S GENERAL COUNSEL, AT TASTY'S ADDRESS SET FORTH BELOW, AND SERVICE SO MADE WILL BE DEEMED TO BE COMPLETED, PROVIDED THAT NOTHING CONTAINED HEREIN WILL PREVENT LIBERTY FROM BRINGING ANY ACTION OR EXERCISING ANY RIGHTS AGAINST ANY SECURITY OR AGAINST TASTY INDIVIDUALLY, OR AGAINST ANY PROPERTY OF TASTY WITHIN ANY OTHER STATE OR NATION TO ENFORCE ANY AWARD OR JUDGMENT OBTAINED IN THE VENUE PROVIDED ABOVE. TASTY WAIVES ANY OBJECTION TO VENUE AND ANY OBJECTION BASED ON A MORE CONVENIENT FORUM IN ANY ACTION INSTITUTED HEREIN, PURSUANT TO THE PROVISIONS HEREOF.
Appears in 1 contract
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(cwithin five (5) below, Tenant fails to cure such default on or before the date that is 5 days after Landlord gives Tenant written notice (which notice may be in the form of default;a monthly payment letter).
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to 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 default on or before the date that is 30 10 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 10 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 30 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 10 days following Landlord’s notice and continues diligently in good faith to completely cure the default;; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill 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 real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 1015% 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, by breaking open locked doors if necessary, and remove all persons and all or any Premisesproperty, solely by action at law or otherwiselaw, without being liable for prosecution or damages. Landlord may, at XxxxxxxxLandlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover To accelerate the whole or any part of the Rent for the balance of the Term, and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in declare the ordinary course of business same to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any immediately due and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).payable; and
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergency.
(d) . No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by XxxxxxTenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) . If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery costs, and any including costs of appeal.
(f) . Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease. ln the event of a Tenant Default and Tenant’s subsequent vacating of the Premises, Landlord shall use commercially reasonably efforts to mitigate its damages in connection therewith.
Appears in 1 contract
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 days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to 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 default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of written notice, Tenant shall be afforded additional reasonable time (not to exceed 60 30 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s written notice and continues diligently in good faith to completely cure the default;; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill bxxx in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 10% 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, by breaking open locked doors if necessary, and remove all persons and all or any Premisesproperty, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at XxxxxxxxLandlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover To accelerate the whole or any part of the Rent for the balance of the Term, and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in declare the ordinary course of business same to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any immediately due and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).payable; and
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the awardLease.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by XxxxxxTenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its reasonable attorneys’ fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery costs, and any including costs of appeal.
(f) Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease, and agree that any trial shall be a bench trial.
Appears in 1 contract
Samples: Lease Agreement (Uroplasty 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 five (5) days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to comply with the provisions of Sections 13, 20 or 27 and Tenant fails to cure such default on or before the date that is five (5) business days after Landlord gives Tenant notice of default; provided, however, that Landlord shall not be required to give Tenant such notice and opportunity to cure to the extent Tenant fails to deliver the Security Deposit in accordance with the provisions of the first (1st) sentence of Section 27;
(iv) If Tenant fails to 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 default on or before the date that is 30 thirty (30) days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 thirty (30) days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 thirty (30) days following Landlord’s notice and continues diligently in good faith to completely cure the default;; or
(ivv) If Tenant or Guarantor becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against TenantTenant or Guarantor, or a bill xxxx in equity or other proceeding for the appointment of a receiver for any of Tenant’s or Guarantor’s assets is commenced, or if any of the real or personal Premises property of Tenant or Guarantor shall be levied uponupon in connection therewith; provided that any proceeding brought by anyone other than Landlord Landlord, Tenant or Tenant Guarantor under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 sixty (60) consecutive days. Any written notice given pursuant to this Section 22(a) is set forth herein shall be in lieu of any written notice required by any applicable Lawsof, including, without limitationand not in addition to, any notice required under California Code of Civil Procedure Section Sections 1161; or,
(v) If Tenant abandons , et seq. and all similar or vacates the Property successor laws. The notice periods provided herein are in excess of five (5) business days at a timelieu of, without making provisions for security. Tenant waives and not in addition to, any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required periods provided by said Section 1951.3law.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 10% thereofthe Administrative Fee) 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) Intentionally Omitted;
(iii) To enter and repossess terminate this Lease, in which event Tenant shall immediately surrender the Premises, by breaking open locked doors if necessaryPremises to Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any other remedy which it may have for possession or arrearages in Rent, enter upon and take possession of the Premises and expel or remove all persons Tenant and all any other person who may be occupying the Premises or any Premises, part thereof by action at law or otherwiseany lawful means, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations any claim for damages therefor; and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Xxxxxx’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover any and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in from Tenant the ordinary course of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect following: (including, without limitation, California Civil Code Section 1951.2).
(iva) 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 recover as damages the worth, worth at the time of award of any award, unpaid Rent which has been earned at the time of such termination; plus (b) the worth at the time of award of the amount by which the unpaid Rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus (c) the worth at the time of award of the amount by which the unpaid Rent for the balance of the Lease Term after the time of the award exceeds the amount of the such rental loss that the Tenant proves could be have been reasonably avoided; plus (d) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, specifically including but not limited to, brokerage commissions and advertising expenses incurred, expenses of remodeling the Premises or any portion thereof for a new tenant, whether for the same or a different use, and any special concessions made to obtain a new tenant; and (e) at Landlord’s election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable Law; provided, however, that Landlord may not terminate this Lease unless, after the occurrence of the Event of Default, Landlord delivers to Tenant notice of Landlord’s intent to so terminate (which notice shall be in addition to any notice required under Section 22(a) above). As used in Sections 22(b)(iii)(a) and (b), above, the “worth at the time of award” shall be computed by allowing interest at the Interest Rate. As used in Section 22(b)(iii)(c), above, the “worth at the time of award” shall be computed by discounting the aggregate of such amounts to present value amount at one percent (1%) more than the discount rate of the Federal Reserve Bank in of San Francisco in effect at the time of the award.award plus one percent (1%); and
(viv) In accordance with Landlord shall have the remedy described in California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall lessor may continue lease in effect for so long after lessee’s breach and abandonment and recover rent as it becomes due, if lessee has the right to sublet or assign, subject only to reasonable limitations). Accordingly, if Landlord does not elect to terminate this Lease on account of any Event of Default by Tenant’s right , Landlord may, from time to possessiontime, and Landlord may without terminating this Lease, enforce all of its rights and remedies under this Lease, including, without limitation, including the right to recover all Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possessiondue.
(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 any monetary default provided in Section 22(a22(a)(i) or Section 22(a)(iv) above (with respect to the same default thereunder) more than three times twice in any consecutive twelve (12-) month period, and thereafter thereafter, during the remainder of such twelve (12) month period, Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by XxxxxxTenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery costs, and any including costs of appeal.
(f) To the extent permitted by applicable Laws, Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Samples: Lease Agreement (QuantumScape Corp)
Defaults Remedies. 25.1. Each of the following events shall be a “Default” under this Lease:
(a) It Tenant fails to pay any amount of Fixed Rent, when the same shall be due and such failure shall continue for ten (10) calendar days after written notice from Landlord to Tenant;
(b) Tenant fails to pay any amount of Additional Rent when the same shall be due, and such failure shall continue for ten (10) calendar days after written notice from Landlord to Tenant;
(c) Tenant fails to keep or perform any other covenant or provision of this Lease, and such failure continues for thirty (30) days after written notice from Landlord, unless such failure requires work to be performed, acts to be done, or conditions to be remedied which cannot be performed, done or remedied within such thirty (30) days, in which case the Default shall not be deemed to exist as long as Tenant duly commences and diligently and continuously prosecutes to completion all steps necessary to cure and remedy the same;
(d) Tenant admits, in writing, that Tenant is unable to pay Tenant’s debts as such become due;
(e) Tenant makes an Event assignment for the benefit of Defaultcreditors;
(f) Tenant files a voluntary petition in bankruptcy or Tenant files any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future Legal Requirements, or Tenant seeks or consents to or acquiesces in the appointment of any trustee, receiver or liquidator of Tenant or of the Premises (or, Tenant’s interest therein) or of all or any substantial part of Tenant’s property; and
(g) if, within sixty (60) days after the commencement of any proceeding against Tenant seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future Legal Requirements, such proceeding is not dismissed; or if, within sixty (60) days after the appointment (without the consent or acquiescence of Tenant) of any trustee, receiver or liquidator of Tenant or of all or any substantial part of Tenant’s property or of the Premises (or Tenant’s interest therein), such appointment is not vacated or stayed on appeal or otherwise.
25.2. If and whenever any Default occurs, Landlord may give written notice to Tenant (the “Termination Notice”) stating that this Lease and the Term shall expire and terminate on the date specified in such Termination Notice (which date shall be not earlier than five (5) days after the giving of the Termination Notice). In such event, this Lease and the Term (and Tenant’s entire right, title, and interest therein) shall expire and terminate as if the date specified in the Termination Notice were the Expiration Date; and Tenant shall quit and surrender the Premises but shall remain liable as hereinafter provided. Notwithstanding the foregoing provisions of this Section 25.2, Landlord will not be required to give any notice of default and no cure period shall be applicable to the failure of Tenant to observe or perform any of its agreements or obligations hereunder that are of the type (i.e., failure to pay timely the Fixed Rent) of an agreement or obligation of which, within the immediately preceding one hundred twenty (120) day period Tenant has committed two or more defaults hereunder, and about which Landlord has transmitted to Tenant two or more default notices.
25.3. If and whenever any Default occurs, or if this Lease and the Term terminate under Section 25.2, Landlord may without notice re-enter and repossess the Premises; and Tenant shall remain liable as hereinafter provided. If Landlord so re-enters, at its option, Landlord may:
(a) complete Landlord’s Work to the extent not then completed;
(b) repair and alter the Premises in such manner as Landlord may deem necessary or desirable without relieving Tenant of any liability whatsoever under this Lease; and
(c) let or relet the Premises (or any parts thereof) for the whole or any part of the remainder of the Term, or for a longer period, in Landlord’s name or as agent of Tenant, and pay and apply all rents and other sums thus collected or received as follows:
(i) If Tenant does not pay first, to all reasonable costs and expenses which Landlord pays or incurs in full when due any terminating this Lease, re-entering, retaking, repossessing, repairing and/or altering the Premises, and peaceably removing all Rent andPersons and property therefrom, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 days after Landlord gives Tenant written notice of defaultincluding all Fees-And-Costs;
(ii) If Tenant enters into or permits second, to all reasonable costs and expenses which Landlord incurs in securing any Transfer in violation new tenant(s) of Section 18 above;the Premises (including such costs brokerage commissions and reasonable expenses of preparing the Premises for re-letting, and all Fees-And-Costs; and, if Landlord maintains the Premises, all reasonable costs and expenses of maintaining the Premises, including utilities); and
(iii) If Tenant fails to observe and perform or otherwise breaches third, any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default balance then remaining on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 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;
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill in equity or other proceeding for the appointment of a receiver for any account of Tenant’s assets is commenced, or if any of the real or personal Premises of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available liability to Landlord at lawunder this Lease. In no case shall re-entry by Landlord, in equity, by statute whether under summary proceedings or otherwise, absolve or discharge Tenant from any liability whatsoever under this Lease. Landlord shall have the following rights and remedies:
(i) Landlord, without any no 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 10% 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, by breaking open locked doors if necessary, and remove all persons and all or any Premises, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order whatsoever to relet the Premises and relet all (or any part(s) of the Premises for Xxxxxx’s account. Xxxxxx agrees parts thereof), or to pay to Landlord collect any rent or other sums due on demand any deficiency (taking into account all costs incurred by such re-letting; and Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover any and all damages directly caused by Xxxxxx’s failure to perform relet or to collect Rent shall not relieve Tenant of any liability whatsoever under this Lease, or which are likely in the ordinary course of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Samples: Lease Agreement (Antares Pharma Inc)
Defaults Remedies. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Tenant:
(a) It The vacating or abandonment of the Premises by Tenant for more than sixty (60) days.
(b) The failure by Tenant to make any payment of rent or any other payment required to be made by Tenant hereunder, as and when due.
(c) 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 described in Paragraph 22(b) hereinabove, where such failure shall be an Event continue for a period of Defaultten (10) days after written notice thereof from Landlord to Tenant; provided, however, that if the nature of the Tenant's default if Tenant commences such cure within said ten (10) 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 of petition to have Tenant adjudged a bankrupt or a petition for reorganization or arrangement 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 the Tenant's assets located in the Premises or the Tenant's interest in this Lease where possession is not restored to Tenant within thirty (30) days or the attachment, execution or other judicial seizure of substantially all of Tenant's assets located at the Premises or Tenant's interest in this Lease, where 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 right or remedy which Landlord may have by reason of such default or breach, proceed in the following manner:
(i) If Terminate Tenant's right to possession of the Premises by any lawful means, in which case Tenant's possession shall be terminated and Tenant does not pay in full when shall immediately surrender possession of the Premises to the Landlord. In such event, Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant's default, including necessary renovation or alteration of the Premises; reasonable attorney's fees; any real estate commission actually paid; that portion of the Lease and commission paid by Landlord pursuant to Agency agreement hereinafter stated applicable to the unexpired term of this Lease; and such other out-of-pocket expenses as the Landlord might incur. Unpaid installments of rent or other sums shall bear interest from date due any and all Rent andat the rate of twelve percent (12%) per annum, except as provided in Section 22(c) below, Tenant fails after the Tenant's right to cure such default on or before the date that is 5 days after Landlord gives Tenant written notice of default;possession has been terminated.
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to 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 default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 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;
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Maintain Tenant, or a bill in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal Premises of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any 's right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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, possession in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 10% 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, by breaking open locked doors if necessary, and remove all persons and all or any Premises, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Xxxxxx’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover any and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in the ordinary course of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, case this Lease shall continue in effect for so long as whether or not Tenant shall have abandoned the Premises. In such event, Landlord does not terminate Tenant’s right shall be entitled to possession, and Landlord may enforce all of its Landlord's rights and remedies under this Lease, including, without limitation, including the right to recover Rent the rent as it becomes due hereunder.
(iii) Pursue any other remedy now or hereafter available to Landlord under this Lease. Acts the laws or jurisdictional decisions of maintenance or preservation or efforts to re-let the state in which the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possessionis located.
(c) Any provision to the contrary in this Section 22 notwithstanding, (iiv) Landlord shall not be in default unless Landlord fails to perform obligations required of landlord within a reasonable time, but in no event, sooner than ten (10) days after written notice by Tenant to give Tenant Landlord specifying wherein Landlord has failed to perform such obligations; provided, however, that if the notice and opportunity to cure any monetary default provided in Section 22(a) above nature of the Landlord's obligations such that more than three times in any consecutive 12-month periodten (10) days is required for performance, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) then Landlord shall not be required in default if Landlord commences performance within such ten (10) days and thereafter diligently prosecutes the same to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Sections 13, 20 or 27 or in an emergencycompletion.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
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 days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to 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 default on or before the date that is 30 days after Landlord gives Tenant notice of such default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 90 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 insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill 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 real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights occurs and remedies available to Landlord at law, in equity, by statute or otherwiseis continuing, 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 reasonably incurred by Landlord (together with an administrative fee of 10% thereofthe Administrative Fee) in curing the default, plus interest at the Interest Rate from the respective dates date of Landlord’s incurring such costsdemand for reimbursements, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To the extent permitted by law, to enter and repossess the Premises, by breaking open locked doors if necessary, and remove all persons and all or any Premisesproperty, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at XxxxxxxxLandlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover To accelerate the whole or any part of the Rent for the balance of the then-current Term, discounted to present value at the rate equal to the 10 year United States Treasury Note, at the time of acceleration and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in declare the ordinary course of business same to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any immediately due and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).payable; and
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a22(a)(i) above more than three times twice in any consecutive 12-month period, and thereafter during such consecutive 12-month period, Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Leaseset forth in Section 22(a)(i), and (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 Sections Section 13, and (iii) if Tenant fails to comply with the provisions of Sections 20 or 27 or and Tenant fails to cure the default within five (5) days following Landlord’s giving of notice, it shall be an Event of Default and Landlord shall have the rights provided in an emergencySection 22(b) above.
(d) No waiver by Landlord a party of any breach by Tenant the other party shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord a party to seek a remedy for any breach by Tenant the other party be a waiver by Landlord a party of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by XxxxxxTenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord a party is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery costs, and any including costs of appeal.
(f) Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Samples: Lease Agreement (INSMED Inc)
Defaults Remedies. If any of the following shall occur (each an “Event of Default”):
(a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all installments of rent (whether Fixed Rent andor additional rent) or any other charge or payment whether or not herein included as rent, except as provided in Section 22(cand such failure to pay continues for ten (10) below, Tenant fails to cure such default on or before the date that is 5 days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails the failure from Landlord to observe and perform or otherwise breaches any other provision of this LeaseTenant, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, in no event shall Landlord be required to give such a notice concerning the same type of recurring installment or payment more than twice in any calendar year;
(b) Tenant violates or fails to perform or comply with any covenant, agreement or condition herein contained and such violation or failure continues for thirty (30) days after written notice of the violation or failure from Landlord to Tenant, or if the default required cure for the violation or failure cannot reasonably be cured completed within 30 days following Landlord’s giving of noticethirty (30) days, if Tenant shall be afforded additional reasonable time (not fails to exceed 60 days following Landlord’s notice) commence to cure the default if Tenant begins failure within thirty (30) days and/or fails to diligently and continuously attempt to complete the cure the default within 30 days following Landlord’s notice and continues diligently as soon as reasonably possible thereafter provided, however, in good faith to completely cure the defaultno event shall such initial thirty (30) day period be extended more than an additional thirty (30) days;
(ivc) If An involuntary case under the federal bankruptcy law as now or hereafter constituted is commenced against Tenant, or under any other applicable federal or state bankruptcy, insolvency, reorganization, or other similar law, or there is filed against Tenant becomes a petition seeking the appointment of a receiver, liquidator or assignee, custodian, trustee, sequestrator (or similar official) of Tenant of any substantial part of Tenant’s property, or seeking the winding-up or liquidation of Tenant’s affairs and such involuntary case or petition is not dismissed within sixty (60) days after the filing thereof, of if Tenant commences a voluntary case or institutes proceedings to be adjudicated as bankrupt or insolvent or consents to the entry of an order for relief under the federal bankruptcy laws as now or hereafter constituted, or any other applicable federal or state bankruptcy or insolvency or other similar law, or consents to the appointment of or taking possession by a receiver or liquidator or assignee, trustee, custodian, sequestrator (or other similar official) of Tenant of any substantial part of Tenant’s property, or if Tenant makes a general any assignment for the benefit of creditors or offers a settlement admits in writing its inability to creditors, pay its debts generally as they become due or fails to generally pay its debts as they become due or if a petition Tenant is levied upon and is about to be sold out upon the Premises by any sheriff, xxxxxxxx or constable or Tenant or its stockholders or Board of Directors or any committee thereof takes any action in bankruptcy contemplation, preparation or furtherance of or for reorganization any of the foregoing, or, if Tenant is a corporation and is dissolved or liquidated, Then, and upon the occurrence of an Event of Default, at the sole option of Landlord,
(i) The whole balance of rent and all other sums payable hereunder for an arrangement with creditors under any federal the entire balance of the Term but accelerated and thus due and payable only on a biennial basis, herein reserved or state law is filed agreed to be paid by or against Tenant, or any part of such rent, charges and other sums, shall be taken to be due and payable from Tenant and in arrears as if by the terms of this Lease said balance of rent, charges and other sums and expenses were on that date payable in advance but net of all rent actually received by Tenant from a bill reletting, if any; and/or
(ii) Landlord may terminate this Lease by written notice to Tenant. If Landlord elects to terminate this Lease, Landlord, in equity or addition to Landlord’s other proceeding remedies, may recover from Tenant a judgment for damages equal to the sum of the following:
(A) the unpaid rent and other sums which became due up to the time of such termination plus interest from the dates such rent and other sums were due to the date of the judgment at the Lease Interest Rate; provided, however, Landlord may only accelerate unpaid rent for each biennial period as it occurs during the remaining Term of the Lease; plus
(B) the present value at the time of judgment of the amount by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment exceeds the amount of loss of such rental and other sums Tenant proves could have been reasonably avoided; plus
(C) the amount (as discounted at the rate of four percent (4%) per annum) by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the appointment balance of a receiver the term after the date of judgment exceeds the amount of loss of such rental and other sums that Tenant proves could have been reasonably avoided; plus
(D) any other amount necessary to compensate Landlord for any of all the detriment proximately caused by Tenant’s assets is commenced, failure to perform its obligations under this Lease or if any of which in the real or personal Premises of Tenant shall ordinary course would be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant likely to this Section 22(a) is in lieu of any written notice required by any applicable Laws, result therefrom including, without limitation, any notice required under California Code the cost of Civil Procedure Section 1161repairing the Premises and reasonable attorneys fees; or,plus
(vE) If Landlord’s election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable law. As used in the foregoing clause (B), the “present value at the time of judgment” shall be computed by adding to the rent past due or which would have become due interest at the Lease Interest Rate from the dates such rent was or would have become due to the date of the judgment; and/or
(iii) Landlord may terminate Tenant’s right of possession and may reenter and repossess the Premises by legal proceedings, force or otherwise, without terminating this Lease. After reentry or retaking or recovering of the Premises, whether by termination of this Lease or not, Landlord may, but shall be under no obligation to, make such alterations and repairs, as Landlord may deem then necessary or advisable 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 period which otherwise would 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 sole discretion may seem advisable and to such person or persons as may in Landlord’s sole discretion seem best; and whether or not the Premises is relet, Tenant abandons shall be liable for any loss, for such period as is or vacates would have been the Property balance of the term of this Lease, of rent and all other sums payable under this Lease, plus the cost and expenses of reletting and of redecorating, remodeling or making repairs and alterations to the Premises for the purpose or reletting, the amount of such liability to be computed monthly and to be paid by Tenant to Landlord from time to time upon demand. However, Landlord shall utilize commercially reasonable efforts to mitigate its damages upon the occurrence of an Event of Default. Tenant shall not be entitled to any rents or other sums received by Landlord in excess of five (5) business days at a time, without making provisions those provided for securityin this Lease. Tenant waives agrees that Landlord may file suit to recover any right to notice Tenant may have rent and other sums falling due under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice Article from time to Tenant as required by said Section 1951.3.
(b) If an Event time and that no suit or recovery of Default occurs, in addition to all other rights and remedies available any amount due hereunder to Landlord at lawshall be any defense to any subsequent action brought for any other amount due hereunder to Landlord. Tenant, in equityfor Tenant and Tenant’s successors and assigns, by statute or otherwise, Landlord shall have the following rights hereby irrevocably constitutes and remedies:
(i) appoints Landlord, without any obligation Tenant’s and then-agent to do so, may elect collect the rents due or 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 10% 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, by breaking open locked doors if necessary, and remove become due under all persons and all or any Premises, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) subleases of the Premises for Xxxxxxor any parts thereof without in any way affecting Tenant’s account. Xxxxxx agrees obligation to pay any unpaid balance of rent or any other sum due or to Landlord on demand become due hereunder. Notwithstanding any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Leasetermination, Landlord may at any time thereafter elect to terminate this Lease for such Tenant’s previous breach;
. Whenever Landlord shall have the right to reenter the Premises, it shall have the right to remove all persons and property from the Premises and either treat such property as abandoned or at Landlord’s option store it in a public warehouse or elsewhere at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. However Landlord hereby expressly agrees to subordinate in favor of a lender of Tenant any statutory and/or contractual lien it may have or seek to claim against Tenant’s personal property located at the Building. Attached hereto as Exhibit “I” is the form of Landlord’s Subordination and Consent (iiithe “Landlord Consent”) which Landlord shall execute and deliver to Tenant upon request in favor of a lender of Tenant. Landlord agrees to reasonably consider modifications to the Landlord Consent requested by or on behalf of a secured party. Tenant waives the right to any notice to remove as may be specified in the Landlord and Tenant Act of Pennsylvania, Act of April 6, 1951, as amended, or any similar or successor provision of law. For the purposes of computing “the whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease,” “the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment” and “the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment,” as such quoted or any similar phrases are used in this Article 21, the amounts of additional rents which would have been due per year under this Lease shall be such amounts as Landlord shall reasonably estimate to be the per annum rates of additional rent for the calendar year during which this Lease was terminated or during which rent was accelerated, increasing annually on the first day of each calendar year thereafter at the rate of four percent (4%) per annum compounded. The parties recognize that no adequate remedy at law may exist for a breach of Articles 6, 7 and 10 hereof. Accordingly, Landlord may recover obtain specific performance of any provision of Articles 6, 7 and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or 10 hereof. Neither such right nor its exercise shall limit any other remedies which are likely in the ordinary course Landlord may have against Tenant for a breach of business to be incurredsuch Articles, including, without limitation, all damages remedies available under this Article 21. The reference herein to which Landlord is entitled to recover under specific performance in connection with Articles 6, 7 and 10 shall not preclude the availability of specific performance, in any and all Laws now appropriate case, for the breach or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment threatened breach of any sum due or by other performance provision of any conditionthis Lease. In addition to other remedies available to Landlord herein, term or covenant broken; and recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could Landlord may (but shall not be reasonably avoided, discounting the aggregate of such amounts obligated to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statutedo so), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate cure any default on behalf of Tenant’s right to possession, and Tenant shall reimburse Landlord may enforce upon demand for all of its rights and remedies under this Leasecosts incurred by Landlord in curing such default, including, without limitation, reasonable attorneys’ fees and other legal expenses, together with interest thereon at the right to recover Rent as it becomes due under this LeaseLease Interest Rate, which costs and interest thereon shall be deemed additional rent hereunder. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(c) Any provision to the contrary Also in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure any monetary default provided in Section 22(a) above more than three times in any consecutive 12-month periodaddition to, and thereafter Landlord may declare an Event not in lieu of Default without affording Tenant any of the notice and cure foregoing rights provided under this Lease, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice granted to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.:
Appears in 1 contract
Samples: Lease Agreement (MEDecision, 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 five (5) business days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other material provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 thirty (30) days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 thirty (30) days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 thirty (30) days following Landlord’s notice and continues diligently in good faith to completely cure the default;; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill bxxx in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 ten percent (10% %) 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, by breaking open locked doors if necessary, and remove all persons and all or any Premisesproperty, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at XxxxxxxxLandlord’s option, make reasonable Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;14 QB\129138.00037\24864053.9
(iii) Landlord may recover Subject to Landlord’s good faith obligation to mitigate damages to the extent imposed under applicable Laws, to accelerate the whole or any part of the Rent for the balance of the Term and all damages directly caused declare the same to be immediately due and payable, and for purposes of acceleration of Annual Operating Expenses, the amount to be accelerated shall be based upon the assumption that Annual Operating Expenses for each Lease Year of the balance of the Term would be equal to the amount of Annual Operating Expenses which were payable by Xxxxxx’s failure to perform under this Lease, or which are likely Tenant in the ordinary course Lease Year immediately preceding the acceleration); provided, however, Tenant shall have the right, in any judicial proceedings brought to collect same, to assert a credit for the fair rental value of business the Premises for the balance of the Term, Tenant to have the burden of proving such credit. The fair rental value of the Premises shall be incurrednet of the costs which would be reasonably incurred by Landlord in releasing the Premises, including, including without limitation, all damages reasonable demolition and fit-out costs, brokerage commissions and legal fees and expenses. The amount determined to which be payable to Landlord is entitled hereunder shall be reduced to recover under any and all Laws now or hereafter in effect present value at the rate of six percent (including, without limitation, California Civil Code Section 1951.2).6%) per annum at the time of actual payment; and
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(ca) 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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergency.
(db) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by XxxxxxTenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(ec) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.15 QB\129138.00037\24864053.9
(fd) Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
(e) Landlord shall not be in default under this Lease unless Landlord fails to commence performance of the obligations required of Landlord within thirty (30) days after receipt of written notice by Tenant to Landlord specifying that Landlord has failed to perform such obligation, provided, however, that if the nature of Landlord’s obligation is such that more than the specified cure period is required for performance, then Landlord shall not be in default if Landlord commences performance within the specified cure period and thereafter diligently prosecutes the same to completion. In the event Landlord does not commence performance within the period provided herein, then, upon not less than five (5) days additional prior written notice from Tenant to Landlord after the end of the cure period that Tenant intends to perform the obligation on Landlord’s behalf, Tenant shall have the right, but not the obligation, to take such action as is reasonably necessary under the circumstances to perform such obligation. All work done in accordance herewith must be performed at a reasonable and competitive cost and expense (taking into account the circumstances of the obligation). To the extent such work performed by Tenant is Landlord’s responsibility under this Lease, Landlord shall reimburse Tenant, within thirty (30) days after Landlord’s receipt of a reasonably documented invoice therefor, for any reasonable sums paid or reasonable costs incurred by Tenant in curing the default (together with an administrative fee of ten percent (10%) thereof), plus interest at the Interest Rate from the respective dates of Tenant’s incurring such costs.
Appears in 1 contract
Samples: Lease Agreement (Wageworks, 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(c22(d) below, Tenant fails to cure such default on or before the date that is 5 days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c22(d) below, Tenant fails to cure the default on or before the date that is 30 20 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 20 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days promptly following Landlord’s notice and continues diligently in good faith to completely cure the default;; or
(iv) If Tenant becomes is adjudicated insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill bxxx in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 107% 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, by breaking open locked doors if necessary, and remove all persons and all or any Premisesproperty, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at XxxxxxxxLandlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such relettingreletting as the same would become due and payable under this Lease. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover To accelerate the whole or any part of the Rent for the balance of the Term, and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in declare the ordinary course of business same to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any immediately due and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).payable; and
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(vc) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possessionIntentionally Deleted.
(cd) 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 any monetary default provided in Section 22(a) above (provided that the notice period under Sections 13, 20 or 27 shall be 5 business days and the cure period shall not exceed such 5 business day period) more than three four times 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, and (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 Sections 13, 20 or 27 or in an emergency.
(de) No waiver by Landlord either party of any breach by Tenant the other shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord either party to seek a remedy for any breach by Tenant the other party be a waiver by Landlord such forebearing party of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord either party to mitigate the damages caused by Xxxxxxthe other party’s default shall not constitute a waiver of Landlordthe mitigating party’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord either party is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(ef) If either party commences an action or commences arbitration 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 its reasonable attorneys’ fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery costs, and any including costs of appeal.
(fg) Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
(h) When this Lease and the Term or any extension thereof shall have been terminated on account of any default by Tenant, or when the Term or any extension thereof shall have expired, Tenant hereby authorizes any attorney of any court of record of the Commonwealth of Pennsylvania to appear for Tenant and for anyone claiming by, through or under Tenant and to confess judgment against all such parties, and in favor of Landlord, in ejectment and for the recovery of possession of the Premises, for which this Lease or a true and correct copy hereof shall be good and sufficient warrant. AFTER THE ENTRY OF ANY SUCH JUDGMENT A WRIT OF POSSESSION MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO TENANT AND WITHOUT A HEARING. If for any reason after such action shall have been commenced it shall be determined and possession of the Premises remain in or be restored to Tenant, Landlord shall have the right for the same default and upon any subsequent default(s) or upon the termination of this Lease or Tenant’s right of possession as herein set forth, to again confess judgment as herein provided, for which this Lease or a true and correct copy hereof shall he good and sufficient warrant.
(i) The warrants to confess judgment set forth above shall continue in full force and effect and be unaffected by amendments to this Lease or other agreements between Landlord and Tenant even if any such amendments or other agreements increase Tenant’s obligations or expand the size of the Premises.
Appears in 1 contract
Samples: Lease Agreement (Novavax 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(c22(d) below, Tenant fails to cure such default on or before the date that is 5 five (5) business days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c22(d) below, Tenant fails to cure the default on or before the date that is 30 ten (30) days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 ten (30) days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 thirty (90 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 ten (30) days following Landlord’s notice and continues diligently in good faith to completely cure the default;; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill 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 real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 sixty (60) consecutive days. Any notice given pursuant to periods provided for in this Section 22(a) is in lieu of Lease shall run concurrently with any written statutory notice required by any applicable Laws, including, without limitation, periods and any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons given hereunder may be given simultaneously with or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives incorporated into any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3statutory notice.
(b) If an Event of Default occurs, Landlord shall, at any time thereafter, with or without notice or demand and without limiting Landlord in addition to all the exercise of any other rights right or remedy which Landlord may have by reason of such default (with such remedies being cumulative and remedies available to Landlord at lawnot exclusive), in equity, by statute or otherwise, 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 10% fifteen percent (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, re-enter and repossess the Premises, by breaking open locked doors if necessary, without terminating this Lease, and remove all persons and all or any property from the Premises, by action at law or otherwise, without being liable for prosecution or damages. , in which case Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Xxxxxx’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover any and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in the ordinary course of business to shall be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its Landlord’s rights and remedies under this Lease, including, without limitation, including the right to recover the Rent and all other amounts due hereunder as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.they become
Appears in 1 contract
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 five (5) days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to 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 default on or before the date that is 30 thirty (30) days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 thirty(30) days following Landlord’s 's giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 ninety (90) days following Landlord’s 's notice) to cure the default if Tenant begins to cure the default within 30 thirty (30) days following Landlord’s 's notice and continues diligently in good faith to completely cure the default;; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill bxxx in equity or other proceeding for the appointment of a receiver for any of Tenant’s 's assets is commenced, or if any of the real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 sixty (60) consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 10% thereofthe Administrative Fee) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s '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, by breaking open locked doors if necessary, and remove all persons and all or any Premisesproperty, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s Landlord's option, make Alterations and repairs in order to relet re-let the Premises and relet re-let all or any part(s) of the Premises for Xxxxxx’s Tenant's account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such relettingre-letting. In the event of reletting re-letting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover To accelerate the whole or any part of the Rent for the balance of the Term, and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in declare the ordinary course of business same to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any immediately due and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).payable; and
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times twice in any consecutive twelve (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, and (ii) (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 Sections 13, 20 or 27 or in an emergency, and (iii) if Tenant fails to comply with the provisions of Section 20, and Tenant fails to cure the default within five (5) days following Landlord's giving of notice, it shall be an Event of Default and Landlord shall have the rights provided in Section 22(b) above.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s Tenant's default shall not constitute a waiver of Landlord’s 's right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s 's right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ ' fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery costs, and any including costs of appeal.
(f) Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
(g) Landlord shall use commercially reasonable efforts to relet the Premises following Tenant's vacation of the Premises and Tenant's returning the Premises to the condition required at the time of the expiration of this Lease and to otherwise mitigate Landlord's damages under this Lease; provided, however, that Landlord shall be under no duty to market or relet the Premises prior to leasing other available space in the Building and, in no event shall Landlord be responsible or liable for any failure to relet the Premises or any part thereof, or for any failure to collect any rent due upon a reletting.
Appears in 1 contract
Samples: Lease Agreement (electroCore, Inc.)
Defaults Remedies. If any of the following (each, an “Event of Default”) shall occur:
(a) It shall be an Event of Default:
(i) If Tenant does not pay in full within five (5) business days written notice (provided that such notice shall not be required more than two (2) times in any twelve (12) month period) when due any and all installments of rent (whether Fixed Rent and, except or additional rent) or any other charge or payment whether or not herein included as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 days after Landlord gives Tenant written notice of defaultrent;
(iib) If Tenant enters into violates or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches comply with any other provision of this Leasenon-monetary covenant, andagreement or condition herein contained, except as provided in Section 22(cand such failure is not cured within thirty (30) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of defaultfrom Landlord; provided, provided however, if the default Tenant’s failure to comply cannot reasonably be cured within 30 days following Landlord’s giving of noticethirty (30) days, Tenant shall be afforded allowed additional reasonable time (not to exceed 60 days following Landlord’s noticeninety (90) additional days) as is reasonably necessary to cure the default if failure so long as Tenant begins the cure within thirty (30) days and diligently pursues the cure to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the defaultcompletion;
(ivc) If Intentionally omitted; or
(d) An involuntary case under the federal bankruptcy law as now or hereafter constituted is commenced against Tenant becomes or any guarantor or surety of Tenant’s obligations under this Lease (“Guarantor”), or under any other applicable federal or state bankruptcy, insolvency, reorganization, or other similar law, or there is filed against Tenant or a Guarantor a petition seeking the appointment of a receiver, liquidator or assignee, custodian, trustee, sequestrator (or similar official) of Tenant or a Guarantor of any substantial part of Tenant’s or a Guarantor’s property, or seeking the winding-up or liquidation of Tenant’s or a Guarantor’s affairs and such involuntary case or petition is not dismissed within ninety (90) days after the filing thereof, of if Tenant or a Guarantor commences a voluntary case or institutes proceedings to be adjudicated as bankrupt or insolvent or consents to the entry of an order for relief under the federal bankruptcy laws as now or hereafter constituted, or any other applicable federal or state bankruptcy or insolvency or other similar law, or consents to the appointment of or taking possession by a receiver or liquidator or assignee, trustee, custodian, sequestrator (or other similar official) of Tenant or a Guarantor of any substantial part of Tenant’s or a Guarantor’s property, or if Tenant or any Guarantor makes a general any assignment for the benefit of creditors or offers a settlement admits in writing its inability to creditorspay its debts generally as they become due or if Tenant is levied upon and is about to be sold out upon the Premises by any sheriff, marshal or constable, or if Tenant or any Guarantor is a petition corporation and is dissolved or liquidated, Then, and in bankruptcy any such event, at the sole option of Landlord,
(i) The whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease, herein reserved or for reorganization or for an arrangement with creditors under any federal or state law is filed agreed to be paid by or against Tenant, or any part of such rent, charges and other sums, discounted to present value at a bill rate of six percent (6%) shall be taken to be due and payable from Tenant and in equity or arrears as if by the terms of this Lease said balance of rent, charges and other proceeding sums and expenses were on that date payable in advance; and/or
(ii) Landlord may terminate this Lease by written notice to Tenant. If Landlord elects to terminate this Lease, Landlord, in addition to Landlord’s other remedies, may recover from Tenant a judgment for damages equal to the sum of the following:
(A) the unpaid rent and other sums which became due up to the time of such termination plus interest from the dates such rent and other sums were due to the date of the judgment at the Lease Interest Rate; plus
(B) the present value at the time of judgment of the amount by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment exceeds the amount of loss of such rental and other sums Tenant proves could have been reasonably avoided; plus
(C) the amount (as discounted at the rate of four percent (4%) per annum) by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the appointment balance of a receiver the term after the date of judgment exceeds the amount of loss of such rental and other sums that Tenant proves could have been reasonably avoided; plus
(D) any other amount necessary to compensate Landlord for any of all the detriment proximately caused by Tenant’s assets is commenced, failure to perform its obligations under this Lease or if any of which in the real or personal Premises of Tenant shall ordinary course would be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant likely to this Section 22(a) is in lieu of any written notice required by any applicable Laws, result therefrom including, without limitation, any notice required under California Code the cost of Civil Procedure Section 1161repairing the Premises and reasonable attorneys’ fees; or,plus
(vE) If at Landlord’s election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable law. As used in the foregoing clause (B), the “present value at the time of judgment” shall be computed by adding to the rent past due or which would have become due interest at the Lease Interest Rate from the dates such rent was or would have become due to the date of the judgment; and/or
(iii) Landlord may terminate Tenant’s right of possession and may reenter and repossess the Premises by legal proceedings, force or otherwise, as allowed by law, without terminating this Lease. After reentry or retaking or recovering of the Premises, whether by termination of this Lease or not, Landlord may, but shall be under no obligation to, make such alterations and repairs, as Landlord may deem then necessary or advisable 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 otherwise would 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 sole discretion may seem advisable and to such person or persons as may in Landlord’s sole discretion seem best; and whether or not the Premises are relet, Tenant abandons shall be liable for any loss, for such period as is or vacates would have been the Property balance of the term of this Lease, of rent and all other sums payable under this Lease, plus the reasonable and actual costs and expenses of reletting and of redecorating, remodeling or making repairs and alterations to the Premises for the purpose or reletting, the amount of such liability to be computed monthly and to be paid by Tenant to Landlord from time to time upon demand. Landlord shall in no event be liable for, nor shall any damages or other sums to be paid by Tenant to Landlord be reduced by, failure to relet the Premises or failure to collect the rent or other sums from any reletting. Tenant shall not be entitled to any rents or other sums received by Landlord in excess of five (5) business days at a time, without making provisions those provided for securityin this Lease. Tenant waives agrees that Landlord may file suit to recover any right to notice Tenant may have rent and other sums falling due under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice Article from time to time and that no suit or recovery of any amount due hereunder to Landlord shall be any defense to any subsequent action brought for any other amount due hereunder to Landlord. Tenant, for Tenant and Tenant’s successors and assigns, after Landlord’s delivery to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurswritten notice of default and the passing of any applicable cure periods, in addition to all other rights hereby irrevocably constitutes and remedies available to Landlord at law, in equity, by statute or otherwise, Landlord shall have the following rights and remedies:
(i) appoints Landlord, without any obligation Tenant’s and their agent to do so, may elect collect the rents due or 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 10% 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, by breaking open locked doors if necessary, and remove become due under all persons and all or any Premises, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) subleases of the Premises for Xxxxxxor any parts thereof and Landlord shall apply such rents to Tenant’s accountunpaid rental obligations under this Lease. Xxxxxx agrees to pay to Landlord on demand Notwithstanding any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Leasetermination, Landlord may at any time thereafter elect to terminate this Lease for such Tenant’s previous breach;
(iii) Event of Default. Whenever Landlord may recover any and all damages directly caused by Xxxxxx’s failure shall have the right to perform reenter the Premises under this Lease, it shall have the right to remove all persons and property from the Premises and either treat such property as abandoned or at Landlord’s option store it in a public warehouse or elsewhere at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which are likely may be occasioned thereby. Tenant waives the right to any notice to remove as may be specified in the ordinary course Landlord and Tenant Act of business Pennsylvania, Act of April 6, 1951, as amended, or any similar or successor provision of law. For the purposes of computing “the whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease,” “the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment” and “the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment,” as such quoted or any similar phrases are used in this Article 21, the amounts of additional rents which would have been due per year under this Lease shall be such amounts as Landlord shall reasonably estimate to be incurredthe per annum rates of additional rent for the calendar year during which this Lease was terminated or during which rent was accelerated, increasing annually on the first day of each calendar year thereafter at the rate of six percent (6%) per annum compounded. The parties recognize that no adequate remedy at law may exist for a breach of Articles 6, 7 and 10 hereof. Accordingly, Landlord may obtain specific performance of any provision of Articles 6, 7 and 10 hereof. Neither such right nor its exercise shall limit any other remedies which Landlord may have against Tenant for a breach of such Articles, including, without limitation, all damages remedies available under this Article 21. The reference herein to which Landlord is entitled to recover under specific performance in connection with Articles 6, 7 and 10 shall not preclude the availability of specific performance, in any and all Laws now appropriate case, for the breach or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment threatened breach of any sum due or by other performance provision of any conditionthis Lease. In addition to other remedies available to Landlord herein, term or covenant broken; and recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could Landlord may (but shall not be reasonably avoided, discounting the aggregate of such amounts obligated to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statutedo so), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate cure any uncured Event of Default on behalf of Tenant’s right to possession, and Tenant shall reimburse Landlord may enforce within thirty (30) days of receipt of written demand for all of its rights and remedies under this Leasereasonable costs actually incurred by Landlord in curing such default, including, without limitation, reasonable attorneys’ fees and other legal expenses, together with interest thereon at the right to recover Rent as it becomes due under this LeaseLease Interest Rate, which costs and interest thereon shall be deemed additional rent hereunder. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(c) Any provision to the contrary Also in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure any monetary default provided in Section 22(a) above more than three times in any consecutive 12-month periodaddition to, and thereafter Landlord may declare an Event not in lieu of Default without affording Tenant any of the notice and cure foregoing rights provided under this Lease, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice granted to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.:
Appears in 1 contract
Samples: Lease Agreement (Trevena Inc)
Defaults Remedies. (aA) 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(c22(d) below, Tenant fails to cure such default on or before the date that is 5 7 calendar days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c22(d) below, Tenant fails to cure the default on or before the date that is 30 10 calendar days after Landlord gives Tenant written notice of default; provided, however, if the default cannot reasonably be cured within 30 10 calendar days following Landlord’s 's giving of written notice, Tenant shall be afforded additional reasonable time (not to exceed 60 30 days following Landlord’s 's notice) to cure the default if Tenant begins to cure the default within 30 10 calendar days following Landlord’s 's notice and continues diligently in good faith to completely cure the default;; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill xxxx in equity or other proceeding for the appointment of a receiver for any of Tenant’s 's assets is commenced, or if any of the real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(bB) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 1015% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s '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, by breaking open locked doors if necessary, and remove all persons and all or any Premisesproperty, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s Landlord's option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Xxxxxx’s Tenant's account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover To accelerate the whole or any part of the Rent for the balance of the Term, and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in declare the ordinary course of business same to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any immediately due and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).payable; and
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
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(c22(d) below, Tenant fails to cure such default on or before the date that is 5 days five (5) Business Days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c22(d) below, Tenant fails to cure the default on or before the date that is 30 days ten (10) Business Days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days ten (10) Business Days following Landlord’s 's giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 ninety (90) days following Landlord’s 's notice) to cure the default if Tenant begins to cure the default within 30 days ten (10) Business Days following Landlord’s 's notice and continues diligently in good faith to completely cure the default;; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill bxxx in equity or other proceeding for the appointment of a receiver for any of Tenant’s 's assets is commenced, or if any of the real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 sixty (60) consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 1015% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s '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, by breaking open locked doors if necessary, and remove all persons and all or any Premisesproperty, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s Landlord's option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Xxxxxx’s Tenant's account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover To accelerate the whole or any part of the Rent for the balance of the Term, and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in declare the ordinary course of business same to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any immediately due and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).payable; and
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(vc) In accordance with California Civil Code addition to the rights and remedies provided in Section 1951.4 (or any successor statute)22(b) above, if an Event of Default occurs relating to Tenant's non-payment of the Rent due hereunder, Tenant acknowledges that hereby authorizes any attorney of any court of record of the Commonwealth of Pennsylvania to appear for Tenant and to confess judgment against Tenant, and in favor of Landlord, for all Rent due hereunder plus costs and an attorney's collection commission equal to the event Tenant breaches greater of 10% of all Rent or $1,000, for which this Lease or a true and correct copy hereof shall be good and sufficient warrant. TENANT UNDERSTANDS THAT THE FOREGOING PERMITS LANDLORD TO ENTER A JUDGMENT AGAINST TENANT WITHOUT PRIOR NOTICE OR HEARING. ONCE SUCH A JUDGMENT HAS BEEN ENTERED AGAINST TENANT, ONE OR MORE WRITS OF EXECUTION OR WRITS OF GARNISHMENT MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO TENANT AND WITHOUT A HEARING, AND, PURSUANT TO SUCH WRITS, LANDLORD MAY CAUSE THE SHERIFF OF THE COUNTY IN WHICH ANY PROPERTY OF TENANT IS LOCATED TO SEIZE TENANT'S PROPERTY BY LEVY OR ATTACHMENT. IF THE JUDGMENT AGAINST TENANT REMAINS UNPAID AFTER SUCH LEVY OR ATTACHMENT, LANDLORD CAN CAUSE SUCH PROPERTY TO BE SOLD BY THE SHERIFF EXECUTING THE WRITS, OR, IF SUCH PROPERTY CONSISTS OF A DEBT OWED TO TENANT BY ANOTHER ENTITY, LANDLORD CAN CAUSE SUCH DEBT TO BE PAID DIRECTLY TO LANDLORD IN AN AMOUNT UP TO BUT NOT TO EXCEED THE AMOUNT OF THE JUDGMENT OBTAINED BY LANDLORD AGAINST TENANT, PLUS THE COSTS OF THE EXECUTION. Such authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time as often as any of the Rent and other sums shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the initial term of this Lease and abandons the Premises, during any extended or renewal term of this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all after the expiration of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under any extended or renewal term of this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination Initials on behalf of Tenant’s right to possession:_____
(cd) Any provision to the contrary in this Section 22 notwithstandingnotwithstanding (other than the last sentence of this Section 22(d)), (i) Landlord shall not be required to give Tenant the notice and opportunity to cure any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 18, 20 or 27 or in an emergency. Notwithstanding the foregoing, Landlord shall provide Tenant with additional written notice at least thirty (30) days prior to exercising any confession of judgment against Tenant pursuant to Section 22(c) or Section 22(h); provided, however, that if Landlord elects to confess judgment for Rent and attorney fees pursuant to Section 22(c) without first accelerating the Rent, thereby requiring multiple confessions of judgment as Rent accrues, a single notice of such election delivered to Tenant at least thirty (30) days prior to the first such exercise of the confession of judgment shall suffice, and no further notices shall be required for subsequent confessions of judgment for Rent and attorney fees.
(de) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s Tenant's default shall not constitute a waiver of Landlord’s 's right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s 's right to pursue any other available remedy.
(ef) If either party commences an action or commences arbitration 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 its reasonable attorneys’ ' fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery costs, and any including costs of appeal.
(fg) Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
(h) When this Lease and the Term or any extension thereof shall have been terminated on account of any default by Tenant, or when the Term or any extension thereof shall have expired, Tenant hereby authorizes any attorney of any court of record of the Commonwealth of Pennsylvania to appear for Tenant and for anyone claiming by, through or under Tenant and to confess judgment against all such parties, and in favor of Landlord, in ejectment and for the recovery of possession of the Premises, for which this Lease or a true and correct copy hereof shall be good and sufficient warrant. AFTER THE ENTRY OF ANY SUCH JUDGMENT A WRIT OF POSSESSION MAY BE
Appears in 1 contract
Samples: Lease Agreement (Tasty Baking Co)
Defaults Remedies. The occurrence of any or more of the following events shall constitute a material default and breach of this lease by Tenant:
A. The vacating or abandonment of the premises by Xxxxxx for thirty (a30) It consecutive days.
B. The failure by Tenant to make any payment of rent or any other payment required to be made by Tenant when due and payable.
C. The failure by Xxxxxx to observe or perform any of the covenants, conditions, or provisions of this lease to be observed or performed by Tenant other than described in paragraph (b) herein above where such failure shall continue for a period of thirty (30) days after written notice thereof from Landlord to Tenant, unless Tenant is diligently pursuing a cure.
D. The making by Tenant of any general assignment or general arrangement for the benefit of creditors, filing by or against Tenant of petition to have Tenant adjudged a bankrupt, or a petition for reorganization or arrangement under any law relating to bankruptcy (unless in the case of a petition filed by the Tenant, the same is dismissed within sixty (60) days), the appointment of a trustee or receiver to take possession of substantially all the Tenant's assets located in the premises or the Tenant's interest in this lease where possession is not restored to Tenant within thirty (30) days or the attachment, execution, or other judicial seizure of substantially all Tenant's assets located at the premises or Tenant's interest in this lease where such seizure is not discharged within thirty (30) days.
i. In the event the trustee of the Tenant shall make timely affirmance of this lease under the Bankruptcy Reform Act of 1978 and continues in the possession of the premises, it shall be an Event the responsibility of Default:
(i) If Tenant does not pay in full when due the trustee to cure or make adequate assurance that all defaults under the provisions of this lease shall be promptly cured, to fully compensate or provide adequate assurance or compensation for any and all Rent andlosses suffered by Landlord, except as provided and to provide adequate assurance that all conditions of this lease shall be performed in Section 22(c) belowthe future including, but not limited to, adequate assurance of payment of rent and other considerations due under this lease. In no event will Landlord be required to provide additional services or supplies under this lease unless fully compensated by the trustee. If this lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. S101 et seq. (The "Bankruptcy Code"), any and all monies or other considerations payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to the Landlord, shall be and remain the exclusive property of the Landlord, and shall not constitute the property of the Tenant fails or the estate of the Tenant or the estate of the Tenant within the meaning of the Bankruptcy Code. Any and all monies or other considerations constituting Landlord's property under the preceding sentence not paid or delivered to cure such default on Landlord shall be held in trust for the benefit of the Landlord and shall be promptly paid and/or delivered to the Landlord.
ii. In the event that any new insolvency or before receivership should occur after closing of the date that is 5 days after bankruptcy case, the Landlord gives may, at its option and in addition to any other remedies available to Landlord, terminate this lease and all rights of the Tenant hereunder by giving to Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails Xxxxxxxx's election to 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 default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 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;
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal Premises of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3terminate.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 10% 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, by breaking open locked doors if necessary, and remove all persons and all or any Premises, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Xxxxxx’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such relettingiii. In the event of reletting without termination of this Leasesuch material default or breach by Xxxxxx, Landlord may may, at any time thereafter elect to terminate this Lease for such previous breach;
(iii) hereunder with or without notice of demand and without limiting Landlord in the exercise of any right or remedy which Landlord may recover any and all damages directly caused by Xxxxxx’s failure to perform under this Leasehave be reason of such default or breach, or which are likely proceed in the ordinary course following manner:
a. Terminate Xxxxxx's rights to possession of business premises by any lawful means, in which case Xxxxxx's possession shall be terminated and Tenant shall immediately surrender possession of the premises to the Landlord. In such event, Landlord shall be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and from Tenant all Laws now or hereafter in effect (damages incurred by Landlord by reason of Tenant's default including, without limitationbut not limited to, California Civil Code Section 1951.2)the cost of recovering the premises; expenses of subletting including necessary renovations or alteration of the premises; attorney's fees; any real estate commissions actually paid, and any other out-of-pocket expenses the Landlord may incur. Unpaid installments of rent or other sums shall bear interest from date due at the rate of ten percent (10%) per annum compounded monthly after Xxxxxx's right to possession has been terminated.
(iv) To terminate b. Maintain Tenant's right to possession in which case 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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease lease shall continue in effect for so long as whether or not Tenant shall have abandoned the premises. In such event, Landlord does not terminate Tenant’s right shall be entitled to possession, and Landlord may enforce all of its Landlord's rights and remedies under this Leaselease, including, without limitation, including the right to recover Rent as the rent as. it becomes due hereunder.
c. Pursue any other remedy now or hereafter available to Landlord under this Lease. Acts the laws of maintenance or preservation or efforts to re-let the Premises or the appointment Commonwealth of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possessionVirginia.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) d. Landlord shall not be in default unless Landlord fails to perform obligations required of Landlord within thirty (30) days after written notice by Tenant to give Tenant Landlord specifying wherein Landlord has failed to perform such obligations, provided, however, that the notice and opportunity to cure any monetary default provided in Section 22(a) above nature of the Landlord's obligation is such that more than three times in any consecutive 12-month periodthirty (30) days is required for performance, and thereafter Landlord may declare an Event of Default without affording Tenant any of then the notice and cure rights provided under this Lease, and (ii) Landlord shall not be required in default if Landlord commences performance within thirty (30) days and thereafter diligently prosecutes the same to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Sections 13, 20 or 27 or in an emergencycompletion.
(d) No waiver by e. If Landlord of any breach by Tenant shall is found to be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy liable for any breach by Tenant be a waiver by Landlord of monetary damages, any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default award under this lease agreement shall not constitute a waiver exceed the dollar value of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive the remaining value of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedylease term.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Samples: Lease Agreement (Monterey Capital Acquisition Corp)
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(c25(c) below, Tenant fails to cure such default on or before the date that is 5 ten (10) days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 21 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c25(c) below, Tenant fails to cure the default on or before the date that is 30 thirty (30) days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 thirty (30) days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 ten (10) days following Landlord’s notice and continues diligently in good faith to completely cure the default;; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill bxxx in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 ninety (90) consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, Landlord shall have the following rights and remediesremedies provided same are exercised in accordance with applicable Laws:
(i) Landlord, without any obligation to do so, may upon fourteen (14) days prior written notice (except in emergency) to Tenant 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 1015% 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, by breaking open locked doors if necessary, and remove all persons and all or any Premisesproperty, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at XxxxxxxxLandlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover To accelerate the whole or any part of the Rent for the balance of the Term, and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in declare the ordinary course of business same to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any immediately due and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).payable; and
(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 .
(c) If Landlord elects to accelerate Rent pursuant to Section 23(b)(iii) above, Landlord shall be entitled to recover as damages the worth, following amounts (reduced by the amount of loss of Rent that Tenant proves could be reasonably avoided):
(i) The worth at the time of award of any award, unpaid Rent and other charges which has been earned at the time of such termination; plus
(ii) The worth at the time of award of the amount by of any Rent and other charges which would have been earned after termination until the award; plus
(iii) The worth at the time of award of the amount of any unpaid Rent and other charges which Tenant would have paid for the balance of the Term after the time of award; plus
(iv) Any other amount necessary to compensate Landlord for all the award exceeds detriment proximately caused by Tenant’s failure to perform its obligations under this Lease or which in the amount ordinary course of things would be likely to result therefrom, including without limitation, any costs or expenses incurred by Landlord in (a) maintaining or preserving the Premises after such default, (b) recovering possession of the rental loss that Premises, including reasonable attorneys’ fees therefore, (c) expenses of reletting the Tenant proves could be reasonably avoidedPremises to a new tenant, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate including necessary renovations or alterations of the Federal Reserve Bank Premises, reasonable attorneys’ fees incurred, and leasing commissions incurred; plus
(v) Such other amounts in San Francisco addition to or in effect lieu of the foregoing as may be permitted from time to time by the laws of the State where the Project is located. As used in subparagraphs (i), (ii) and (iii) above, the “worth at the time of award” is computed by allowing interest on unpaid amounts at the awardrate of 6.0% per annum. For purposes of this Section 25, all Rent other than Minimum Annual Rent, shall, for purposes of calculating any amount due under the provisions of subparagraph (iii) above, be computed on the basis of the average monthly amount of Rent payable by Tenant during the immediately preceding 36 month period, except that if it becomes necessary to compute such rental before such 36 months of the Term expired, then such Rent shall be computed on the basis of the average monthly amount of Rent payable during such shorter period.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(cd) Any provision to the contrary in this Section 22 25 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure any monetary default provided in Section 22(a25(a) above more than three times 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, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b25(b) if Tenant fails to comply with the provisions of Sections 1316, 20 32 or 27 or 23 in an emergency.
(de) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by XxxxxxTenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(ef) Notwithstanding anything to the contrary contained herein, Landlord shall make reasonable effort to mitigate its damages to the extent required under applicable Laws; provided that if, after the date hereof, the Laws shall change so that Landlord shall not be required to perform any mitigation of its damages, following repossession of the Premises, Landlord agrees to make commercially reasonable efforts to re-let the Premises at such rates and under such terms as are then commercially reasonable.
(g) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery costs, and any including costs of appeal.
(fh) Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Samples: Lease Agreement (Shutterfly 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 written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to 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 default on or before the date that is 30 10 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 10 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 30 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 10 days following Landlord’s notice and continues diligently in good faith to completely cure the default;; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill 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 real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 1015% 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, by breaking open locked doors if necessary, and remove all persons and all or any Premisesproperty, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at XxxxxxxxLandlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable, less any Rent that Landlord may recover reasonably be expected to collect from any and all damages directly caused by Xxxxxx’s failure to perform under this Lease, replacement tenant or which are likely in the ordinary course of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).occupant at prevailing market rates; and
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by XxxxxxTenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery costs, and any including costs of appeal.
(f) Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Samples: Lease Agreement (Ev3 Inc.)
Defaults Remedies. (a) It shall be an “Event of Default”:
(i) 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 five (5) days after Landlord gives Tenant written notice of defaultdefault (a “Monetary Event of Default”);
(ii) . If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) . If Tenant fails to 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 default on or before the date that is 30 twenty (20) days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 twenty (20) days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 sixty (60) days following LandlordXxxxxxxx’s notice) to cure the default if Tenant begins to cure the default within 30 twenty (20) days following Landlord’s notice and continues diligently in good faith to completely cure the default;; or
(iv) . If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 sixty (60) consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, Landlord shall have the following rights and remedies:
(i) 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 10% thereofthe Administrative Fee) 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, by breaking open locked doors if necessary, and remove all persons and all or any Premisesproperty, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet re-let the Premises and relet re-let all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such relettingre-letting. In the event of reletting re-letting without termination of this 126390.00400/118481426v.4 04/15/2019 05:55 A4P4 Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover . To accelerate the whole or any part of the Rent for the balance of the Term, and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in declare the ordinary course present value of business the same to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any immediately due and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).payable; and
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times twice in any consecutive twelve (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, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery costs, and any including costs of appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
(g) Landlord shall use commercially reasonable efforts to relet the Premises following Xxxxxx's vacation of the Premises and Xxxxxx's returning the Premises to the condition required at the time of the expiration of this Lease and to otherwise mitigate Landlord's damages under the Lease; provided, however, that Landlord shall be under no duty to market or relet the Premises prior to leasing other available space in the Building and, in no event shall Landlord be responsible or liable for any failure to relet the Premises or any part thereof, or for any failure to collect any rent due upon a reletting.
Appears in 1 contract
Samples: Lease Agreement (Penumbra Inc)
Defaults Remedies. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Tenant:
(a) It shall be an Event The vacating or abandonment of Default:the Premises by Tenant.
(ib) If The failure by Tenant does to make any payment of rent or any other payment required to be made by Tenant hereunder, as and when due.
(c) 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 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 pay be deemed to be in full when due 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 and 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 is dismissed within sixty (60) days), the appointment of a Trustee or receiver to take possession of substantially all Rent andof the Tenant's assets located in the Premises or the Tenant's interest in this Lease where possession is not restored to Tenant within thirty (30) days or the attachment, except as provided execution of other judicial seizure of substantially all of Tenant's assets located at the premises or Tenant's interest in Section 22(cthis Lease, where such seizure is not discharged within thirty (30) belowdays. In the event of such material default or breach by Tenant, Tenant fails 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 cure 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 before from any other person and regardless of and notwithstanding the date fact that is 5 days 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 Landlord gives any of such breach or default give to Tenant written a notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision termination of this Lease, and, except 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 provided in Section 22(c) below, Tenant fails to cure fully and completely and with the default on or before same force and effect as if the day so specified were the date that is 30 days after Landlord gives hereinbefore fixed for the normal expiration of the term of this Lease and all rights of Tenant notice under this Lease shall expire and terminate, but Tenant shall remain liable for damages as hereinafter provided. Upon any such termination of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of noticethis Lease, Tenant shall be afforded additional reasonable time (not peaceably quit and surrender the Premises to exceed 60 days following Landlord’s , and Landlord may, without further notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice , enter upon, re-enter, possess and continues diligently in good faith to completely cure the default;
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditorsrepossess itself thereof, by force, summary proceeding, ejectment, unlawful detainer, or if 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 Landlord shall be deemed an acceptance of a petition surrender of this Lease. It is covenanted and agreed by Tenant that in bankruptcy the event of the termination of this Lease or for reorganization or for an arrangement with creditors of re-entry by Landlord, under any federal or state law is filed by or against Tenant, or a bill in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal Premises of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice or pursuant to law by reason of default hereunder on the part of Tenant, Tenant will pay to Landlord, as required by said Section 1951.3.damages, at the election of Landlord, either:
(ba) If an Event a sum which at the time of Default occurssuch termination of this Lease represents the excess, in addition to all other rights and remedies available to Landlord at lawif any, in equity, by statute or otherwise, Landlord shall have the following rights and remediesof:
(i) Landlordthe aggregate basic rental, without additional rental and any obligation to do soother sums which would have been payable by Tenant for the period commencing with such termination of this Lease and ending with the date hereinabove set for the normal expiration of the full term hereby granted had this Lease not so terminated or had Landlord not so re-entered the Premises, 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 10% 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;or
(ii) To enter and repossess the Premises, by breaking open locked doors if necessary, and remove all persons and all or any Premises, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) aggregate rental value of the Premises for Xxxxxx’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred as determined by a M.A.I. appraiser selected by Landlord) that may arise for the same period; or
(b) sums equal to the basic rental, additional rental and any other sums which would have been payable by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate Tenant had 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 such previous breach;
(iii) Landlord may recover any and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in the ordinary course of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).
(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 recover as damages the worth, at the time of any award, normal expiration of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss full term hereby granted, provided, however, that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease if Landlord shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to 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 appointment Premises and of a receiver upon initiative 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 protect Landlord’s interests under postpone suit until the date when the term of this Lease shall would have expired if it had not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times 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 been terminated under this Lease, and (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 Sections 13this paragraph, 20 or 27 under any provisions of law, or in an emergency.
(d) No waiver by had Landlord not re-entered the Premises. Landlord shall also be entitled to collect from Tenant any attorney's fees arising out of any breach by Tenant Tenant's default hereunder. Landlord shall also be a 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 rights and remedies with respect entitled to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to other remedies as may be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing available at law or in equity. No payment equity in the event of default by Tenant hereunder. Tenant, for Tenant, and on behalf of any and all persons claiming by, through or receipt under Tenant, including creditors of all kind, does hereby waive and surrender all right and privilege which they or acceptance any of them might have under or by Landlord reason of any present or future law to redeem the Premises or to have a lesser amount than the total amount due Landlord under continuance of this Lease shall be deemed to be other than on account, nor shall any endorsement for the term hereby demised after being dispossessed or statement on any check ejected therefrom by process of law or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover under the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter terms of this LeaseLease or after the termination of this Lease as herein provided.
Appears in 1 contract
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 days five (5) Business Days after Landlord gives Tenant written notice of default, provided, however, that with respect to failure to pay any sum that is not a regular installment of monthly Rent, such failure shall not be an Event of Default hereunder unless Landlord thereafter delivers to Tenant a second written notice which contains a statement in BOLD FACE CONSPICUOUS TYPE that it is a second notice of default and that failure to cure such default within three (3) Business Days from the date of receipt of the notice shall constitute an Event of Default under this Lease, and Tenant thereafter fails to cure such default within such three (3) Business Day period;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to 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 default on or before the date that is 30 thirty (30) days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 thirty (30) days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 thirty (30) days following Landlord’s notice and continues diligently in good faith to completely cure the default;; or
(iv) If Tenant becomes insolvent insolvent, or transfers all or substantially all of Tenant’s assets, or makes a general assignment for the benefit of creditors creditors, or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill bxxx in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed or undismissed for more than 60 sixty (60) consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 1015% 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, by breaking open locked doors if necessary, and remove all persons and all or any Premisesproperty, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at XxxxxxxxLandlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover any To accelerate up to six (6) months of Rent next due and all damages directly caused by Xxxxxx’s failure to perform under this Leaseowing, or which are likely in and declare the ordinary course of business same to be incurredimmediately due and payable; provided that if Tenant shall pay such amount within twenty (20) days of written demand by Landlord therefor, including, without limitation, all damages the Event of Default shall be deemed to which Landlord is entitled have been cured and the Rent for the next six (6) months shall be deemed to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).have been fully pre-paid; and/or
(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; broken and recover from Tenant upon demand therefor, as liquidated and agreed upon final damages for Tenant’s default, an amount equal to (i) the worth, at the time of any award, net present value of the amount by which sum of the unpaid Minimum Rent and Additional Rent reserved under this Lease until the then-scheduled Expiration Date, less (ii) the net present value of the Fair Market Rent for the balance Premises (as reasonably determined by Landlord) net of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could costs which would be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank incurred by Landlord in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons re-leasing the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, including without limitation, reasonable demolition and fit-out costs, a one-year tenantless transition period, brokerage commissions, legal fees and expenses. For purposes of this Section 22(b)(iv), net present value shall be determined by discounting future amounts at the right to recover Rent as it becomes due under this Lease. Acts rate of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possessionfour percent (4%) per annum.
(c) Any provision to the contrary in this Section 22 notwithstanding, notwithstanding (i) with respect to installments of Monthly Rent, Landlord shall not be required to give Tenant the notice and opportunity to cure any monetary default provided in Section 22(a) above more than three times 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, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under this Section 22(b) 22 if Tenant fails to comply with the provisions of Sections 13, 20 20(a) or 27 or 26, provided that Landlord has previously delivered the written notice contemplated in such sections and Landlord thereafter delivers to Tenant a written notice which contains a statement in BOLD FACE CONSPICUOUS TYPE that it is a second notice of default and that failure to cure such default within three (3) Business Days from the date of receipt of the notice shall constitute an emergencyEvent of Default under this Lease, and Tenant thereafter fails to cure such default within such three (3) Business Day period.
(d) No waiver by Landlord or Tenant of any breach by Tenant the other shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord either to seek a remedy for any breach by Tenant the other be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts Landlord shall use commercially reasonable efforts to mitigate its damages hereunder attributable to an Event of Default, but efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s 's right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord either party is intended to be exclusive of any other right or remedy provided herein or by lawlaw or in equity, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s 's right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ ' fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery and other litigation costs, and any including costs of appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Defaults Remedies. 1 9 .1 by Tenant: Events of Default. The occurrence of any of the following shall constitute a default of this Lease (a) It shall be an Event of Default:
(i) If Any failure by Tenant does not to 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 days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of charge required to be paid under this Lease, andor any part thereof, except as provided in Section 22(cwhen due unless such failure is cured within five (5) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant Tenant's receipt of written notice of defaultthereof; provided, however, the such notice shall be in addition to and not in lieu of any notice required under Section 1161 of the California Code of Civil Procedure; or (b) Except where a specific time period is otherwise set forth for Tena11t's performance in this Lease, in which event the failure to perfor1n by Tenant within such time period shall be a default by Tenant under this Section 19 .1 (b ), any failure by Tenant to observe or perform any other provision, covenant or conditio11 of this Lease to be observed or perfor1ned by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord to Tenant (such notice shall be in addition to and not in lieu of any notice required under Section 1161 of the California Code of Civil Procedure); provided that if the nature of such default is such that the same cannot reasonably be cured within 30 days following Landlord’s giving of noticea thirty (30) day period, Tenant shall not be afforded additional reasonable time (not deemed to exceed 60 days following Landlord’s notice) to cure the be in default if Tenant begins it diligently commences such cure within such period and thereafter diligently proceeds to rectify and cure such default; or (c) To the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default;
(iv) If Tenant becomes insolvent or makes extent permitted by law, a general assignment by Tenant or any guarantor of the Lease for the benefit of creditors or offers a settlement to creditors, or if a petition the taking of any corporate action in furtherance of bankruptcy or for reorganization dissolution whether or for not there exists any proceeding under an arrangement with creditors under any federal insolvency or state law is filed bankruptcy law, or the filing by or against TenantTenant or any guarantor of any proceeding under an insolvency or bankruptcy law, or a bill unless in equity or other proceeding for the appointment case of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal Premises of proceeding filed against Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 10% 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, by breaking open locked doors if necessary, and remove all persons and all or any Premisesguarantor the same is dismissed within sixty (60) days, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Xxxxxx’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover any and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in the ordinary course of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a trustee or receiver upon initiative to take possession of Landlord all or substantially all of the assets of Tenant or any guarantor, unless possession is restored to protect Landlord’s interests under this Lease shall not constitute a termination Tenant or such guarantor within thirty (30) days, or any execution or other judicially authorized seizm·e of all or substantially all of Tenant’s right to possession
(c) Any provision to 's assets located upon the contrary Premises or of Tenant's interest in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure any monetary default provided in Section 22(a) above more than three times 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, and unless such seizure is discharged within thirty (ii30) 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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.days; or
Appears in 1 contract
Defaults Remedies. If any of the following shall occur (each an “Event of Default”):
(a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all installments of rent (whether Fixed Rent andor additional rent) or any other charge or payment whether or not herein included as rent, except as provided in Section 22(cand such failure to pay continues for ten (10) below, Tenant fails to cure such default on or before the date that is 5 days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails the failure from Landlord to observe and perform or otherwise breaches any other provision of this LeaseTenant, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, in no event shall Landlord be required to give such a notice concerning the same type of recurring installment or payment more than twice in any calendar year;
(b) Tenant violates or fails to perform or comply with any covenant, agreement or condition herein contained and such violation or failure continues for thirty (30) days after written notice of the violation or failure from Landlord to Tenant, or if the default required cure for the violation or failure cannot reasonably be cured completed within 30 days following Landlord’s giving of noticethirty (30) days, if Tenant shall be afforded additional reasonable time (not fails to exceed 60 days following Landlord’s notice) commence to cure the default if Tenant begins failure within thirty (30) days and/or fails to diligently and continuously attempt to complete the cure the default within 30 days following Landlord’s notice and continues diligently as soon as reasonably possible thereafter provided, however, in good faith to completely cure the defaultno event shall such initial thirty (30) day period be extended more than an additional thirty (30) days;
(ivc) If An involuntary case under the federal bankruptcy law as now or hereafter constituted is commenced against Tenant, or under any other applicable federal or state bankruptcy, insolvency, reorganization, or other similar law, or there is filed against Tenant becomes a petition seeking the appointment of a receiver, liquidator or assignee, custodian, trustee, sequestrator (or similar official) of Tenant of any substantial part of Tenant’s property, or seeking the winding-up or liquidation of Tenant’s affairs and such involuntary case or petition is not dismissed within sixty (60) days after the filing thereof, of if Tenant commences a voluntary case or institutes proceedings to be adjudicated as bankrupt or insolvent or consents to the entry of an order for relief under the federal bankruptcy laws as now or hereafter constituted, or any other applicable federal or state bankruptcy or insolvency or other similar law, or consents to the appointment of or taking possession by a receiver or liquidator or assignee, trustee, custodian, sequestrator (or other similar official) of Tenant of any substantial part of Tenant’s property, or if Tenant makes a general any assignment for the benefit of creditors or offers a settlement admits in writing its inability to creditors, pay its debts generally as they become due or fails to generally pay its debts as they become due or if a petition Tenant is levied upon and is about to be sold out upon the Building by any sheriff, xxxxxxxx or constable or Tenant or its stockholders or Board of Directors or any committee thereof takes any action in bankruptcy contemplation, preparation or furtherance of or for reorganization any of the foregoing, or, if Tenant is a corporation and is dissolved or liquidated, Then, and upon the occurrence of an Event of Default, at the sole option of Landlord,
(i) The whole balance of rent and all other sums payable hereunder for an arrangement with creditors under any federal the entire balance of the Term but accelerated and thus due and payable only on a biennial basis, herein reserved or state law is filed agreed to be paid by or against Tenant, or any part of such rent, charges and other sums, shall be taken to be due and payable from Tenant and in arrears as if by the terms of this Lease said balance of rent, charges and other sums and expenses were on that date payable in advance but net of all rent actually received by Tenant from a bill reletting, if any; and/or
(ii) Landlord may terminate this Lease by written notice to Tenant. If Landlord elects to terminate this Lease, Landlord, in equity addition to Landlord’s other remedies, may recover from Tenant a judgment for damages equal to the sum of the following:
(A) the unpaid rent and other sums which became due up to the time of such termination plus interest from the dates such rent and other sums were due to the date of the judgment at the Lease Interest Rate; provided, however, Landlord may only accelerate unpaid rent for each biennial period as it occurs during the remaining Term of the Lease; plus
(B) the present value at the time of judgment of the amount by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment exceeds the amount of loss of such rental and other sums Tenant proves could have been reasonably avoided; plus Whenever Landlord shall have the right to reenter the Building, it shall have the right to remove all persons and property from the Building and either treat such property as abandoned or other proceeding at Landlord’s option store it in a public warehouse or elsewhere at the cost of and for the appointment account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. However Landlord hereby expressly agrees to subordinate in favor of a receiver for lender of Tenant any statutory and/or contractual lien it may have or seek to claim against Tenant’s personal property located at the Building. Attached hereto as Exhibit “I” is the form of Landlord’s Subordination and Consent (the “Landlord Consent”) which Landlord shall execute and deliver to Tenant upon request in favor of a lender of Tenant’s assets is commenced. Landlord agrees to reasonably consider modifications to the Landlord Consent requested by or on behalf of a secured party. Tenant waives the right to any notice to remove as may be specified in the Landlord and Tenant Act of Pennsylvania, Act of April 6, 1951, as amended, or if any similar or successor provision of law. For the purposes of computing “the whole balance of rent and all other sums payable hereunder for the entire balance of the real term of this Lease,” “the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment” and “the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment,” as such quoted or personal Premises any similar phrases are used in this Article 21, the amounts of Tenant additional rents which would have been due per year under this Lease shall be levied upon; provided such amounts as Landlord shall reasonably estimate to be the per annum rates of additional rent for the calendar year during which this Lease was terminated or during which rent was accelerated, increasing annually on the first day of each calendar year thereafter at the rate of four percent (4%) per annum compounded. The parties recognize that any proceeding brought by anyone other than no adequate remedy at law may exist for a breach of Articles 6, 7 and 10 hereof. Accordingly, Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu may obtain specific performance of any written notice required by provision of Articles 6, 7 and 10 hereof. Neither such right nor its exercise shall limit any applicable Lawsother remedies which Landlord may have against Tenant for a breach of such Articles, including, without limitation, all remedies available under this Article 21. The reference herein to specific performance in connection with Articles 6, 7 and 10 shall not preclude the availability of specific performance, in any notice required under California Code appropriate case, for the breach or threatened breach of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms other provision of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in Lease. In addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwiseherein, Landlord may (but shall have the following rights and remedies:
(i) Landlord, without any obligation not be obligated to do so), may elect to cure the any default on behalf of Tenant, in which event and Tenant shall reimburse Landlord upon demand for any sums paid or all costs incurred by Landlord (together with an administrative fee of 10% thereof) in curing the such 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, by breaking open locked doors if necessary, and remove all persons and all or any Premises, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Xxxxxx’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover any and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in the ordinary course of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any reasonable attorneys’ fees and all Laws now or hereafter in effect (includingother legal expenses, without limitation, California Civil Code Section 1951.2).
(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 recover as damages the worth, together with interest thereon at the time of any awardLease Interest Rate, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could costs and interest thereon shall be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank deemed additional rent hereunder. Also in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possessionaddition to, and Landlord may enforce all not in lieu of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure foregoing rights provided under this Lease, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice granted to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.:
Appears in 1 contract
Samples: Lease Agreement (MEDecision, 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 written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 aboveabove and Tenant does not void such Transfer within 10 days after the date that Landlord notifies Tenant in writing that Tenant is in violation of Section 18;
(iii) If Tenant fails to 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 default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 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 insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill 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 real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 10% 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 Following 24 hours prior telephonic notice to Tenant, to enter and repossess the PremisesPremises lawfully, by breaking open locked doors if necessarynecessary and lawful, and remove all persons and all or any Premisesproperty, by action at law or otherwiseotherwise in accordance with law, without being liable for prosecution or damages. Landlord may, at XxxxxxxxLandlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover To accelerate the whole or any part of the Rent for the balance of the Term, and all damages directly caused declare the same to be immediately due and payable (and, for purposes of acceleration of Annual Operating Expenses, the amount to be accelerated shall be based upon the assumption that Annual Operating Expenses for each Lease Year of the balance of the Term would be equal to the amount of Annual Operating Expenses which were payable by Xxxxxx’s failure to perform under this Lease, or which are likely Tenant in the ordinary course Lease Year immediately preceding the acceleration); provided, however, Tenant shall have the right, in any judicial proceedings brought to collect same, to assert a credit for the fair rental value of business the Premises for the balance of the Term (which Landlord shall have the right to defend against), the burden of proving such credit to be incurredon Tenant. The fair rental value of the Premises shall be net of the costs which would be reasonably incurred by Landlord in re-leasing the Premises, including, including without limitation, all damages reasonable demolition and fit-out costs, brokerage commissions and legal fees and expenses. The accelerated amount determined to which be payable to Landlord is entitled hereunder shall be reduced to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).present value at the rate of 6% per annum at the time of actual payment;
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.and
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that Notwithstanding anything to the contrary in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or Landlord shall use commercially reasonable efforts to re-let relet the Premises or the appointment of a receiver upon initiative of Landlord in order to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possessionmitigate its damages hereunder.
(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 any monetary default provided in Section 22(a22(a)(i) above for any default in the payment of Rent more than three times twice in any consecutive 12-month period, and thereafter during the balance of such consecutive 12-month period Landlord may declare an Event of Default for failure to pay Rent without affording Tenant any of the notice and cure rights provided under Section 22(a)(i) of this Lease, and ; (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b)(i) in the event of an emergency that constitutes an imminent danger to persons or property or which requires emergency repairs to the Premises; (iii) only an additional 10 business day notice to Tenant shall be required by Landlord prior to Landlord exercising its rights under Section 22(b) if Tenant fails to comply discharge any lien or claim in accordance with Section 13 during the provisions 15 day cure period provided in Section 13; and (iv) if Tenant fails, during the 15 day time period provided in Section 20, to (A) execute, acknowledge and deliver to Landlord an estoppel certificate, or (B) furnish to Landlord, Landlord’s Mortgagee, prospective Mortgagee and/or prospective purchaser reasonably requested financial information (provided, however, if Tenant (or Tenant’s parent company with whom Tenant files consolidated financial statements) is a publicly traded entity, publicly available information of Sections 13Tenant (or Tenant’s parent company with whom Tenant files consolidated financial statements) shall be sufficient), 20 or 27 or in then Landlord shall only be required to give Tenant an emergencyadditional 5 business day notice prior to Landlord exercising its rights under Section 22(b).
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts Despite Landlord’s duty to mitigate in accordance with Section 22(b)(v), efforts by Landlord to mitigate the damages caused by XxxxxxTenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by lawlaw unless it so expressly provides, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery and other litigation costs, and any including costs of appeal.
(f) Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
(g) When this Lease and the Term or any extension thereof shall have been terminated on account of any monetary default or material non-monetary default (which includes, but is not limited to, any inability by Landlord to sell or refinance the Premises due to Tenant’s failure to timely execute, acknowledge and deliver to Landlord an estoppel certificate as set forth in Section 20) by Tenant which has continued beyond any applicable notice and cure periods provided in this Lease, or when the Term or any extension thereof shall have expired, Tenant hereby authorizes any attorney of any court of record of the Commonwealth of Pennsylvania, upon an additional 10 business days prior written notice to Tenant, to appear for Tenant and for anyone claiming by, through or under Tenant and to confess judgment against all such parties, and in favor of Landlord, in ejectment and for the recovery of possession of the Premises, for which this Lease or a true and correct copy hereof shall be good and sufficient warrant. AFTER THE ENTRY OF ANY SUCH JUDGMENT A WRIT OF POSSESSION MAY BE ISSUED IN ACCORDANCE WITH THE PENNSYLVANIA RULES OF CIVIL PROCEDURE. If for any reason after such action shall have been commenced it shall be determined and possession of the Premises remain in or be restored to Tenant, Landlord shall have the right for the same default and upon any subsequent default(s) or upon the termination of this Lease or Tenant's right of possession as herein set forth, to again confess judgment as herein provided, for which this Lease or a true and correct copy hereof shall be good and sufficient warrant.
(h) The warrant to confess judgment set forth above shall continue in full force and effect and be unaffected by amendments to this Lease or other agreements between Landlord and Tenant even if any such amendments or other agreements increase Tenant's obligations or expand the size of the Premises.
Appears in 1 contract
Samples: Lease Agreement (Zulily, 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 written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, and Tenant fails to cure the default on or before the date that is 30 21 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 21 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 60 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 21 days following Landlord’s notice and continues diligently in good faith to completely cure the default;; or
(iviii) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a bill 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 real or personal Premises property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, 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 1015% 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, by breaking open locked doors if necessary, and remove all persons and all or any Premisesproperty, by action at law or otherwisein accordance with applicable law, without being liable for prosecution or damages. Landlord may, at XxxxxxxxLandlord’s option, make reasonable Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for XxxxxxTenant’s account. Xxxxxx Tenant agrees to pay to Landlord on demand any deficiency (taking into account all reasonable costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover any In connection with a termination of the Lease only, to accelerate the Rent for the balance of the Term, and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in declare the ordinary course of business same to be incurredimmediately due and payable, provided that such accelerated Rent shall be reduced by the fair market value of the Premises (less costs reasonably anticipated by Landlord in connection with such reletting including, without limitationbut not limited to, all damages brokerage commissions and necessary alterations to which Landlord is entitled the Premises) and discounted to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).present value at the rate of 4% per annum; and
(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 recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the awardTerm.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(c) Any provision to the contrary in this Section 22 notwithstanding, notwithstanding (i) Landlord shall not be required to give Tenant the notice and opportunity to cure any monetary default provided in Section 22(a22(a)(i) above more than three times twice in any consecutive 12-month period, and thereafter in connection with any late payment within such 12-month period, Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b22(b)(i) if Tenant fails to comply with the provisions of Sections 13, 13 or 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord makes to mitigate the damages caused by XxxxxxTenant’s default default, if any, shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert investigation expenses and consulting fees incurred in such legal actiondiscovery costs, and any including costs of appeal.
(f) Landlord and Xxxxxx Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
(g) Landlord shall not exercise any remedies otherwise available to Landlord under this Lease and/or at law or in equity without having given Tenant the notices and allowed the cure periods expressly in Section 22(a) above (except as provided in Section 22(c). Landlord’s right to accelerate rent shall be limited to the provision of Section 22(b)(iii). Any eviction or detainer action by Landlord with respect to Tenant’s right to use the Premises, shall be conducted in accordance with proper statutory procedures.
(h) Landlord shall use commercially reasonable efforts to mitigate its damages resulting from an Event of Default by Tenant under this Lease. Landlord’s obligation to mitigate damages after a default by Tenant under this Lease shall be satisfied in full if Landlord undertakes to lease the Premises to another tenant (a “Substitute Tenant”) in accordance with the following criteria:
(i) Landlord shall have no obligation to solicit or entertain negotiations with any other prospective tenants for the Premises until Landlord obtains full and complete possession of the Premises including, without limitation, the final and unappealable legal right to relet the Premises free of any claim of Tenant.
(ii) Landlord shall not be obligated to offer the Premises to a prospective tenant when other premises in the Building suitable for that prospective tenant’s use are (or soon will be) available.
(iii) Landlord shall not be obligated to enter into a new lease under terms and conditions that are unacceptable to Landlord under Landlord’s then current reasonable leasing policies for comparable space in the Building.
(iv) Landlord shall not be obligated to enter into a lease with any proposed tenant whose use would: (i) disrupt the tenant mix or balance of the Building; (ii) violate any restriction, covenant, or requirement contained in the lease of another tenant of the Building; (iii) adversely affect the reputation of the Building; or (iv) be incompatible with the operation of the Building as a first-class building.
(v) Landlord shall not be obligated to enter into a lease with any proposed Substitute Tenant which does not have, in Landlord’s reasonable opinion, sufficient financial resources to operate the Premises in a first-class manner.
(vi) Landlord shall not be required to expend any amount of money to alter, remodel, or otherwise make the Premises suitable for use by a proposed Substitute Tenant unless:
1) Tenant pays any such sum to Landlord in advance of Landlord’s execution of a Substitute Lease with such Substitute Tenant (which payment shall not be in lieu of any damages or other sums to which Landlord may be entitled as a result of Tenant’s default under this Lease); or
2) Landlord, in Landlord’s reasonable business discretion, determines that any such expenditure is financially justified in connection with entering into any such Substitute Lease. Upon compliance with the above criteria regarding the releasing of the Premises after an Event of Default by Tenant, Landlord shall be deemed to have fully satisfied Landlord’s obligation to mitigate damages under this Lease and under any law or judicial ruling in effect on the date of this Lease or at the time of Tenant’s default, and Tenant waives and releases, to the fullest extent legally permissible, any right to assert in any action by Landlord to enforce the terms of this Lease, any defense, counterclaim, or rights of setoff or recoupment respecting the mitigation of damages by Landlord, unless and to the extent Landlord maliciously or in bad faith fails to act in accordance with the requirements of this Section 22(h).
Appears in 1 contract
Defaults Remedies. If any of the following (an “Event of Default”) shall occur:
(a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all installments of rent (whether Fixed Rent andor additional rent) or any other charge or payment whether or not herein included as rent, except as provided in Section 22(cand such failure shall continue for a period of five (5) below, Tenant fails to cure such default on or before the date that is 5 days after Landlord gives Tenant following written notice of defaultprovided, however, Landlord shall not be obligated to give written notice more frequently than two times during any twelve (12) month period;
(iib) If Tenant enters into violates or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches comply with any other provision of this Leasenon-monetary covenant, and, except as provided in Section 22(cagreement or condition herein contained within fifteen (15) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant written notice of default; from Landlord, provided, however, if the nature of the default canis one that is not reasonably be cured susceptible to cure within 30 days following Landlord’s giving of noticefifteen (15) days, Tenant shall not be afforded additional reasonable time (not to exceed 60 days following Landlord’s notice) to cure the in default if Tenant begins so long as it commences to cure the default within 30 fifteen (15) days following after written notice from Landlord and thereafter diligently pursues such cure and completes the same within sixty (60) days after the date of Landlord’s notice and continues diligently in good faith to completely cure the defaultnotice;
(ivc) If Tenant becomes abandons the Premises or removes or attempts to remove Tenant’s property therefrom other than in the ordinary course of business without having first paid to Landlord in full all rent and charges that may have become due as well as all which will become due thereafter provided, however, Tenant may vacate the Premises following ten (10) days prior written notice to Landlord so long as Tenant thereafter continues to observe and fulfill all of its obligations under this Lease; or
(d) An involuntary case under the federal bankruptcy law as now or hereafter constituted is commenced against Tenant or the Guarantor, or under any other applicable federal or state bankruptcy, insolvency, reorganization, or other similar law, or there is filed against Tenant or a Guarantor a petition seeking the appointment of a receiver, liquidator or assignee, custodian, trustee, sequestrator (or similar official) of Tenant or a Guarantor of any substantial part of Tenant’s or a Guarantor’s property, or seeking the winding-up or liquidation of Tenant’s or a Guarantor’s affairs and such involuntary case or petition is not dismissed within sixty (60) days after the filing thereof, of if Tenant or a Guarantor commences a voluntary case or institutes proceedings to be adjudicated as bankrupt or insolvent or consents to the entry of an order for relief under the federal bankruptcy laws as now or hereafter constituted, or any other applicable federal or state bankruptcy or insolvency or other similar law, or consents to the appointment of or taking possession by a receiver or liquidator or assignee, trustee, custodian, sequestrator (or other similar official) of Tenant or a Guarantor of any substantial part of Tenant’s or a Guarantor’s property, or if Tenant or any Guarantor makes a general any assignment for the benefit of creditors or offers a settlement admits in writing its inability to creditors, pay its debts generally as they become due or fails to generally pay its debts as they become due or if a petition Tenant is levied upon and is about to be sold out upon the Premises by any sheriff, xxxxxxxx or constable or Tenant or its stockholders or Board of Directors or any committee thereof takes any action in bankruptcy contemplation, preparation or furtherance of or for reorganization any of the foregoing, or, if Tenant or any Guarantor is a corporation and is dissolved or liquidated, Then, and in any such event, at the sole option of Landlord,
(i) The whole balance of rent and all other sums payable hereunder for an arrangement with creditors under any federal the entire balance of the term of this Lease, herein reserved or state law is filed agreed to be paid by or against Tenant, or any part of such rent, charges and other sums, shall be taken to be due and payable from Tenant and in arrears as if by the terms of this Lease said balance of rent, charges and other sums and expenses were on that date payable in advance; and/or
(ii) Landlord may terminate this Lease by written notice to Tenant. If Landlord elects to terminate this Lease, Landlord, in addition to Landlord’s other remedies, may recover from Tenant a bill in equity or judgment for damages equal to the sum of the following:
(A) the unpaid rent and other proceeding sums which became due up to the time of such termination plus interest from the dates such rent and other sums were due to the date of the judgment at the Lease Interest Rate; plus
(B) the present value at the time of judgment of the amount by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment exceeds the amount of loss of such rental and other sums Tenant proves could have been reasonably avoided; plus
(C) the amount (as discounted at the rate of six percent (6%) per annum) by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the appointment balance of a receiver the term after the date of judgment exceeds the amount of loss of such rental and other sums that Tenant proves could have been reasonably avoided; plus
(D) any other amount necessary to compensate Landlord for any of all the detriment proximately caused by Tenant’s assets is commenced, failure to perform its obligations under this Lease or if any of which in the real or personal Premises of Tenant shall ordinary course would be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant likely to this Section 22(a) is in lieu of any written notice required by any applicable Laws, result therefrom including, without limitation, any notice required under California Code the cost of Civil Procedure Section 1161repairing the Premises and reasonable attorneys fees; or,plus
(vE) If at Landlord’s election, such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable law. As used in the foregoing clause (B), the “present value at the time of judgment” shall be computed by adding to the rent past due or which would have become due interest at the Lease Interest Rate from the dates such rent was or would have become due to the date of the judgment; and/or
(iii) Landlord may terminate Tenant’s right of possession and may reenter and repossess the Premises by legal proceedings, without terminating this Lease. After reentry or retaking or recovering of the Premises, whether by termination of this Lease or not, Landlord may, but shall be under no obligation to, make such alterations and repairs, as Landlord may deem then necessary or advisable 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 period which otherwise would 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 sole discretion may seem advisable and to such person or persons as may in Landlord’s sole discretion seem best; and whether or not the Premises are relet, Tenant abandons shall be liable for any loss, for such period as is or vacates would have been the Property balance of the term of this Lease, of rent and all other sums payable under this Lease, plus the cost and expenses of reletting and of redecorating, remodeling or making repairs and alterations to the Premises for the purpose or reletting, the amount of such liability to be computed monthly and to be paid by Tenant to Landlord from time to time upon demand. Landlord shall in no event be liable for, nor shall any damages or other sums to be paid by Tenant to Landlord be reduced by, failure to relet the Premises or failure to collect the rent or other sums from any reletting. Tenant shall not be entitled to any rents or other sums received by Landlord in excess of five (5) business days at a time, without making provisions those provided for securityin this Lease. Tenant waives agrees that Landlord may file suit to recover any right to notice Tenant may have rent and other sums falling due under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice Article from time to time and that no suit or recovery of any amount due hereunder to Landlord shall be any defense to any subsequent action brought for any other amount due hereunder to Landlord. Tenant, for Tenant and Tenant’s successors and assigns, hereby irrevocably constitutes and appoints Landlord, as required by said Section 1951.3.
(b) If Tenant’s and their agent to collect the rents due or to become due under all subleases of the Premises or any parts thereof following the occurrence of an Event of Default occurs, without in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, Landlord shall have the following rights and remedies:
(i) Landlord, without any way affecting Tenant’s obligation to do so, may elect to cure the default on behalf pay any unpaid balance 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 10% 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, by breaking open locked doors if necessary, and remove all persons and all rent or any Premises, by action at law other sum due or otherwise, without being liable for prosecution or damagesto become due hereunder. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or Notwithstanding any part(s) of the Premises for Xxxxxx’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Leasetermination, Landlord may at any time thereafter elect to terminate this Lease for such Tenant’s previous breach;
. Whenever Landlord shall have the right to reenter the Premises, it shall have the right to remove all persons and property from the Premises and either treat such property as abandoned or at Landlord’s option store it in a public warehouse or elsewhere at the cost of and for the account of Tenant pursuant to appropriate legal process, unless Tenant has abandoned the Premises, and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. Tenant waives the right to any notice to remove as may be specified in the Landlord and Tenant Act of Pennsylvania, Act of April 6, 1951, as amended, or any similar or successor provision of law. For the purposes of computing “the whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease,” “the unpaid rent and other sums which would have become due (iiihad this Lease not been terminated) after termination until the date of the judgment” and “the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment,” as such quoted or any similar phrases are used in this Article 21, the amounts of additional rents which would have been due per year under this Lease shall be such amounts as Landlord shall reasonably estimate to be the per annum rates of additional rent for the calendar year during which this Lease was terminated or during which rent was accelerated. The parties recognize that no adequate remedy at law may exist for a breach of Articles 6, 7 and 10 hereof. Accordingly, Landlord may recover obtain specific performance of any provision of Articles 6, 7 and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or 10 hereof. Neither such right nor its exercise shall limit any other remedies which are likely in the ordinary course Landlord may have against Tenant for a breach of business to be incurredsuch Articles, including, without limitation, all damages remedies available under this Article 21. The reference herein to which specific performance in connection with Articles 6,7 and 10 shall not preclude the availability of specific performance, in any appropriate case, for the breach or threatened breach of any other provision of this Lease. In addition to other remedies available to Landlord is entitled herein, Landlord may (but shall not be obligated to recover under do so), cure any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).
(iv) To terminate this Lease and the Term without any right default on the part behalf of Tenant to save following the forfeiture by payment occurrence of any sum due or by other performance an Event of any condition, term or covenant broken; and recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possessionDefault, and Tenant shall reimburse Landlord may enforce upon demand for all of its rights and remedies under this Leasecosts incurred by Landlord in curing such default, including, without limitation, reasonable attorneys’ fees and other legal expenses, together with interest thereon at the right to recover Rent as it becomes due under this LeaseLease Interest Rate, which costs and interest thereon shall be deemed additional rent hereunder. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(c) Any provision Notwithstanding anything to the contrary contained herein, neither party shall be liable for indirect, consequential, exemplary or punitive damages. Landlord hereby waives any lien or right of distress or distraint, security interest or Landlord’s lien with respect to any property of Tenant within the Premises. Also in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure any monetary default provided in Section 22(a) above more than three times in any consecutive 12-month periodaddition to, and thereafter Landlord may declare an Event not in lieu of Default without affording Tenant any of the notice foregoing rights granted to Landlord; As used in this Article 21, the “term” shall include the Term of this Lease and cure rights provided under this Lease, and (ii) Landlord shall not be required any renewals or extensions thereof to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by which Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, 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 payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent due, or Landlord’s right to pursue any other available remedyhave become bound.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Samples: Lease Agreement (Ym Biosciences Inc)
Defaults Remedies. (a) It 21.01. The occurrence of any one or more of the following events shall be an Event constitute a default and breach of Defaultthis lease by Tenant:
A. Failure to pay rent or any other required payment when due, if the failure continues for five (i5) 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 days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails has been given to 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 default on or before the date that is 30 days after Landlord gives Tenant notice of defaultTenant; provided, however, if that any such notice shall be in lieu of, and not in addition to, any notice required under Section 1161, et seq., of the California Code of Civil Procedure;
B. Abandonment of the premises;
C. The failure by Tenant to observe or perform any other covenants, conditions or provisions of this lease to be observed or performed by Tenant where (except where a different period of time is specified in this lease) such failure shall continue for a period of thirty (30) days after written notice thereof from Landlord to Tenant; provided, however, that any such notice shall be in lieu of, and not in addition to, any notice required under Section 1161, et seq., of the California Code of Civil Procedure. If the nature of Tenant's default cannot is such that more than thirty (30) days is reasonably be cured within 30 days following Landlord’s giving of noticerequired for its cure, then Tenant shall not be afforded additional reasonable time (not deemed to exceed 60 days following Landlord’s notice) to cure the be in default if Tenant begins commences such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to cure completion;
D. The filing or occurrence of:
(1) a petition in bankruptcy by or against the default Tenant, unless cured or removed within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the defaultsixty (60) days;
(iv2) If a petition or answer by Tenant becomes insolvent seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution or makes other relief of the same or different kind under any provision of the Bankruptcy Act;
(3) adjudication of Tenant as a general bankrupt or insolvent;
(4) an assignment of all or substantially all of Tenant's assets for the benefit of creditors or offers a settlement to creditors, or if ;
(5) a petition in bankruptcy or for reorganization other proceeding, except by Landlord, its agents or for an arrangement with creditors under any federal or state law is filed affiliates, by or against Tenant, for, or the appointment of, a bill trustee, receiver, or liquidator of Tenant with respect to all or substantially all of its property; provided, however, that Tenant shall not be in equity default if Tenant cures or removes such a petition or proceeding within sixty (60) days;
(6) a petition or other proceeding by or against Tenant for the appointment of a receiver for any of Tenant’s assets is commencedits dissolution or liquidation, or if any the taking of possession of the real property of Tenant by any governmental authority in connection with dissolution or personal Premises liquidation, provided, however, that Tenant shall not be in default if Tenant cures or removes such a petition or proceeding within sixty (60) days;
(7) the taking or attachment by any person, except by Landlord or its agents or affiliates, of the leasehold created hereby or any part thereof upon execution, or other process of law or equity; or
(8) the general failure of Tenant to pay its debts as they become due, as such phrase is construed in connection with 11 U.S.C. Section 303(h)(1).
E. Except during such periods as renovations or reconstruction is in active progress, or as the premises are rendered unsafe or unusable, failure to make use of the premises for more than forty-five (45) days in any ninety (90) day period.
21.02. Notices given under Section 21.01 above shall specify the alleged default and the applicable lease provisions, and shall demand that Tenant perform the provisions of this lease or pay the rent that is in arrears, as the case may be, within the applicable period of time, or quit the premises. No such notice shall be deemed a forfeiture or a termination of this lease unless Landlord specifically so elects in the notice.
21.03. Landlord shall have the following remedies without further notice to Tenant if Tenant commits a default. These remedies are not exclusive; they are cumulative and in addition to any remedies now or later allowed by law:
A. Landlord can continue this lease in full force and effect, and the lease will continue in effect as long as Landlord does not terminate Tenant's right to possession, and Landlord shall have the right to collect rent when due. During the period Tenant is in default, Landlord can enter the premises and relet them, or any part of them, to third parties for Tenant's account. Tenant shall be levied upon; provided that any proceeding brought by anyone other than liable immediately to Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is all costs Landlord incurs in lieu of any written notice required by any applicable Lawsreletting the premises, including, without limitation, any notice brokers' commissions, expenses of remodeling the premises required under California Code by the reletting, and like costs. Reletting can be for a period shorter or longer than the remaining term of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for securitythis lease. Tenant waives shall pay to Landlord the rent due under this lease on the dates the rent is due, less the rent Landlord receives from any reletting. No act by Landlord allowed by this section shall terminate 28 this lease unless Landlord notifies Tenant that Landlord elects to terminate this lease.
B. Landlord can terminate Tenant's right to notice Tenant may have under Section 1951.3 possession of the California Civil Code, premises at any time. No act by Landlord other than the terms giving of this Section 22(a)(v) being deemed such written notice to Tenant as required by said Section 1951.3.
(b) If an Event shall terminate this lease. Acts of Default occursmaintenance, in addition efforts to all other rights and remedies available relet the premises, or the appointment of a receiver on Landlord's initiative to Landlord at law, in equity, by statute or otherwiseprotect Landlord's interest under this lease shall not constitute a termination of Tenant's right to possession. On termination, Landlord shall have has the following rights and remediesright to recover from Tenant:
(i1) 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 10% 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, by breaking open locked doors if necessary, and remove all persons and all or any Premises, by action at law or otherwise, without being liable for prosecution or damages. Landlord may, at Xxxxxxxx’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Xxxxxx’s account. Xxxxxx agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) Landlord may recover any and all damages directly caused by Xxxxxx’s failure to perform under this Lease, or which are likely in the ordinary course of business to be incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).
(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 recover as damages the The worth, at the time of any awardthe award of the unpaid rent that had been earned at the time of termination of this lease;
(2) The worth, at the time of the award of the amount by which the unpaid Rent for rent that would have been earned after the balance date of the Term after termination of this lease until the time of the award exceeds the amount of the rental loss of rent that the Tenant proves could be have been reasonably avoided;
(3) The worth, discounting at the aggregate of such amounts to present value at one percent (1%) more than the discount rate time of the Federal Reserve Bank in San Francisco in effect award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided; and
(4) Any other amount, including court costs and attorneys' fees, necessary to compensate Landlord for all detriment proximately caused by Tenant's default. "The worth, at the time of the award.
," as used in (v1) In accordance with California Civil Code Section 1951.4 and (or any successor statute)2) of this paragraph B is to be computed by allowing interest at that rate equal to the average weighted discount rate applied by the Federal Reserve Bank of San Francisco during the time period in question, Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premisesplus 1%, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord may enforce all of its rights and remedies under this Lease, including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interests under this Lease shall not constitute a termination of Tenant’s right to possession
(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 any monetary default provided in Section 22(a) above more than three times 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, and (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 Sections 13, 20 or 27 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a 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 rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Xxxxxx’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or maximum amount allowed by law, whichever is less. "The worth, at the time of the award,"as referred to in (3) of this paragraph B is to be computed by discounting the amount at the discount rate applied by the Federal Reserve Bank of San Francisco at the time of the award, plus 1%.
21.04. Landlord, at any time after Tenant commits a default, may, but each is under no obligation to, cure the default at Tenant's cost. If Landlord at any time, by reason of Tenant's default, pays any sum or does any act that requires the payment of any sum, the sum paid by Landlord shall be cumulative and in addition due immediately from Tenant to every other right or remedy given herein or now or hereafter existing Landlord at law or in equity. No payment the same time the sum is paid and, if paid at a later date, shall bear interest from the date the sum is paid by Landlord until Landlord is reimbursed by Tenant or receipt or acceptance at that rate equal to the weighted average discount rate applied by Landlord the Federal Reserve Bank of a lesser amount than San Francisco during the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment 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 Rent duerelevant time period plus 1%, or Landlord’s right to pursue any other available remedythe maximum amount allowed by law, whichever is less.
(e) If either party commences an action or commences arbitration 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 its attorneys’ fees, costs of suit, expert and consulting fees incurred in such legal action, and any appeal.
(f) Landlord and Xxxxxx waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Samples: Office Lease (Harbor Bancorp /)
