Events of Default Remedies. a) The following events shall be deemed to be events of default by Tenant under this Lease: (i) Tenant shall fail to pay any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:; (ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default; (iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant; (iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days; (v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws; (vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx) (xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or (viii) The adjudication of Tenant as a bankruptor; or (ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above. b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies: (i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means; (ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent. (iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and (iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy. c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion. d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord. e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Office Lease Agreement (Manchester Equipment Co Inc)
Events of Default Remedies. a) The If any of the following events shall occur and be deemed to be events of default by Tenant under this Leasecontinuing:
(i) Tenant The Company or any Subsidiary shall fail to pay when due any amount payable to Obligee hereunder or under any other Transaction Document; or
(b) Any representation or warranty made or deemed made by the Company or any of its Subsidiaries herein or in any other Transaction Document or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with this Agreement shall prove to have been incorrect in any material respect on or as of the date made or deemed made; or
(c) The Company shall default in the observance or performance of any agreement contained in Section 7; or
(d) The Company or any Subsidiary shall default in the observance or performance of any other agreement contained in this Agreement (other than as provided in paragraphs (a) through (c) of this Section) or in any other Transaction Document, and such default shall continue unremedied for a period of thirty (30) days; or
(e) The Company shall fail to pay any Rent obligations under the Foothill Loan Documents or any other sums principal of money due hereunder or interest on any Unsecured Cash Flow Notes (whether at scheduled maturity or by required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such obligation under the Foothill Loan Documents or any Unsecured Cash Flow Notes; or
(f) Any Foothill Debt or any Unsecured Cash Flow Notes shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof; or
(g) Any Subsidiary of the Company shall fail to pay any principal of, or interest on, any Indebtedness or any Guarantee Obligation (other than any Guarantee Obligation created pursuant to any Transaction Document) in excess of $1,000,000, when due and payable (whether at scheduled maturity or by required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument under which such Indebtedness or Guarantee Obligation was created and, if such agreement or instrument permits the acceleration of the maturity of such Indebtedness or Guarantee Obligation as a result of such failure, such Indebtedness or Guarantee Obligation shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof; or any such Indebtedness or Guarantee Obligation shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity; or
(h) The Company shall (i) default in any payment of principal of or interest on any Indebtedness (other than the Secured Instrument, the Foothill Debt, or any Unsecured Cash Flow Notes) or in the payment of any Guarantee Obligation in excess of $1,000,000, beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness or Guarantee Obligation was created; or (ii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or Guarantee Obligation or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or such Guarantee Obligation to become payable; or
(i) The Company or any of its Subsidiaries shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its assets, or the Company or any of its Subsidiaries shall make a general assignment for the benefit of its creditors, or (ii) there shall be commenced against the Company or any of its Subsidiaries any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of ten (10) days after the date such Rent 60 days, or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised there shall be taken on execution commenced against the Company or any of its Subsidiaries any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of law its assets which results in the entry of an order for any action against Tenant;
such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof, or (iv) Tenant the Company or any of its Subsidiaries shall fail to promptly move intotake any action in furtherance of, take possession of and operate or indicating its business on the Premises when the Premises are ready for occupancy consent to, approval of, or shall cease to do business in or vacate or abandon acquiescence in, any substantial portion of the Premises for more than ten acts set forth in clauses (10i), (ii), or (iii) consecutive days;
above, or (v) Tenant the Company or any of its Subsidiaries shall become insolvent generally not, or shall be unable to to, or shall admit in writing its inability to, pay its debts as they become due, Tenant files a petition provided that the Company or any of its Subsidiaries may admit in bankruptcy or writing that it is "insolvent" as such term is defined in, and for reorganization under purposes of, Section 108(a)(1)(8) of the bankruptcy laws or an admission, answer or other responsive pleading consenting toCode, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes the Company or any of its Subsidiaries shall cause to be reinstated the Reorganization Proceedings; or
(j) The Confirmation Order shall be reversed, withdrawn, modified (in any manner adverse to the Company or any of its Subsidiaries), or any rehearing shall be ordered with respect thereto by the Bankruptcy Court or by any court having jurisdiction over the Company; or
(i) There occurs one or more events or conditions described in Section 4.12 which individually or in the aggregate result in liability of the Company or any Commonly Controlled Entity in excess of $4,600,000; or the present value of all accrued benefits under each Single Employer Plan (based on the reasonable assumptions used by the independent actuary for such Plan for purposes of establishing the minimum funding requirements under Section 412 of the Code), as of the last annual valuation date, exceed the value of the assets of such plan allocable to such accrued benefits, individually or in the aggregate for all Single Employer Plans with respect to which the value of the assets exceed the present value of the accrued benefits, by more than $4,600,000; or
(l) One or more judgments or decrees shall be entered against the Company or any of its Subsidiaries involving in the aggregate a liability (not paid or fully covered by insurance) of $500,000 or more in the case of the Company or any of its Subsidiaries and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or
(i) Any Subsidiary Guaranty or any Security Document shall cease, for any reason, to be in full force and effect or the Company or any of its Subsidiaries, as the case may be, party thereto shall so assert in writing, or (ii) any Security Document shall cease to be effective to grant a perfected Lien on the collateral described therein with the priority purported to be created thereby (other than as a result of any action or inaction on the part of the Obligee or their agents or bailees or other than with respect to Col- lateral having an assignment for aggregate value of $100,000 or less); or
(n) Other than the benefit Obligee or any Affiliate of creditorsthe Obligee and any Person acting in concert with the Obligee or any Affiliate of the Obligee, any Person that is not a transferee of the Obligee or of any Affiliate of the Obligee or two or more such Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization Securities and Exchange Commission under the bankruptcy lawsSecurities Exchange Act of 1934, the adjudication as amended) of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one % or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder outstanding Capital Stock of the existing term (and any applicable extension Company, or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end fewer than three members of the initial term and any renewal term, if applicable, Board of Directors of the Company shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more a designee of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable lawObligee, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or than as a result of the breach Obligee's failure to nominate a successor to a designee who has resigned or been removed for cause; or
(o) Any event or change shall occur that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect; or
(p) The Total Unsecured Claims shall exceed $1.5 Billion; or
(q) The Company or Special Subsidiary shall default in the observance or performance of any promise agreement contained in Section 3.7; then, and in any such event: (A) if such event is an Event of Default specified in clause (i), (ii), (iv), (v) or inducement hereof(vi) of Section 8.1(i) above, whether automatically the entire amount of the Secured Instrument and all other amounts owing under this Agreement and the Secured Instrument shall immediately become due and payable in this Lease full, which amount shall accrue interest or elsewhere. Tenant hereby waives such dividends, as applicable, at the Default Rate as well before as after judgment, and the Obligee and Collateral Agent shall have all rights and remedies given to the Obligee and Collateral Agent pursuant to the Security Documents and all rights of termination a secured party, mortgagee and rescission pledgee under applicable law, all of which rights and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants thatcumulative and non-exclusive, prior to the exercise extent permitted by law; and (B) if such event is any other Event of any such remediesDefault, it will give the mortgagees on the Property written Obligee may, by notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything default to the contrary contained hereinCompany, nothing shall prevent Tenant from maintaining or asserting any declare the entire amount of the foregoing remedies (or any Secured Instrument and all other remedy) in a proceeding instituted by either party to enforce that party's rights amounts owing under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause Agreement and the Secured Instrument to be due and payable in full, which amount shall accrue interest or dividends, as applicable, at the Default Rate as well before as after judgment, and the Obligee and Collateral Agent shall have all rights and remedies given to the Obligee and Collateral Agent pursuant to the Security Documents and all rights of action versus Landlorda secured party, mortgagee and pledgee under applicable law, all of which rights and remedies shall be cumulative and non-exclusive, to the extent permitted by law.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. (a) The following events shall be deemed to be events of default by Tenant under this Lease:
(i) Tenant shall fail to pay within five days of the due date any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent Base Rental or other sums is due rent payable by Tenant to Landlord under this Lease (with no notice being required of Landlord); hereinafter sometimes referred to as a "Monetary Default:;MONETARY DEFAULT").
(ii) Any failure by Tenant (other than a Monetary Default) to comply with any term, provision or covenant of this Lease, which failure is not cured within twenty (20) days after delivery to Tenant of notice of the occurrence of such failure or if such failure is not reasonably susceptible of being cured within such twenty (20) day period, Tenant shall fail to comply with any other Non-Monetary provision of this Lease commence the curing thereof within such twenty (20) day period, or any other agreement between Landlord and Tenanthaving commenced the curing thereof, if applicable, after Landlord has provided thirty (30) days prior written notice Tenant shall fail to diligently pursue the curing of such Non-Monetary Default and Tenant has failed default with reasonable diligence to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;completion.
(iii) Tenant or any Guarantor shall become insolvent, or shall make a transfer in fraud of creditors, or shall commit an act of bankruptcy or shall make an assignment for the benefit of creditors, or Tenant or any Guarantor shall admit in writing its inability to pay its debts as they become due.
(iv) Tenant or any Guarantor shall file a petition under any section or chapter of the United States Bankruptcy Code, as amended, pertaining to bankruptcy, or under any similar law or statute of the United States or any State thereof, or Tenant or any Guarantor shall be adjudged bankrupt or insolvent in proceedings filed against Tenant or any Guarantor thereunder; or a petition or answer proposing the adjudication of Tenant or any Guarantor as a bankrupt or its reorganization under any present or future federal or state bankruptcy or similar law shall be filed in any court and such petition or answer shall not be discharged or denied within sixty (60) days after the filing thereof.
(v) A receiver or trustee shall be appointed for all or substantially all of the assets of Tenant or any Guarantor or of the Premises or of any of Tenant's property located thereon in any proceeding brought by Tenant or any Guarantor, or any such receiver or trustee shall be appointed in any proceeding brought against Tenant or any Guarantor and shall not be discharged within sixty (60) days after such appointment or Tenant or such Guarantor shall consent to or acquiesce in such appointment.
(vi) The leasehold estate hereunder demised shall be taken on execution or other process of law in any action against Tenant;.
(ivvii) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in abandon or vacate or abandon any substantial portion of the Premises without the prior written permission of Landlord for more a period longer than ten 365 consecutive days during the Lease Term. If Tenant or any other person acting on Tenant's behalf has removed, is removing or has made preparations to remove (10other than in the normal course of business) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become duegoods, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admissionequipment, answer fixtures or other responsive pleading consenting toproperty from the Premises in amounts substantial enough to indicate a probable intent to abandon or vacate the Premises without the prior written permission of Landlord, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning Tenant's abandonment of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian Premises shall be deemed conclusively established for all or a substantial part purposes. The provisions of its property; or SpanishRiverthe foregoing sentence shall supersede the provisions of the Texas Property Code.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication Tenant shall fail to take possession of Tenant and occupy the Premises within sixty (60) days following the Commencement Date and thereafter continuously conduct its operations in the Premises for the Permitted Use as a bankruptor; orset forth in Paragraph 4 hereof.
(ix) The liquidation, termination, dissolution, forfeiture of right to do business or death of Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 aboveGuarantor.
(b) Upon the occurrence of any event or events of default or other breach of under this Lease by TenantLease, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:remedies without any notice (except as expressly prescribed herein) or demand for possession whatsoever (and without limiting the generality of the foregoing, Tenant hereby specifically waives notice and demand for payment of rent or other obligations due and waives any and all other notices or demand requirements imposed by applicable law):
(i) Terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to surrender the Premises upon termination of the Lease hereunder, Landlord shall may without prejudice to any other remedy which it may have for possession or arrearages in rent, enter upon and take possession of the rightPremises and expel or remove Tenant and any other person who may be occupying said Premises, at its electionor any part thereof, by force, if necessary, without being liable for prosecution or any claim of damages therefor, and Tenant hereby agrees to pay to Landlord on demand the amount of all loss and damage which Landlord may suffer by reason of such termination, whether through inability to relet the Premises on satisfactory terms or otherwise, specifically including but not limited to all Costs of Reletting (hereinafter defined) and any deficiency that may arise by reason of any reletting. If such termination is caused by the failure to pay rent and/or the abandonment of any substantial portion of the Premises, Landlord may elect, by sending written notice thereof to Tenant, to cancel receive liquidated damages in an amount equal to the Base Rental and terminate this other rent payable hereunder for the month during which the Lease is terminated times the lesser of (A) twelve (12) or (B) the number of months remaining in the Lease Term as of the date of such failure to pay rent and/or abandonment of any substantial portion of the Premises. Such liquidated damages shall be in lieu of the payment of loss and dispossess damage Landlord may suffer by reason of such termination as provided in the preceding sentence but shall not be in lieu of or reduce in any way any amount (including accrued rent) or damages due to breach of covenant (whether or not liquidated) payable by Tenant by summary proceedings or other lawful means;to Landlord which is accrued and outstanding at the time of the termination of the Lease.
(ii) Enter upon and take possession of the Premises and expel or remove Tenant or any other person who may be occupying said Premises, or any part thereof, by force, if necessary, without having any civil or criminal liability therefor and without terminating this Lease. Landlord may (but shall be under no obligation to) relet the Premises or any part thereof for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant for such term or terms which may be greater or less than the period which would otherwise have constituted the balance of the Lease Term and on such conditions (which may include concessions or free rent) and for such uses as Landlord in its absolute discretion may determine, and Landlord may collect and receive any rents payable by reason of such reletting. Tenant agrees to pay Landlord on demand all Costs of Reletting and any deficiency that may arise by reason of such reletting. Landlord shall have not be responsible or liable for any failure to relet the right Premises or any part thereof or for any failure to declare all amounts and rents collect any rent due under upon any such reletting. No such re-entry or taking of possession of the Premises by Landlord shall be construed as an election on Landlord's part to terminate this Lease for the remainder unless a written notice of the existing term (and any applicable extension or renewal thereof) such termination is given to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rentTenant.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter Enter upon the Premises by force if necessary without having any civil or criminal liability therefor, and do whatever Tenant is obligated to do under the terms of this Lease (and Tenant agrees to reimburse Land- lord Landlord on demand for any expenses expense which Landlord may incur in effecting thus affecting compliance with Tenant's obligations under this Lease together with interest at the lesser of a per annum rate equal to (i) the Maximum Rate or (ii) the Prime Rate plus five percent (5%) and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies , whether caused by the negligence of Land- lord shall be cumulative Landlord or otherwise.
(iv) In order to regain possession of the Premises and not exclusive, and in additionto deny Tenant access thereto, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more its agent may, at the expense and liability of the remedies herein provided upon an event of default shall not be deemed Tenant, alter or construed to constitute a waiver of such default change any or remedy.
c) This Paragraph 28 shall be enforceable all locks or other security devices controlling access to the maximum extent permissible by applicable law, and the unenforceability Premises without posting or giving notice of any portion hereof shall not thereby render unenforceable any other portion.
d) kind to Tenant. Landlord shall not be have no obligation to provide Tenant a key or grant Tenant access to the Premises so long as Tenant is in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented shall not be entitled to recover possession of the Premises, terminate this Lease, or recover any actual, incidental, consequential, punitive, statutory or other damages or award of attorneys' fees, by reason of Landlord's alteration or change of any lock or other security device and the resulting exclusion from unilaterally withholding rent the Premises of the Tenant or Tenant's agents, servants, employees, customers, licensees, invitees or any other persons from the Premises. Landlord may, without filing its own cause notice, remove and either dispose of action versus or store, at Tenant's expense, any property belonging to Tenant that remains in the Premises after Landlord has regained possession thereof. Any such property of Tenant not retaken by Tenant from Landlord's storage within 30 days after removal from the Premises shall, at Landlord's option. be deemed conveyed by Tenant to Landlord under this Lease as by a xxxx of sale without further payment or credit by Landlord to Tenant. Tenant acknowledges that the provisions of this subparagraph of this Lease supersedes die Texas Property Code and Tenant farther warrants and represents that it hereby knowingly waives any rights it may have thereunder.
e(v) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT Terminate this Lease by giving Tenant written notice thereof, in which event, Tenant shall pay to Landlord the sum of (i) all rent accrued hereunder through the date of termination, (ii) all Costs of Reletting, and (iii) an amount equal to (A) the total rent that Tenant would have been required to pay for the remainder of the Lease Term discounted to present value minus; (B) the then present fair rental value of the Premises for such period, similarly discounted.
(c) For purposes of this Lease, the term "COSTS OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASERELETTING" shall mean all costs and expenses incurred by Landlord in connection with the reletting of the Promises, including without limitation the cost of cleaning, renovation, repairs, decoration and alteration of the Premises for a new tenant or tenants, advertisement, marketing, brokerage and legal fees, the cost of protecting or caring for the Premises while vacant, the cost of removing and storing any property located on the Premises, any increase in insurance premiums caused by the vacancy of the Premises, costs of carrying the Premises such as taxes, insurance premiums, utilities and security precautions, any unearned brokerage commissions paid in connection with this Lease, parking fees or occupancy taxes due under the Lease, reimbursement of any previously waived Base Rental, Basic Costs, free rent, or reduced rental rate, and any concession made or paid by Landlord to the benefit of Tenant in consideration of this Lease including, but not limited to, any moving allowances, contributions or payments by Landlord for tenant improvements or build-out allowances, or assumptions by Landlord of any of Tenant's previous lease obligations and any other out-of-pocket expenses incurred by Landlord including tenant inducements such as the cost of moving the new tenant or tenants and the cost of assuming any portion of the existing lease(s) of the new tenant(s).
Appears in 1 contract
Events of Default Remedies. a) The If any of the following events shall occur and be deemed to be events of default by Tenant under this Leasecontinuing:
(ia) Tenant the Borrower shall fail to pay any Rent principal of any Loan or Reimbursement Obligation when due in accordance with the terms hereof; or the Borrower shall fail to pay any interest on any Loan, Reimbursement Obligation, any fees hereunder or any other sums amount payable hereunder or under any other Loan Document within five Business Days after any such interest, fees or other amounts becomes due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document when made which shall be false or misleading in any material respect when made; or
(c) any Loan Party shall default in the observance or performance of money due hereunder any covenant contained in Sections 6.3 (as it relates to the existence of Parent or the Borrower), 6.5, 6.6 or 6.9, or Section 7; or
(d) any Loan Party shall default in the observance or performance of any other covenant contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 8), and such failure default shall continue unremedied for a period of ten (10) 30 days after the earlier of the date such Rent Loan Party obtains knowledge of such default or other sums the date on which written notice thereof is due given to the Borrower by the Administrative Agent; or
(with no notice being required e) any Loan Party shall (i) default in making any payment of Landlord); hereinafter referred to as a "Monetary Default:;
any principal of or interest on any Indebtedness (including any Contingent Obligation, but excluding the Loans and Non-Recourse Indebtedness) beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created, or (ii) Tenant shall fail to comply with default in the observance or performance of any other Non-Monetary provision of this Lease agreement or condition relating to any such Indebtedness or Contingent Obligations or contained in any instrument or agreement evidencing, securing or relating thereto, or any other agreement between Landlord and Tenantevent shall occur or condition exist, if applicablethe effect of which default or other event or condition is to cause, after Landlord has provided thirty (30) days prior written notice or to permit the holder or beneficiary of such Non-Monetary Default and Tenant has failed Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cure cause, with the giving of notice if required, such Non-Monetary Default within said thirty Indebtedness to become due prior to its stated maturity or (30in the case of any such Indebtedness constituting a Contingent Obligation) days to become payable; provided; however, if such default cannot be cured within thirty that a default, event or condition described in clause (30i), (ii) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
or (iii) The leasehold hereunder demised of this paragraph (e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be continuing with respect to Indebtedness or Contingent Obligations the aggregate outstanding principal amount of which is $10,000,000 or more; or
(i) Borrower or any other Loan Party shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets; or (ii) there shall be taken on execution commenced against Borrower or any other Loan Party any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed or undischarged for a period of 60 days; or (iii) there shall be commenced against Borrower or any other Loan Party any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of law its assets that results in the entry of an order for any action against Tenant;
such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal for a period of 30 consecutive days following the entry thereof; or (iv) Tenant Borrower or any other Loan Party shall fail to promptly move intotake any formal action in furtherance of, take possession of and operate or indicating its business on the Premises when the Premises are ready for occupancy consent to, approval of, or shall cease to do business in or vacate or abandon acquiescence in, any substantial portion of the Premises for more than ten acts set forth in clause (10i), (ii), or (iii) consecutive days;
above; or (v) Tenant Borrower or any other Loan Party shall become insolvent generally not, or shall be unable to to, or shall admit in writing its inability to, pay its debts as they become due, Tenant files a petition in bankruptcy ; or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an or Borrower or any other Loan Party shall make a general assignment for the benefit of its creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viiig) The adjudication (i) an ERISA Event shall have occurred, (ii) a trustee shall be appointed by a United States district court to administer any Pension Plan, (iii) the PBGC shall institute proceedings to terminate any Pension Plan(s), (iv) any Loan Party or any of Tenant as their respective ERISA Affiliates shall have been notified by the sponsor of a bankruptorMultiemployer Plan that it has incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and such entity does not have reasonable grounds for contesting such Withdrawal Liability or is not contesting such Withdrawal Liability in a timely and appropriate manner or (v) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (v) above, such event or condition, together with all other such events or conditions, if any, which could reasonably be expected to result in a Material Adverse Effect; or
(ixh) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more final non-appealable judgments or decrees shall be entered against any Loan Party involving in the aggregate a liability of more than $10,000,000, and all such judgments or decrees shall not have been paid, vacated, discharged, stayed or bonded pending appeal for a period of 30 consecutive days after the following remedies:entry thereof; or
(i) Landlord any Loan Party shall be found responsible for (A) the release by any Loan Party, any of its Subsidiaries or any other Person of any Hazardous Substance into the environment, or (B) any violation of any Environmental Law or any Federal, state or local health or safety law or regulation, which, in either case of clause (A) or (B), could reasonably be expected to have a Material Adverse Effect; or
(j) any guarantee under the rightGuarantee Agreement shall cease, at its electionfor any reason, to cancel be in full force and terminate this Lease effect (other than in accordance with its terms), or any Loan Party shall deny in writing that it has any further liability under the Guarantee Agreement (excluding release of any Loan Party in accordance with the Loan Documents); or
(k) there shall occur any Change of Control; then, and dispossess Tenant by summary proceedings in any such event, (A) if such event is an Event of Default specified in clause (i) or other lawful means;
(ii) Landlord of paragraph (f) above with respect to Parent or the Borrower, automatically the Commitments shall immediately terminate and the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents (including all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereofdocuments required thereunder) to be shall immediately become due and payable, and thereupon all rents and (B) if such event is any other charges due hereunder Event of Default, either or both of the following actions may be taken: (i) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the end Borrower declare the Commitments to be terminated forthwith, whereupon the Commitments shall immediately terminate; and (ii) with the consent of the initial term Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Loans (with accrued interest thereon) and any renewal termall other amounts owing under this Agreement and the other Loan Documents (including all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) to be due and payable forthwith, whereupon the same shall immediately become due and payable. With respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to this paragraph, the Borrower shall at such time deposit in a cash collateral account opened by the Administrative Agent an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts held in such cash collateral account shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if applicableany, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for applied to repay other obligations of the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter Borrower hereunder and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term other Loan Documents. After all such Letters of this Lease; and
(iv) Landlord may enter upon Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall have been satisfied and all other obligations of the Premises Borrower hereunder and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur the other Loan Documents shall have been paid in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord full, the balance, if any, in such cash collateral account shall not be liable for any damages resulting returned to the Tenant from Borrower (or such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that Person as may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereoflawfully entitled thereto). Except as otherwise specifically expressly provided above in this LeaseSection, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach presentment, demand, protest and all other notices of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant kind are hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement expressly waived by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus LandlordBorrower.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a) The following events shall be deemed to be events of default by Tenant under this Lease:
(i) Tenant shall fail to pay any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any Any one or more of the following remedies:
shall constitute an Event of Default under this Agreement: (a) Borrower’s failure (i) Landlord shall have to pay all or any part of the rightObligations when due and payable, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have to comply with any agreement or covenant set forth in this Agreement if any such noncompliance that can be cured is not cured pursuant to the right to declare all amounts terms and rents due under this Lease for the remainder conditions of the existing term Loan Agreement, (iii) to comply with the terms of any material contract to which Borrower is a party and any applicable extension agreement pursuant to which Borrower has incurred indebtedness, including, without limitation, the Loan Agreement and the Loan Documents, provided that no such failure shall constitute an Event of Default hereunder during the pendency of any grace period or renewal thereofwaiver under such contract, or (iv) to comply with any law to which Borrower is subject; (b) upon the occurrence of any Event of Default (as defined in the Loan Agreement) set forth in Article 8 of the Loan Agreement; (c) any of Borrower’s assets are attached or become subject to levy or legal proceeding, or if Borrower becomes insolvent, or becomes the subject of any case or proceeding under the United States Bankruptcy Code or any other law relating to the reorganization or restructuring of debt (an “Insolvency Event”); (d) any representation made to Bank in this Agreement, the Schedule of Accounts, or any information given to Bank by or on behalf of Borrower shall be incorrect in any respect; (e) the occurrence of any circumstance or any circumstances which would reasonably be expected to have a Material Adverse Effect (as defined in the Loan Agreement); or (f) any validity indemnity or guaranty of all or a part of the obligations ceases for any reason to be in full force and effect, or any person fails to perform any obligation under any validity indemnity or guaranty, or any person revokes or purports to revoke a validity indemnity or guaranty, or any material misrepresentation or material misstatement exists now or hereafter in any warranty or representation set forth in any validity indemnity or guaranty. Upon the occurrence of an Event of Default, (a) all fees and other amounts owing hereunder shall, at the option of Bank, be immediately due and payable, and thereupon all rents and other charges due hereunder to ; (b) the end of the initial term and any renewal term, if applicable, Finance Fee shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for increased at a per annum rate equal to five percentage points above the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable rate in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, effect immediately prior to the Event of Default; (c) and Bank may exercise all of the rights of a secured party under the Uniform Commercial Code and all rights set forth in Article 9 of the Loan Agreement. Bank shall have a right to dispose of the Collateral in any commercially reasonable manner, and shall have a royalty-free license to use any name, trademark, advertising matter or any property of a similar nature to complete production of, advertisement for, and disposition of any such remediesCollateral. Bank shall have a license to enter into, it will give occupy and use Borrower’s premises and the mortgagees on the Property written notice and a reasonable period of time in which Collateral without charge to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting exercise any of the foregoing Bank’s rights or remedies (under this Agreement. All rights are cumulative and may be exercised in Bank’s discretion singularly or together with any other remedy) rights. If there is a direct conflict between the remedies set forth herein and the remedies set forth in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause Article 9 of action versus Landlordthe Loan Agreement, the remedies set forth in Article 9 of the Loan Agreement shall control.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a) The If any of the following events shall occur and be deemed to be events continuing (each of default by Tenant which shall constitute an "Event of Default" under this Lease:Loan Agreement): 10
(i1) Tenant shall fail to ROSS xxxs not pay, repay or prepay any principal of or interest on any Note when due;
(2) ROSS xxxs not pay any Rent other obligation or amount payable under this Loan Agreement or any Note when due;
(3) ROSS xxxs not pay principal or interest on any other sums debt when due, or the holder of money such other debt declares, or may declare, such debt due hereunder and such failure prior to its stated maturity because of ROSS' xxfault thereunder;
(4) any representation or warranty made by ROSS xxxein or otherwise furnished to the Bank in connection with this Loan Agreement shall continue for a period be incorrect, false or misleading in any material respect when made;
(5) ROSS xxxls to deliver an original Note to the Bank in accordance with paragraph 1(c) of this Loan Agreement within ten (10) days after following receipt by the date Bank of the telecopied form of such Rent Note, or other sums is due (with no notice being required the original note contains any material variation from the telecopied form of Landlord); hereinafter referred to as a "Monetary Default:such Note;
(ii6) Tenant ROSS xxxlates any covenant, agreement or condition contained in herein and such violation shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured have been remedied within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure after written notice has been received by ROSS xxxm the Bank or the holder of a Non-Monetary defaultNote;
(7) ROSS (x) makes an assignment for the benefit of creditors; (ii) admits in writing its inability to pay its debts generally as they become due; (iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable generally fails to pay its debts as they become due, Tenant ; (iv) files a petition in bankruptcy or answer seeking for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting toitself, or requesting the consenting to or acquiescing in, any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief afforded by the bankruptcy laws;
under any applicable law; (viv) Tenant makes an assignment for the benefit there is appointed a receiver, custodian, liquidator, fiscal agent, or trustee of creditors, within the meaning ROSS xx of the bankruptcy laws whole or Tenant consents to the appointment of a receiver or custodian for all or a any substantial part of its propertyassets; or SpanishRiver.Manchester.September 22(vi) any court enters an order, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of judgment or decree approving a petition filed against ROSS xxxking reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any applicable law and either such order, decree or judgment so filed against it is not dismissed or stayed (unless and until such stay is no longer in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and effect) within thirty (30) days thereafter of entry thereof or an order for relief is entered pursuant to any such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful meanslaw;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and 8) any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred order is entered in any proceeding against ROSS xxxreeing the dissolution, liquidation, winding-up or split-up of ROSS, xxd such reletting and order remains in effect for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after days;
(9) ROSS xx any other person claims, or any court finds or rules, that the receipt by Landlord of written notice from Tenant of the alleged failure to perform and Bank does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue have a valid claim against Fujitsu under the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have Facility A Guaranty or the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.Facility B Guaranty; or
Appears in 1 contract
Samples: Loan Agreement (Ross Technology Inc)
Events of Default Remedies. In case anyone or more of the following events, herein termed “events of default”, shall happen:
(a) The following events the Shipowner fails to pay within three (3) Business Days of the date due any payment in respect of the Indebtedness hereby secured as provided herein; or
(b) the statements in Article I shall prove to have been untrue in a material way when made; or
(c) a default in the due and punctual observance and performance of any of the provisions of Sections 2, 3, 7, 8, 9(b), 11, 12, 13(a), (b), (d), (h) and (j), 16 or 17 of Article II hxxxxx xxxxx xxxx xxxxxxxx xxx xx xxxxxxxxxx; xr
(d) a breach or omission in the due and punctual observance of any of the other covenants and conditions herein required to be kept and performed by the Shipowner and such breach or omission shall continue for 30 days after the day the Shipowner first knew or should have known of such breach or omission; or
(e) an Event of Default shall have occurred and be continuing under the Credit Agreement; or
(f) a payment default by the Borrower under any Interest Rate Protection Agreement or Other Hedging Agreement shall have occurred and be continuing; or
(g) any notice shall have been issued by the government or any bureau, department, officer, board or agency thereof of the country of registry of the Vessel to the effect that the Vessel is subject to cancellation from such registry or the certificate of registry of the Vessel is subject to revocation or cancellation for any reason whatsoever, and such notice shall not have been cancelled or annulled on or before seven (7) Business Days prior to the date set forth in such notice for such cancellation or revocation; or
(h) the Vessel shall be deemed to cancelled from the country of registry of the Vessel or the certificate of registry of the Vessel is revoked or cancelled for any reason whatsoever; then: the security constituted by this Mortgage shall become immediately enforceable and that without limitation, the enforcement remedies specified can be events exercised irrespective of default by Tenant whether or not the Mortgagee has exercised the right of acceleration under this Leasethe Credit Agreement or any of the other Credit Documents and the Mortgagee shall have the right to:
(i) Tenant Declare all the then unpaid Indebtedness hereby secured to be due and payable immediately, and upon such declaration, the same shall fail to pay become and be immediately due and payable provided, however, that no declaration shall be required if an event of default shall have occurred by reason of a default under Section 10.05 of the Credit Agreement, then and in such case, the Indebtedness hereby secured shall become immediately due and payable on the occurrence of such event of default without any Rent notice or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:demand;
(ii) Tenant shall fail Exercise all of the rights and remedies in foreclosure and otherwise given to comply with a mortgagee by the provisions of the laws of the country of registry of the Vessel or of any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as jurisdiction where the Vessel may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultfound;
(iii) The leasehold hereunder demised shall Bring suit at law, in equity or in admiralty, as it may be taken on execution advised, to recover judgment for the Indebtedness hereby secured, and collect the same out of any and all property of the Shipowner whether covered by this Mortgage or other process of law in any action against Tenantotherwise;
(iv) Tenant shall fail to promptly move into, take Take and enter into possession of the Vessel, at any time, wherever the same may be, without legal process and operate its business on without being responsible for loss or damage and the Premises when the Premises are ready for occupancy Shipowner or shall cease to do business other person in or vacate or abandon any substantial portion possession forthwith upon demand of the Premises Mortgagee shall surrender to the Mortgagee possession of the Vessel;
(v) Without being responsible for more than loss or damage, the Mortgagee may hold, lay up, lease, charter, operate or otherwise use such Vessel for such time and upon such terms as it may deem to be for its best advantage, and demand, collect and retain all hire, freights, earnings, issues, revenues, income, profits, return premiums, salvage awards or recoveries, recoveries in general average, and all other sums due or to become due in respect of such Vessel or in respect of any insurance thereon from any person whomsoever, accounting only for the net profits, if any, arising from such use of the Vessel and charging upon all receipts from the use of the Vessel or from the sale thereof by court proceedings or pursuant to subsection (vi) next following, all costs, expenses, charges, damages or losses by reason of such use; and if at any time the Mortgagee shall avail itself of the right herein given them to take the Vessel, the Mortgagee shall have the right to dock the Vessel, for a reasonable time at any dock, pier or other premises of the Shipowner without charge, or to dock her at any other place at the cost and expense of the Shipowner;
(vi) Without being responsible for loss or damage, the Mortgagee may sell the Vessel upon such terms and conditions as to the Mortgagee shall seem best, free from any claim of or by the Shipowner, at public or private sale, by sealed bids or otherwise, by mailing, by air or otherwise, notice of such sale, whether public or private, addressed to the Shipowner at its last known address and to any other registered mortgagee, twenty (20) calendar days prior to the date fixed for entering into the contract of sale and by first publishing notice of any such public sale for ten (10) consecutive days, in daily newspapers of general circulation published in the City of New York, State of New York; in the event that the Vessel shall be offered for sale by private sale, no newspaper publication of notice shall be required, nor notice of adjournment of sale; sale may be held at such place and at such time as the Mortgagee by notice may have specified, or may be adjourned by the Mortgagee from time to time by announcement at the time and place appointed for such sale or for such adjourned sale, and without further notice or publication the Mortgagee may make any such sale at the time and place to which the same shall be so adjourned; and any sale may be conducted without bringing the Vessel to the place designated for such sale and in such manner as the Mortgagee may deem to be for its best advantage, and the Mortgagee may become the purchaser at any sale. The Shipowner agrees that any sale made in accordance with the terms of this paragraph shall be deemed made in a commercially reasonable manner insofar as it is concerned;
(vvii) Tenant shall become insolvent or unable Require that all policies, contracts, certificates of entry and other records relating to pay its debts as they become duethe insurance with respect to the Vessel, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admissionincluding, answer or other responsive pleading consenting but not limited to, those described in Article II, Section 13 hereof (the “Insurances”) (including details of and correspondence concerning outstanding claims) be forthwith delivered to or requesting to the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning order of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its propertyMortgagee; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; orand/or
(viii) The adjudication Collect, recover, compromise and give a good discharge for any and all monies and claims for monies then outstanding or thereafter arising under the Insurances or in respect of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all the earnings or any part of its interests in requisition compensation and to permit any brokers through whom collection or recovery is effected to charge the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 aboveusual brokerage therefor.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a) The If any of the following events shall occur and be deemed to be events of default by Tenant under this Leasecontinuing:
(i) Tenant ARTICLE I the Borrower shall fail to pay any Rent principal of any Loan or Reimbursement Obligation when due in accordance with the terms hereof; or the Borrower shall fail to pay any interest on any Loan, Reimbursement Obligation, any fees hereunder or any other sums amount payable hereunder or under any other Loan Document within five (5) Business Days after any such interest, fees or other amounts becomes due in accordance with the terms hereof; or
ARTICLE II any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document when made which shall be false or misleading when made if the same has a Material Adverse Effect; or
ARTICLE III any Loan Party shall default in the observance or performance of money due hereunder any covenant contained in Sections 6.3, 6.5, 6.6 or 6.9, or Section 7; or
ARTICLE IV any Loan Party shall default in the observance or performance of any other covenant contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 8), and such failure default shall continue unremedied for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice days; or
ARTICLE V any Loan Party shall (i) default in making any payment of such any principal of any Indebtedness (including any Contingent Obligation, but excluding the Loans and Non-Monetary Default and Tenant has failed to cure Recourse Indebtedness) beyond any applicable period of grace, or (ii) default in making any payment of any interest on any such Non-Monetary Default within said thirty Indebtedness or Contingent Obligation set forth in clause (30i) days provided; howeverbeyond the period of grace, if any, provided in the instrument or agreement under which such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such DefaultIndebtedness was created, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
or (iii) The leasehold hereunder demised default in the observance or performance of any other agreement or condition relating to any such Indebtedness or Contingent Obligations set forth in clause (i) or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Contingent Obligation) to become payable; provided, that a default, event or condition described in clause (i), (ii) or (iii) of this paragraph (e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be continuing with respect to Indebtedness or Contingent Obligation the aggregate outstanding principal amount of which is $25,000,000 or more; or
ARTICLE VI (i) Borrower or any other Loan Party shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, windingup, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets; or (ii) there shall be taken on execution commenced against Borrower or any other Loan Party any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed or undischarged for a period of 60 days; or (iii) there shall be commenced against Borrower or any other Loan Party any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of law its assets that results in the entry of an order for any action against Tenant;
such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) Tenant Borrower or any other Loan Party shall fail to promptly move intotake any action in furtherance of, take possession of and operate or indicating its business on the Premises when the Premises are ready for occupancy consent to, approval of, or shall cease to do business in or vacate or abandon acquiescence in, any substantial portion of the Premises for more than ten acts set forth in clause (10i), (ii), or (iii) consecutive days;
above; or (v) Tenant Borrower or any other Loan Party shall become insolvent generally not, or shall be unable to to, or shall admit in writing its inability to, pay its debts as they become due, Tenant files a petition in bankruptcy ; or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an or Borrower or any other Loan Party shall make a general assignment for the benefit of its creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
ARTICLE VII (i) Landlord an ERISA Event shall have the rightoccurred, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, a trustee shall be accelerated; howeverappointed by a United States district court to administer any Pension Plan, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect the PBGC shall institute proceedings to enter and repossess the Premises and relet the Premises for Tenant's accountterminate any Pension Plan(s), holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon any Loan Party or any of their respective ERISA Affiliates shall have been notified by the Premises sponsor of a Multiemployer Plan that it has incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and do whatever Tenant such entity does not have reasonable grounds for contesting such Withdrawal Liability or is obligated not contesting such Withdrawal Liability in a timely and appropriate manner; or (v) any other event or condition shall occur or exist with respect to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, a Plan; and in additioneach case in clauses (i) through (v) above, Landlord may pursue any such event or condition, together with all other remedies that may such events or conditions, if any, which could reasonably be permitted by law or in equity. Forbearance by Landlord expected to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.Material Adverse Effect; or
Appears in 1 contract
Events of Default Remedies. a) The Each of the following events shall be deemed to be events an Event of default by Tenant under this LeaseDefault hereunder:
(ia) Tenant shall fail Failure of any Guarantor to pay any Rent Guaranteed Obligations upon receipt of demand by the Trustee to such Guarantor given in accordance with Section 20 hereof.
(b) The dissolution or liquidation of a Guarantor or the filing by a Guarantor of a voluntary petition in bankruptcy, or the entry of any order or decree granting relief in any involuntary case commenced against a Guarantor under any present or future federal bankruptcy act or any other sums of money due hereunder similar federal or state law, or a petition for such an order or decree shall be filed in any court and such failure petition shall continue for a period of ten (10) not be discharged or denied within 90 days after the date such Rent filing thereof, or other sums is due (with no notice being required of Landlord); hereinafter referred to as if a "Monetary Default:;
(ii) Tenant Guarantor shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but admit in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate writing its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable inability to pay its debts generally as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian trustee or trustee for all liquidator of a Guarantor shall be appointed in any proceeding brought against the Guarantor and shall not be discharged within 90 days after such appointment or if a substantial part of its property without its Guarantor shall consent to such appointment, or the assuming of custody or sequestration assignment by a court of competent jurisdiction Guarantor of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissedits assets for the benefit of its creditors, or such court order is not vacated the entry by a Guarantor into an agreement of composition with its creditors with respect to all or such assumption or sequestration is not releasedsubstantially all of its assets, or a bankruptcy, insolvency or similar proceeding shall be otherwise initiated by or against a Guarantor under any applicable bankruptcy, reorganization or analogous law as now or hereafter in effect and if initiated against the Tenant does not bond off Guarantor shall remain undismissed (subject to no further appeal) for a period of 90 days; provided, the risk to Landlord to Landlord's reasonable satisfactionterm “dissolution or liquidation of a Guarantor,” as used in this subsection (b), which shall not be unreasonably deniedconstrued to include the cessation of the existence of a Guarantor resulting either from a merger or consolidation of the Guarantor into or with another entity or a dissolution or liquidation of the Guarantor following a transfer of all or substantially all of its assets as an entirety; orand provided further that an Event of Default shall not be triggered under this subsection (b) if the Company and the unaffected Guarantor or Guarantors shall continue to own more than 50% of the consolidated assets of the Company and the Subsidiaries.
(viiic) The adjudication If any representation made by a Guarantor contained in this Guaranty was false or misleading in any material respect at the time it was made or delivered. Whenever an Event of Tenant as a bankruptor; or
Default shall have happened and be continuing, (ixa) Tenant shall attempt to assign, transfer, sublet all or any part of its interests the Trustee in the Premises or manner provided in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more 7.1 of the following remedies:
(i) Landlord shall have Indenture may declare the rightentire unpaid principal of, at its electionor redemption premium, to cancel if any, and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have interest on the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) Series 2020R-1 Bonds to be immediately due and payable, and thereupon all rents and other charges due hereunder to (b) the end Trustee may, in its discretion, or shall upon the written request of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source Holders of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable 66 2/3% in damages for all expenses incurred in any such reletting and for any difference between the principal amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do Series 2020R-1 Bonds then Outstanding, take whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by action at law or in equity. Forbearance by Landlord equity as may appear necessary or desirable to collect payments then due or thereafter to become due hereunder or to enforce one observance or more performance of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of Guarantors under this Guaranty. In case the Trustee shall have proceeded to enforce this Guaranty and such proceedings shall have been discontinued or abandoned for any promise or inducement hereofreason, whether then and in this Lease or elsewhere. Tenant hereby waives every such remedies of termination case each Guarantor and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of the Trustee, subject to any promise or inducement by Landlord determination in any applicable proceeding, shall be limited restored respectively to a suit for damages and/or injunction. Tenant hereby covenants thattheir several positions and rights hereunder, prior to the exercise of any such remediesand all rights, it will give the mortgagees on the Property written notice remedies and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any powers of the foregoing remedies (or any other remedy) in a Guarantors and the Trustee shall continue as though no such proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordhad been taken.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. (a) The If any Event of Default shall occur and be continuing, the Lender may, by notice to the Borrower Representative, take any of the following events actions: (1) declare the Maturity Date to have occurred and all Lender Debt related thereto shall become immediately due and payable in full; (2) terminate all commitments and obligations of the Lender hereunder; and (3) without limiting any rights hereunder and subject to applicable law, replace the Borrowers in their performance of any or all of its Receivables servicing responsibilities. If an Event of Default under clause (9) of Section 11.1 occurs, the Maturity Date will be deemed to have occurred automatically and without notice and all Lender Debt shall automatically become immediately due and payable and all commitments and obligations of the Lender shall be events terminated without any notice or demand of default by Tenant any kind. Upon any such declaration or designation, the Lender shall have, in addition to the rights and remedies which it may have under this Lease:
(i) Tenant Agreement, all other rights and remedies provided after default under the UCC and under other applicable law, which rights and remedies shall fail be cumulative. The Lender agrees that it will not have any right individually to pay any Rent enforce or seek to enforce this Agreement or any other sums of money due hereunder Loan Document or to realize upon any Collateral for the Lender Debt, it being understood and agreed that such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord rights and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as remedies may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded exercised only by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of Lender in its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rentdiscretion granted hereunder.
(iiib) Landlord may elect Each Loan Party hereby irrevocably authorizes and instructs the Lender to enter and repossess set-off the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the full amount of rent received from such reletting and the rent any Lender Debt due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for against any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusiveCollections, and in addition, Landlord may pursue any other remedies that may be permitted by law proceeds of Collateral, or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability principal amount of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days Revolving Advance requested on or after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22such due date. No further notification, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate act or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach consent of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, nature whatsoever is required prior to the exercise by the Lender of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period right of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordset off.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Revolving Loan and Security Agreement (Enzo Biochem Inc)
Events of Default Remedies. a) The Section 5.1. Each of the following events shall be deemed to be events an "Event of default by Tenant under this LeaseDefault" hereunder:
a). The occurrence of an Event of Default under Section 5.1 of the Loan Agreement (as defined in the Loan Agreement).
b). Any of the Guarantors shall: (i) Tenant admit in writing, any inability to pay any of the Guarantor's debts generally as they become due; (ii) have an order for relief entered in any case commenced by or against the Guarantor under the federal bankruptcy laws, as now or hereafter in effect; (iii) commence a proceeding under any other federal or state bankruptcy, insolvency, reorganization or other similar law, or have such a proceeding commenced against the Guarantor and either have an order of insolvency or reorganization entered against the Guarantor or have the proceeding remain undismissed and unstayed for 90 days; (iv) make an assignment for the benefit of creditors; or (v) have a receiver or trustee appointed for the Guarantor or for the whole or any substantial part of any of the Guarantor's property.
c). Any of the Guarantors shall fail to pay observe or perform any Rent agreement, term or any condition stated in this Guaranty, other sums of money due hereunder than as required or described in subsection (a) and (b) above, and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after notice of such failure is given to the receipt Guarantor by Landlord the (name of written notice from Tenant local jurisdiction), or for such longer period as the (name of local jurisdiction) may agree to in writing.
Section 5.2. Upon the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22occurrence of an Event of Default hereunder, 1997.ajm Initials: ----- ----- Page 15 the (Tenantname of local jurisdiction) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Leasemay proceed hereunder and, in no event the (name of local jurisdiction)'s sole discretion, shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination proceed first and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting directly against any of the foregoing Guarantors under this Guaranty without proceeding against or exhausting any other remedies which the (name of local jurisdiction) may have under the Loan Documents and without resorting to any other security held by the (name of local jurisdiction).
Section 5.3. Each of the Guarantors consent and agree that the (name of local jurisdiction) may, at the (name of local jurisdiction)'s discretion and without the necessity of obtaining any further consent of or giving notice to any of the Guarantors, have the right to (i) deal in any manner with the Borrower, including the right to grant any indulgence, forbearance, change, amendment, release, extension or other modification of the Loan Documents and to waive compliance with any of the terms or provisions of the Loan Documents; (ii) exchange, release, fail to resort to or otherwise deal in any manner with any security which may at any time be given to secure the Note, (iii) effect any release, compromise or settlement with respect to the Loan Documents, (iv) accelerate the maturity of the Note, (v) accept partial payment or payments of or extend the time for payment of any amounts due on or under this Guaranty, and (vi) agree to release any property from the lien, pledge and security interest created by the Security Documents (as defined in the Loan Agreement) and Loan Documents irrespective of the consideration, if any, received. Irrespective of the (name of local jurisdiction) taking or refraining from taking any of the above actions or any other remedy) of the actions referred to in a proceeding instituted by either party to enforce that party's rights the Loan Documents, the Security Documents or this Guaranty, the obligations of the Guarantors under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus LandlordGuaranty shall remain in full force and effect and shall not be affected, modified or impaired in any manner.
eSection 5.4. Each of the Guarantors expressly waives (i) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASEnotice, in writing or otherwise, from the (name of local jurisdiction) of the (name of local jurisdiction)'s acceptance of, and reliance on, this Guaranty, and (ii) defenses based on suretyship.
Appears in 1 contract
Samples: Guaranty
Events of Default Remedies. (a) The After the occurrence and during the continuance of an Event of Default, Seller hereby appoints Buyer as attorney-in-fact of Seller in accordance with Section 7(b) for the purpose of carrying out the provisions of this Agreement and taking any action and executing or endorsing any instruments that Buyer may deem necessary or advisable to accomplish the purposes hereof, which appointment as attorney-in-fact is irrevocable and coupled with an interest. With respect to each Transaction, each of the following events clauses (i) through (xv) shall be deemed to be events an Event of default by Tenant Default under this LeaseAgreement:
(i) Tenant shall fail Seller fails to pay any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after repurchase the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:Purchased Loans upon the applicable Repurchase Date;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days Seller fails to cure a Non-Monetary defaultMargin Deficit in accordance with Section 4 hereof;
(iii) The leasehold hereunder demised shall be taken on execution an Act of Insolvency occurs with respect to Seller or other process of law in any action against TenantGuarantor;
(iv) Tenant shall fail Guarantor fails to promptly move into, take possession of and operate its business on qualify as a REIT (after giving effect to any cure or corrective periods or allowances pursuant to the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive daysCode);
(v) Tenant either (A) the Transaction Documents shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting toany reason not cause, or requesting shall cease to cause, Buyer to be the relief afforded by owner free of any adverse claim of any of the bankruptcy lawsPurchased Loans, or (B) if a Transaction is recharacterized as a secured financing, the Transaction Documents with respect to any Transaction shall for any reason cease to create a valid first priority security interest in favor of Buyer in any of the Purchased Loans;
(vi) Tenant makes if an assignment for event occurs which would constitute (a) an “event of default” under any Hedging Transaction or (b) a “termination event” or an “additional termination event” under any Hedging Transaction (and, in either case, Seller has failed to cure the benefit “event of creditors, default” within the meaning applicable cure period or to meet its obligation to pay the Early Termination Amount, if any, pursuant to the terms of such Hedging Transaction);
(vii) failure of Buyer to receive within one (1) Business Day after any Remittance Date the accreted value of the bankruptcy laws Price Differential (less any amount of such Price Differential previously paid by Seller to Buyer);
(viii) failure of Seller to make any other payment owing to Buyer which has become due, whether by acceleration or Tenant consents otherwise under the terms of this Agreement (other than due to any act or failure to act of Depository to the appointment of a receiver extent available funds are on deposit in the applicable Cash Management Account), which failure is not remedied within three (3) Business Days after written notice thereof to Seller from Buyer;
(ix) any Governmental Authority takes any action to (i) condemn, seize or custodian for appropriate, or assume custody or control of, all or a any substantial part of the property of Seller, (ii) displace the management of Seller or curtail its property; authority in the conduct of the business of Seller, or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxxiii) (Xxxxxxxx)terminate the activities of Seller as contemplated by the Transaction Documents;
(xxxx) Xxx filing against Tenant a Change of Control shall have occurred;
(xi) any representation (other than a petition MTM Representation) made by Seller or Guarantor in bankruptcy any Transaction Document shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated and such incorrect or untrue representation exists and continues unremedied for reorganization under ten (10) Business Days after the bankruptcy laws, the adjudication earlier of Tenant as a bankrupt, the entry receipt of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent written notice thereof from Buyer or the assuming Seller’s acquiring Actual Knowledge of custody such incorrect or sequestration untrue representation (other than the representations and warranties set forth in Section 10(b)(viii) of this Agreement made by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfactionSeller, which shall not be unreasonably deniedconsidered an Event of Default if incorrect or untrue in any material respect, provided Seller repurchases the related Purchased Loan on an Early Repurchase Date no later than three (3) Business Days after receiving notice of such incorrect or untrue representation and terminates the related Transaction; provided further Seller shall not have made any such representation with actual knowledge that it was materially incorrect or untrue at the time made);
(i) Guarantor breaches any of the payment obligations set forth in the Guaranty or (ii) Guarantor shall fail to observe any of the financial covenants set forth in the Guaranty or (iii) shall have defaulted or failed to perform any of the other obligations under the Guaranty in any material respect and such default or failure referred to in this clause (iii) remains uncured for a period of seven (7) Business Days after the earlier of receipt of notice thereof from Buyer or the Seller’s acquiring Actual Knowledge of such default or failure by Guarantor;
(xiii) a final non-appealable judgment by any competent court in the United States of America for the payment of money in an amount greater than $100,000 (in the case of Seller) or $5,000,000 (in the case of the Guarantor) shall have been rendered against Seller or Guarantor, and remains undischarged or unpaid for a period of forty-five (45) days, during which period execution of such judgment is stayed by the posting of cash or a bond or other collateral acceptable to Buyer in the amount of the judgment; Seller or Guarantor shall have (x) defaulted under any note, indenture, loan agreement, guaranty or other Indebtedness to which it is a party, which default (A) involves the failure to pay a matured obligation in excess of $100,000 (in the case of Seller) or the greater of (a) $5,000,000 or (b) the lesser of (i) 5% of Tangible Net Worth (as such term is defined in the Guaranty) and (ii) $25,000,000 (in the case of Guarantor), or (B) results in the acceleration of the maturity of such Indebtedness in excess of a principal amount of $100,000 (in the case of Seller) or the greater of (a) $5,000,000 or (b) the lesser of (i) 5% of Tangible Net Worth (as such term is defined in the Guaranty) and (ii) $25,000,000 (in the case of Guarantor) by any other party to or beneficiary of such note, indenture, loan agreement, guaranty or other Indebtedness or (y) failed to perform any other material non-payment obligation under such note, indenture, loan agreement, guaranty or other Indebtedness with an asserted actual out-of-pocket damages claim in excess of the limits referenced in clause
(x) with respect to Seller or Guarantor, as applicable and acceleration occurs under such Indebtedness as a result thereof; provided, however, that any such default, failure to perform or breach shall not constitute an Event of Default if Seller or Guarantor cures such default or failure to perform, as the case may be, within the grace notice and/or cure period, if any, provided under the applicable agreement; or
(viiixiv) The adjudication if Seller or Guarantor shall breach or fail to perform any of Tenant as a bankruptor; or
(ix) Tenant shall attempt the terms, agreements, conditions, covenants or obligations applicable to assignsuch Person under this Agreement, transfer, sublet all any other Transaction Document or any part of its interests in the Premises or Purchased Loan Document to which such Person is a party, other than as specifically otherwise referred to in this Lease definition of “Event of Default” (including, without Landlord's prior limitation, the failure by Seller to deliver any report required pursuant to Section 12(i)), and such breach or failure to perform is not remedied within fifteen (15) Business Days after written consent subject notice thereof to Seller from the provisions applicable party or its successors or assigns; (each of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the rightthrough (xv), at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder an “Event of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rentDefault”).
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Events of Default Remedies. (a) The As used herein, the term “Event of Default” shall mean any of the following events shall be deemed to be events of default by Tenant under this Lease:
events: (i1) Tenant shall Borrowers fail to pay any Rent or any other sums of money due hereunder and such failure shall continue for a period of Installment within ten (10) days after the date such Rent or due; (2) any Borrower breaches any of its other sums is due (with no notice being required Obligations under any of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord the Loan Documents and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed fails to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder same within thirty (30) days after the receipt by Landlord of written notice from Tenant thereof (except a Default under Article 1 of the alleged failure Preferred Marine Mortgage to perform which the thirty (30) day notice shall not apply); (3) any dissolution, termination of existence, merger (unless the applicable Borrower is the surviving entity and such merger does not continue SpanishRiver.Manchester.September 22have a material adverse effect on such Borrower), 1997.ajm Initials: ----- ----- Page 15 consolidation (Tenantunless the applicable Borrower is the surviving entity and such consolidation does not have a material adverse effect on such Borrower); (4) a receiver, trustee, conservator or liquidator is appointed of any Borrower or of all or a substantial part of any Borrower’s assets, with or without the application or consent of such Borrower as applicable and, if such appointment is made without the consent of such Borrower as applicable, such appointment is not terminated or otherwise dismissed within sixty (Landlord60) days thereafter; (5) a petition is filed by or against any Borrower under any Bankruptcy, insolvency or similar legislation and, if such petition is filed without the consent of such Borrower as applicable, such filing is not dismissed within sixty (60) days thereafter; (6) any representation or warranty made by any Borrower as applicable herein or in any of the Loan Documents, certificates, financial statements or other statements furnished to Lender in connection with the Loan shall prove to be false or misleading in any material respect as of the date on which the same was made; (7) any Borrower, as applicable, shall fail to satisfy within sixty (60) days after the later of (i) entry thereof or (ii) the termination of the most recent stay, any final judgment rendered against such Borrower as applicable, by any court of competent jurisdiction where the judgment is in excess of $500,000; (8) (i) any of the Liens created or granted under the Loan Documents, or intended to be granted or created thereby, to Lender shall fail, with respect to any material Item of Equipment, to be a valid, first priority, perfected Lien subject to no prior or equal Lien and the Note secured thereby shall not have been paid in full within thirty (30) days after any Borrower becomes aware thereof; or (ii) additional Lien or Liens, except Permitted Maritime Liens, attach(es) to pursue the cure thereof. Except as otherwise specifically provided Equipment unless the Note shall be paid in this Leasefull, in no event shall Tenant have or the right Vessel (or other Item or Items of Equipment material to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result operation of the breach Vessel in compliance with the provisions of the Loan Documents) becomes subject to risk of imminent seizure or forfeiture, unless the Note shall have been paid in full; (9) any promise Event of Default, under and as defined in the Note or inducement Preferred Marine Mortgage, shall occur and be continuing; (10) Maritrans Inc. shall fail to comply with the financial covenants set forth in Section 16 hereof, whether in this Lease ; (11) if the Charter Agreement is cancelled or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, terminated prior to the exercise expiration of the term thereof or any such remedies, it will give the mortgagees on the Property written material event of default shall occur and be continuing after applicable notice and cure period under the Charter Agreement; (12) the Charter Agreement shall expire and not be replaced by a reasonable period renewal or replacement charter acceptable to Lender; or (13) an event of time in which to cure any alleged default. Notwithstanding anything to default occurs under the contrary contained hereinLoan and Security Agreement between Maritrans Inc. and Maritrans Honour Co., nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordas borrowers, and Lender dated June 22, 2004.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. In case anyone or more of the following events, herein termed “events of default”, shall happen:
(a) The following events the Shipowner (i) shall fail to pay on the date due any payment of principal in respect of the Indebtedness hereby secured as provided herein or (ii) shall default, and such default shall continue unremedied for three or more Business Days, in the payment when due of any other amounts owing by the Shipowner under the Subsidiaries Guaranty or this Mortgage; or
(b) the statements in Article I shall prove to have been untrue when made in a material way; or
(c) a default in the due and punctual observance and performance of any of the provisions of Sections 2, 3, 7, 8, 9(b), 11, 12, 13, 16, 17 or 18 of Article II hereof shall have occurred and be continuing; or
(d) a default in the due performance or observance by the Shipowner of any of the other covenants, terms and agreements contained in this Mortgage and such default shall continue unremedied for 30 days after the day the Shipowner first knew or should have known of such default; or
(e) an Event of Default shall have occurred and be continuing under the Credit Agreement; or
(f) a payment default by the Borrower under any Interest Rate Protection Agreement or Other Hedging Agreement shall have occurred and be continuing; or
(g) any notice shall have been issued by the government or any bureau, department, officer, board or agency thereof of the Republic of the Xxxxxxxx Islands to the effect that the registration of the Vessel is subject to cancellation or the certificate of registry of the Vessel is subject to revocation or cancellation for any reason whatsoever, and such notice shall not have been cancelled or annulled on or before seven (7) Business Days prior to the date set forth in such notice for such cancellation or revocation; or
(h) the Vessel shall be deemed to cancelled from the Republic of the Xxxxxxxx Islands or the certificate of registry of the Vessel is revoked or cancelled for any reason whatsoever; then: the security constituted by this Mortgage shall become immediately enforceable and that without limitation, the enforcement remedies specified can be events exercised irrespective of default by Tenant whether or not the Mortgagee has exercised the right of acceleration under this Leasethe Credit Agreement or any of the other Credit Documents and the Mortgagee shall have the right to:
(i) Tenant shall fail to pay any Rent Declare all or any other sums part of money the then unpaid Indebtedness hereby secured to be due hereunder and payable immediately, and upon such failure declaration, the same shall continue for become and be immediately due and payable provided, however, that no declaration shall be required if an Event of Default shall have occurred by reason of a period Default under Section 9.05 of ten (10) days after the date Credit Agreement, then and in such Rent case, the Indebtedness hereby secured shall become immediately due and payable on the occurrence of such Event of Default without any notice or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:demand;
(ii) Tenant shall fail Exercise all of the rights and remedies in foreclosure and otherwise given to comply with a mortgagee by the provisions of the laws of the Republic of the Xxxxxxxx Islands or of any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as jurisdiction where the Vessel may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultfound;
(iii) The leasehold hereunder demised shall Bring suit at law, in equity or in admiralty, as it may be taken on execution advised, to recover judgment for the Indebtedness hereby secured, and collect the same out of any and all property of the Shipowner whether covered by this Mortgage or other process of law in any action against Tenantotherwise;
(iv) Tenant shall fail to promptly move into, take Take and enter into possession of the Vessel, at any time, wherever the same may be, without legal process and operate its business on without being responsible for loss or damage and the Premises when the Premises are ready for occupancy Shipowner or shall cease to do business other person in or vacate or abandon any substantial portion possession forthwith upon demand of the Premises Mortgagee shall surrender to the Mortgagee possession of the Vessel;
(v) Without being responsible for more than loss or damage, the Mortgagee may hold, lay up, lease, charter, operate or otherwise use such Vessel for such time and upon such terms as it may deem to be for its best advantage, and demand, collect and retain all hire, freights, earnings, issues, revenues, income, profits, return premiums, salvage awards or recoveries, recoveries in general average, and all other sums due or to become due in respect of such Vessel or in respect of any insurance thereon from any person whomsoever, accounting only for the net profits, if any, arising from such use of the Vessel and charging upon all receipts from the use of the Vessel or from the sale thereof by court proceedings or pursuant to subsection (vi) next following, all costs, expenses, charges, damages or losses by reason of such use; and if at any time the Mortgagee shall avail itself of the right herein given them to take the Vessel, the Mortgagee shall have the right to dock the Vessel, for a reasonable time at any dock, pier or other premises of the Shipowner without charge, or to dock her at any other place at the cost and expense of the Shipowner;
(vi) Without being responsible for loss or damage, the Mortgagee may sell the Vessel upon such terms and conditions as to the Mortgagee shall seem best, free from any claim of or by the Shipowner, at public or private sale, by sealed bids or otherwise, by mailing, by air or otherwise, notice of such sale, whether public or private, addressed to the Shipowner at its last known address and to any other registered mortgagee, twenty (20) calendar days prior to the date fixed for entering into the contract of sale and by first publishing notice of any such public sale for ten (10) consecutive days, in daily newspapers of general circulation published in the City of New York, State of New York; in the event that the Vessel shall be offered for sale by private sale, no newspaper publication of notice shall be required, nor notice of adjournment of sale; sale may be held at such place and at such time as the Mortgagee by notice may have specified, or may be adjourned by the Mortgagee from time to time by announcement at the time and place appointed for such sale or for such adjourned sale, and without further notice or publication the Mortgagee may make any such sale at the time and place to which the same shall be so adjourned; and any sale may be conducted without bringing the Vessel to the place designated for such sale and in such manner as the Mortgagee may deem to be for its best advantage, and the Mortgagee may become the purchaser at any sale. The Shipowner agrees that any sale made in accordance with the terms of this paragraph shall be deemed made in a commercially reasonable manner insofar as it is concerned;
(vvii) Tenant shall become insolvent or unable Require that all policies, contracts, certificates of entry and other records relating to pay its debts as they become duethe insurance with respect to the Vessel, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admissionincluding, answer or other responsive pleading consenting but not limited to, those described in Article II, Section 13 hereof (the “Insurances”) (including details of and correspondence concerning outstanding claims) be forthwith delivered to or requesting to the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning order of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; orMortgagee;
(viii) The adjudication Collect, recover, compromise and give a good discharge for any and all monies and claims for monies then outstanding or thereafter arising under the Insurances or in respect of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all the earnings or any part of its interests in requisition compensation and to permit any brokers through whom collection or recovery is effected to charge the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 aboveusual brokerage therefor.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a) The Each of the following events shall be deemed to be events an Event of default by Tenant under this LeaseDefault hereunder:
(ia) Tenant shall fail Failure of any Guarantor to pay any Rent Guaranteed Obligations upon receipt of demand by the Trustee to such Guarantor given in accordance with Section 20 hereof.
(b) The dissolution or liquidation of a Guarantor or the filing by a Guarantor of a voluntary petition in bankruptcy, or the entry of any order or decree granting relief in any involuntary case commenced against a Guarantor under any present or future federal bankruptcy act or any other sums of money due hereunder similar federal or state law, or a petition for such an order or decree shall be filed in any court and such failure petition shall continue for a period of ten (10) not be discharged or denied within 90 days after the date such Rent filing thereof, or other sums is due (with no notice being required of Landlord); hereinafter referred to as if a "Monetary Default:;
(ii) Tenant Guarantor shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but admit in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate writing its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable inability to pay its debts generally as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian trustee or trustee for all liquidator of a Guarantor shall be appointed in any proceeding brought against the Guarantor and shall not be discharged within 90 days after such appointment or if a substantial part of its property without its Guarantor shall consent to such appointment, or the assuming of custody or sequestration assignment by a court of competent jurisdiction Guarantor of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissedits assets for the benefit of its creditors, or such court order is not vacated the entry by a Guarantor into an agreement of composition with its creditors with respect to all or such assumption or sequestration is not releasedsubstantially all of its assets, or a bankruptcy, insolvency or similar proceeding shall be otherwise initiated by or against a Guarantor under any applicable bankruptcy, reorganization or analogous law as now or hereafter in effect and if initiated against the Tenant does not bond off Guarantor shall remain undismissed (subject to no further appeal) for a period of 90 days; provided, the risk to Landlord to Landlord's reasonable satisfactionterm “dissolution or liquidation of a Guarantor,” as used in this subsection (b), which shall not be unreasonably deniedconstrued to include the cessation of the existence of a Guarantor resulting either from a merger or consolidation of the Guarantor into or with another entity or a dissolution or liquidation of the Guarantor following a transfer of all or substantially all of its assets as an entirety; orand provided further that an Event of Default shall not be triggered under this subsection (b) if the Company and the unaffected Guarantor or Guarantors shall continue to own more than 50% of the consolidated assets of the Company and the Subsidiaries.
(viiic) The adjudication If any representation made by a Guarantor contained in this Guaranty was false or misleading in any material respect at the time it was made or delivered. Whenever an Event of Tenant as a bankruptor; or
Default shall have happened and be continuing, (ixa) Tenant shall attempt to assign, transfer, sublet all or any part of its interests the Trustee in the Premises or manner provided in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more 7.1 of the following remedies:
(i) Landlord shall have Indenture may declare the rightentire unpaid principal of, at its electionor redemption premium, to cancel if any, and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have interest on the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) Bonds to be immediately due and payable, and thereupon all rents and other charges due hereunder to (b) the end Trustee may, in its discretion, or shall upon the written request of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source Holders of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable 66 2/3% in damages for all expenses incurred in any such reletting and for any difference between the principal amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do Bonds then Outstanding, take whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by action at law or in equity. Forbearance by Landlord equity as may appear necessary or desirable to collect payments then due or thereafter to become due hereunder or to enforce one observance or more performance of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of Guarantors under this Guaranty. In case the Trustee shall have proceeded to enforce this Guaranty and such proceedings shall have been discontinued or abandoned for any promise or inducement hereofreason, whether then and in this Lease or elsewhere. Tenant hereby waives every such remedies of termination case each Guarantor and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of the Trustee, subject to any promise or inducement by Landlord determination in any applicable proceeding, shall be limited restored respectively to a suit for damages and/or injunction. Tenant hereby covenants thattheir several positions and rights hereunder, prior to the exercise of any such remediesand all rights, it will give the mortgagees on the Property written notice remedies and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any powers of the foregoing remedies (or any other remedy) in a Guarantors and the Trustee shall continue as though no such proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordhad been taken.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. (a) The Tenant shall be in default upon the occurrence of one or more of the following events shall be deemed to be events (an "Event of default by Tenant under this Lease:Default"):
(i) Tenant shall fail fails to pay any Rent rent or any other sums sum of money required to be paid by Tenant hereunder within ten (10) days of the date when due hereunder and without the need for any notice thereof by Landlord (except Landlord agrees to give written notice of such failure to pay rent or other sum of money not more than once per Lease Year, and no Event of Default shall continue for a period of be deemed to have occurred if Tenant makes the required payment within ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:notice;
(ii) Tenant shall fail fails to comply with perform any other Nonof Tenant's non-Monetary provision of monetary obligations under this Lease or violates any other agreement between Landlord and Tenant, if applicable, after Landlord has provided covenant required to be observed by Tenant hereunder for a period of thirty (30) days prior after written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultthereof from Landlord;
(iii) The leasehold hereunder demised shall be taken on execution Tenant abandons the Premises for one hundred eighty (180) days or other process of law in any action against Tenant;more; or
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part petition for adjudication of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy bakruptcy or for reorganization under the bankruptcy laws, the adjudication of is filed by or against Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and is not dismissed within thirty (30) days thereafter such filing is not dismisseddays, or a receiver or trustee is appointed for a substantial part of Tenant's property and such court order appointment is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; orwithin thirty (30) days.
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon On the occurrence of any event or events an Event of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or notDefault, Landlord shall have the option to pursue may, at any one time thereafter, without notice or more of the following remediesdemand, and without limiting any other right at remedy Landlord may have:
(i) Landlord shall have the right, at its election, to cancel and terminate Terminate this Lease and dispossess Tenant Tenant's right to possession of the Premises by summary proceedings or other any lawful means;
(ii) , in which event Tenant shall immediately surrender possession of the Premises to Landlord. At its option, Landlord shall may occupy the Premises or cause the Premises to be redecorated, altered, divided, consolidated with other adjoining property, or otherwise prepared for reletting, and may relet the Premises or any part thereof for a term or terms to expire prior to, at the same time or subsequent to fee original Expiration Date, and receive the rent therefor, applying the sums received first to the payment of such expenses as Landlord may have incurred in connection with the right recovery of possession, preparing for reletting and the reletting itself, including brokerage and attorneys' fees, and then to declare all the payment of damages in amounts equal to the rent hereunder and rents due to the cost and expense of performance of the other covenants of Tenant under this Lease for Lease. Tenant agrees to pay to Landlord damages equal to the remainder rent and other sums payable by Tenant under this Lease, reduced by the net proceeds of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal termreletting, if applicableany, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for as ascertained from time to time. In reletting the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's accountgrant rent concessions, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees shall not be entitled to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and credit therefor. Tenant further shall not be entitled to any surplus resulting from any reletting. Tenant expressly agrees that Landlord shall not be liable for obligated to re-rent the Premises or take any other action to mitigate its damages resulting in the event Tenant is in default under this Lease.
(ii) Permit Tenant to remain in possession of the Tenant from such action)Premises, in which event this Lease shall continue in effect. All such remedies of Land- lord Landlord shall be cumulative entitled to enforce all of Landlord's rights and remedies under this Lease, including the right to receive the rent as it becomes due under this Lease.
(iii) Pursue any other remedy now or hereafter available under the laws of the jurisdiction in Which the Premises is located.
(c) The remedies available to Landlord herein specified are not exclusive, intended to be exclusive and in addition, prevent Landlord from exercising any other remedy or means of redress to which Landlord may pursue any be lawfully entitled. In addition to other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, Landlord shall be entitled to restraint by injunction of any violation or threatened violation by Tenant of any of the provisions of this Lease. Landlord's exercise of any right or remedy shall not prevent Landlord from exercising any other right or remedy.
(d) To the extent permitted by law, Tenant, for itself and any person claiming through or under Tenant, waives any equity or right of redemption provided by any law.
(e) Tenant agrees to pay as Additional Rent all reasonable attorneys' fees and other expenses incurred by Landlord in no event the enforcement of any of the obligations or agreements of Tenant under this Lease.
(f) If this Lease shall terminate by reason of the occurrence of any default of Tenant or any contingency mentioned in this Par. 23, Landlord shall at its option and election be entitled, notwithstanding any other provision of this Lease, or any present or future law, to recover from Tenant or Tenant's estate (in lieu of all claims against Tenant relating to unpaid Annual Rent or additional rent), as damages for loss of the bargain and not as a penalty, a lump sum which at the time of such termination of this Lease equals the then present worth of the Annual Rent and all other charges payable by Tenant hereunder that were unpaid or would have accrued for the right balance of the Term, less the fair and reasonable rental value of the Premises for the balance of such Term, such lump sum being discounted to terminate the date of termination at the rate of six (6%) percent per annum, unless any statute or rescind rule of law governing the proceeding in which such damages are to be proved shall limit the amount of such claim capable of being so proved, in which case Landlord stall be entitled to prove as and for liquidated damages by reason of such breach and termination of this Lease, the maximum amount which may be allowed by or under any such statute or rule of law. If the Premises or any part thereof shall be re-let by the Landlord for a period including the unexpired Term of this Lease or any part thereof, before the presentation of proof of such, liquidated damages to offset any court, commission, or tribunal, the Rent amount due Landlord as a result of rent reserved on such re-letting shall be deemed to be the fair and reasonable rental value for the part or the whole of the Premises so re-let during the Term of the re-letting. Nothing herein contained shall limit or prejudice Landlord's default right to prove and obtain as liquidated damages arising out of such breach or termination the maximum amount to be allowed by or under any covenant such statute or agreement contained rule of law which may govern the proceedings in this Lease which such damages are to be proved whether or as a result not such amount be greater, equal to, or less than the amount of the breach excess of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited file Annual Rent over the rental value referred to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordabove.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. (a) The following events shall be deemed to be events “Events of default Default” by Tenant under this Lease:
: (i) Tenant shall fail to pay any Rent or any other sums of money when due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord)under this Lease; hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease not requiring the payment of money (all of which terms, provisions, and covenants shall be deemed material) or any other agreement between Landlord and Tenant, if applicable, Tenant and such failure shall continue for a period of 15 days after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed default is delivered to cure such Non-Monetary Default within said thirty (30) days provided; howeverTenant, or if such default canfailure could not reasonably be cured within thirty (30) days and if such period, Tenant is diligently attempting shall have failed to commence such cure within such Default, Landlord shall grant period or thereafter failed to prosecute with diligence such additional reasonable time as may be necessary cure to cure such Non-Monetary Defaultcompletion, but in no event shall Landlord grant more later than ninety (90) 60 days after Landlord’s initial notice to cure a Non-Monetary default;
Tenant of such failure; (iii) The Tenant’s leasehold hereunder demised interest shall be taken on by execution or other process of law in any action against Tenant;
; (iv) Tenant notifies Landlord, at any time prior to the Rent Commencement Date, that Tenant does not intend to take occupancy of the Premises upon the Rent Commencement Date, or Tenant shall fail to promptly move into, into and take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
Premises; (v) Tenant shall become insolvent or unable to pay its debts as they become due, or Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
notifies Landlord that it anticipates either condition; (vi) Tenant makes an assignment for takes any action to, or notifies Landlord that Tenant intends to file a petition under the benefit of creditorsBankruptcy Code, within the meaning or under any similar law or statute of the bankruptcy laws United States or any State thereof, or a petition shall be filed against Tenant under any such statute, or Tenant consents notifies Landlord that it expects such a petition to the appointment of be filed; (vii) a receiver or custodian trustee shall be appointed for Tenant’s leasehold interest in the Premises or for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication assets of Tenant as a bankrupt, the entry or any guarantor; (viii) Tenant shall make any assignment of a court order appointing a receiver, custodian this Lease or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction sublease of all or substantially all any portion of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off Premises without Landlord’s prior consent in violation of the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably deniedterms of this Lease; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt remove or permit the removal of any furniture, fixtures or equipment from the Premises other than in the ordinary course of its business; (x) if Tenant fails more than twice within any 12 month period to assignobserve or perform any covenant, transfercondition, sublet all or agreement of this Lease (including without limitation the payment of Rent), regardless of whether such defaults shall have been cured by Tenant, the third default shall at the election of Landlord, in its sole and absolute discretion, be deemed a noncurable Event of Default; (xi) Tenant or any part agent of its interests Tenant falsifies any report or misrepresents other information required to be furnished to Landlord pursuant to this Lease; (xii) the death of Tenant or any Guarantor; or the commencement of steps or proceedings toward the dissolution, winding up, or other termination of the existence of the Tenant or of any Guarantor, or toward the liquidation of either of their respective assets; or (xiii) the occurrence of any other event described as a default elsewhere in the Premises Lease or any amendment thereto, regardless of whether such event is defined as one of the Events of Default in this Lease without Landlord's prior written consent subject to the provisions of Section 19 aboveSection.
(b) Upon the occurrence of any of the Events of Default enumerated above, or any other event or events of default or other breach of by Tenant under this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
remedies without any notice or demand: (i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Lease, in which event Tenant by summary proceedings or other lawful means;
shall immediately surrender the Premises to Landlord; (ii) Landlord shall have the terminate Tenant’s right to occupy the Premises and re-enter and take possession of the Premises (without terminating this Lease); (iii) declare all amounts and rents Rents due under this Lease for the remainder of the existing term Lease Term (and or any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and Lease Term (or any extension or renewal term, if applicable, ) shall be accelerated; however, Landlord but such accelerated amount shall credit Tenant for be discounted to the then present value at the discount rate of the Federal Reserve Bank of the district within which the Premises is located. Upon any re-renting income for termination of the Lease or Termination of possession to the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord Land lord may elect to enter and repossess the Premises and relet all or part of the Premises for Tenant's ’s account, holding for a term or terms which may, at Landlord’s option, be less than or greater than the period which would otherwise have constituted the balance of the Lease Term. Tenant shall be liable in damages for all expenses incurred in any such reletting including, without limitation, any Tenant improvement allowance, expenditures in connection with renovation, maintenance, repairs and/or alterations for the new tenant, broker’s commissions, legal fees, etc. and for any difference between the amount of rent received from such reletting and the rent Rent due and payable under the term Terms of this Lease; and
(iv) . If Landlord enters the Premises Landlord may enter upon the Premises and do whatever Tenant is obligated to do under the terms of this Lease (Lease, and Tenant agrees to reimburse Land- lord Landlord on demand for any expenses expense which Landlord may incur in effecting compliance with Tenant's ’s obligations under this Lease and Lease. Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). In addition, Landlord may exercise all other remedies available to Landlord at law or in equity, including, without limitation, injunctive relief. Should Landlord elect to re-enter or take possession of the Premises after Tenant’s default, Tenant waives notice of such re-entry or repossession. Landlord may make such alterations and/or decorations in the Premises as Landlord, in Land lord’s sole discretion, considers advisable and necessary for the purpose of reletting, securing or maintaining the Premises. Landlord, in addition to all other rights and remedies it may have, shall have the right to keep in place and use all of the inventory, furniture, fixtures, equipment and other personal property in the Premises and/or remove any or all of Tenant’s property from the Premises which may then be sold, disposed of, or stored at the cost of and for the account of Tenant. Landlord shall not be responsible for the care or safekeeping of any such property and Tenant waives any claim against Landlord relating thereto. No re-entry or taking possession of the Premises by Landlord shall be construed as an election on Landlord’s part to terminate this Lease unless written notice of such intention is given to Tenant. Notwithstanding any reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease. In any event, Landlord shall not be liable for, nor shall Tenant’s obligations be diminished by reason of, any failure by Landlord to relet the Premises or any failure by Landlord to collect any sums due upon such reletting, and the refusal, failure or inability of Landlord to relet the Premises or any part or parts thereof shall not release or affect Tenant’s liability for damages, Tenant specifically waiving any duty on the part of Landlord to mitigate damages otherwise imposed by law. Landlord may, without prejudice to any other remedy which it may have for possession or arrearages in rent, expel or remove Tenant and any other person who may be occupying said Premises or any part thereof. In addition, the provisions of Section 13 shall apply with respect to the period from and after the giving of notice of such Termination to Tenant. All such of Landlord’s remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the any remedies herein provided upon following an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to default. Without limiting the maximum extent permissible by applicable lawgenerality of the foregoing, and the unenforceability maintenance of any portion hereof action or proceeding to recover possession of the Premises or any Rent or any other monies that may be due or become due from Tenant to Landlord shall not thereby render unenforceable preclude Landlord from thereafter instituting and maintaining subsequent act ions or proceedings for the recovery of possession of the Premises or of any other portion.
d) Rent or monies that may be due or become due from Tenant. Any entry or re-entry into the Premises by Landlord shall not be in default hereunder unless deemed to absolve or discharge Tenant from liability under this Lease.
(c) In addition to any other rights and remedies available to Landlord has not begun to cure under this Lease and/or at law, Tenant shall reimburse Landlord upon demand the unamortized portion of: (i) any failure of its obligations hereunder within thirty Tenant improvement allowance; (30ii) days after the receipt brokerage fees paid by Landlord in connection with this Lease; (iii) costs expended by Landlord in connection with any Tenant Improvements made by Landlord; and (iv) all other costs, expenses and other sums incurred by Landlord in connection with preparing and/or improving the Premises for Tenant’s occupancy under this Lease.
(d) Tenant expressly waives any and all rights of written notice redemption and rights to relief from forfeiture granted by or under any present or future laws, if Tenant shall be evicted or dispossessed from the Premises for any cause, or Landlord reenters the Premises following the occurrence of any Event of Default, or this Lease is Terminated before the expiration date thereof originally fixed in this Lease. For the enforcement of Landlord’s remedies, Landlord may have recourse to any applicable legal or equitable process for the recovery of possession of the alleged failure Premises and the right to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereofseek an injunction or a declaratory judgment as if no other remedies were provided for such breach. Except as otherwise specifically provided in required by this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to waives any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission all statutory and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written legal notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordrequirements.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a) The If any of the following events shall occur and be deemed to be events of default by Tenant under this Leasecontinuing:
(ia) Tenant the Borrower shall fail to pay any Rent principal of any Loan or Reimbursement Obligation when due in accordance with the terms hereof; or the Borrower shall fail to pay any interest on any Loan, Reimbursement Obligation, any fees hereunder or any other sums amount payable hereunder or under any other Loan Document within five (5) Business Days after any such interest, fees or other amounts becomes due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document when made which shall be false or misleading when made if the same has a Material Adverse Effect; or
(c) any Loan Party shall default in the observance or performance of money due hereunder any covenant contained in Sections 6.3, 6.5 or 6.6, or Section 7; or
(d) any Loan Party shall default in the observance or performance of any other covenant contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 8), and such failure default shall continue unremedied for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice days; or
(e) any Loan Party shall (i) default in making any payment of such any principal of any Indebtedness (including any Contingent Obligation, but excluding the Loans and Non-Monetary Default and Tenant has failed to cure Recourse Indebtedness) beyond any applicable period of grace, or (ii) default in making any payment of any interest on any such Non-Monetary Default within said thirty Indebtedness or Contingent Obligation set forth in clause (30i) days provided; howeverbeyond the period of grace, if any, provided in the instrument or agreement under which such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such DefaultIndebtedness was created, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
or (iii) The leasehold hereunder demised default in the observance or performance of any other agreement or condition relating to any such Indebtedness or Contingent Obligations set forth in clause (i) or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Contingent Obligation) to become payable; provided, that a default, event or condition described in clause (i), (ii) or (iii) of this paragraph (e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be continuing with respect to Indebtedness or Contingent Obligation the aggregate outstanding principal amount of which is $25,000,000 or more; or
(i) Borrower or any other Loan Party shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets; or (ii) there shall be taken on execution commenced against Borrower or any other Loan Party any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed or undischarged for a period of 60 days; or (iii) there shall be commenced against Borrower or any other Loan Party any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of law its assets that results in the entry of an order for any action against Tenant;
such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) Tenant Borrower or any other Loan Party shall fail to promptly move intotake any action in furtherance of, take possession of and operate or indicating its business on the Premises when the Premises are ready for occupancy consent to, approval of, or shall cease to do business in or vacate or abandon acquiescence in, any substantial portion of the Premises for more than ten acts set forth in clause (10i), (ii), or (iii) consecutive days;
above; or (v) Tenant Borrower or any other Loan Party shall become insolvent generally not, or shall be unable to to, or shall admit in writing its inability to, pay its debts as they become due, Tenant files a petition in bankruptcy ; or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an or Borrower or any other Loan Party shall make a general assignment for the benefit of its creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viiig) The adjudication (i) an ERISA Event shall have occurred, (ii) a trustee shall be appointed by a United States district court to administer any Pension Plan, (iii) the PBGC shall institute proceedings to terminate any Pension Plan(s), (iv) any Loan Party or any of Tenant as their respective ERISA Affiliates shall have been notified by the sponsor of a bankruptorMultiemployer Plan that it has incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and such entity does not have reasonable grounds for contesting such Withdrawal Liability or is not contesting such Withdrawal Liability in a timely and appropriate manner; or (v) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (v) above, such event or condition, together with all other such events or conditions, if any, which could reasonably be expected to result in a Material Adverse Effect; or
(ixh) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more final non-appealable judgments or decrees shall be entered against any Loan Party involving in the aggregate a liability of more than $15,000,000, and all such judgments or decrees shall not have been paid, vacated, discharged, stayed or bonded pending appeal within 30 days from the following remedies:entry thereof; or
(i) Landlord any Loan Party shall be found responsible for (A) the release by any Loan Party, any of its Subsidiaries or any other Person of any Hazardous Substance into the environment, or (B) any violation of any Environmental Law or any federal, state or local health or safety law or regulation, which, in either case of clause (A) or (B), could reasonably be expected to have a Material Adverse Effect; or
(j) the rightguarantee contained in Section 1 of the Guarantee Agreement shall cease, at its electionfor any reason, to cancel be in full force and terminate this Lease effect or any Loan Party or any Affiliate of any Loan Party shall so assert (excluding release of any Loan Party in accordance with the Loan Documents); or
(k) there shall occur any Change of Control of the Borrower; then, and dispossess Tenant by summary proceedings in any such event, (A) if such event is an Event of Default specified in clause (i) or other lawful means;
(ii) Landlord of paragraph (e) above with respect to the Borrower, automatically the Commitments shall immediately terminate and the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents (including all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereofdocuments required thereunder) to be shall immediately become due and payable, and thereupon all rents and (B) if such event is any other charges due hereunder Event of Default, either or both of the following actions may be taken: (i) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the end Borrower declare the Commitments to be terminated forthwith, whereupon the Commitments shall immediately terminate; and (ii) with the consent of the initial term Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Loans (with accrued interest thereon) and any renewal termall other amounts owing under this Agreement and the other Loan Documents (including all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) to be due and payable forthwith, whereupon the same shall immediately become due and payable. With respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to this paragraph, the Borrower shall at such time deposit in a cash collateral account opened by the Administrative Agent an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts held in such cash collateral account shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if applicableany, shall be acceleratedapplied to repay other obligations of the Borrower hereunder and under the other Loan Documents. After all such Letters of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall have been satisfied and all other obligations of the Borrower hereunder and under the other Loan Documents shall have been paid in full, the balance, if any, in such cash collateral account shall be returned to the Borrower (or such other Person as may be lawfully entitled thereto). Except as expressly provided above in this Section, presentment, demand, protest and all other notices of any kind are hereby expressly waived by the Borrower. On and after the occurrence of an Event of Default, the Administrative Agent shall apply all payments in respect of any Obligations in the following order: (i) first, to pay Obligations in respect of (A) any fees, expenses, reimbursements or indemnities then due to the Administrative Agent, (B) any fees (other than commitment fees and Letter of Credit fees), expenses, reimbursements or indemnities then due to the Lenders and Issuing Lenders and (C) to pay commitment fees, Letter of Credit fees and interest due in respect of Loans and Letters of Credit; however, Landlord shall credit Tenant for any re-renting income for (ii) second to the Premises, after deducting Landlord's costs necessary to obtain such alternate source ratable payment or prepayment of rent.
principal outstanding on Loans and Letters of Credit; and (iii) Landlord may elect third, to enter the ratable payment of all other Obligations. On or after the occurrence of an Event of Default, all principal payments in respect of Loans shall be applied, first, to repay outstanding Swingline Loans, next outstanding ABR Loans and repossess then to repay outstanding Eurodollar Loans, with those that have the Premises and relet the Premises for Tenant's account, holding Tenant liable earlier expiring Interest Period being repaid prior to those that have later expiring Interest Periods. The order of priority set forth in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting this paragraph and the rent due and payable under the term related provisions of this Lease; and
(iv) Landlord may enter upon Agreement are set forth solely to determine the Premises rights and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more priorities of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to Administrative Agent, the maximum extent permissible by applicable lawLenders, and the unenforceability Issuing Lenders as among themselves. The order of any portion hereof shall not thereby render unenforceable any other portion.
dpriority set forth in clause (i) Landlord shall not may be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after changed only with the receipt by Landlord of prior written notice from Tenant consent of the alleged failure to perform Administrative Agent and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided order of priority of payments in this Lease, in no event shall Tenant have respect of Letters of Credit may be changed only with the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result prior written consent of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus LandlordIssuing Lenders.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. (a) The following events shall be deemed to be events constitute "Events of default by Tenant under this LeaseDefault" hereunder:
(i) Tenant If the Mortgagor shall (a) sell or transfer, or attempt to sell or transfer by operation of law or otherwise, its interest in the Vessel, except as permitted in the Security Agreement, or (b) permit the attachment of any suit, lien, claim, charge or encumbrance of any kind (i) in excess of $25,000 in the aggregate at any time if the Vessel is in drydock, (ii) which is not released within 30 days after it first attaches if the Vessel is in drydock, (iii) in excess of $25,000 in the aggregate at any time if the Vessel is not in drydock and the costs relate to items other than non-drydock repairs made while the Vessel is at port, and (iv) which is not released within 30 days after it first attaches if the Vessel is not in drydock and the costs relate to items other than non-drydock repairs made while the Vessel is at port; or
(ii) If the Mortgagor shall remove or attempt to remove the Vessel beyond the limits of the United States, save on voyages with the intention of returning to the United States, or shall abandon the Vessel; or
(iii) If the Vessel shall be libeled and levied upon or taken by virtue of any attachment or execution against the Mortgagor and such libel or levy is not released by Mortgagor within 30 days; or
(iv) The occurrence of an "Event of Default" under the Security Agreement;
(v) If the Mortgagor shall fail to pay any Rent Secured Obligation when due; or
(vi) The title or ownership of the Vessel shall be requisitioned, purchased or taken by the government of any other sums country or by any department, agency or representative thereof and there shall not have been paid to Mortgagee an amount in cash in United States dollars equal to the fair value of money due hereunder and such failure shall continue for a period of ten Vessel within ninety (1090) days after such event occurs;
(b) Upon the date occurrence of an Event of Default the Mortgagee may:
(i) Declare the Secured Obligations to be due and payable forthwith, whereupon such Rent or other sums is Secured Obligations shall become and be immediately due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:and payable;
(ii) Tenant shall fail Exercise all of the rights, powers and remedies in foreclosure and otherwise given to comply with any other Non-Monetary provision the Mortgagee by the provisions of this Lease or any other agreement between Landlord Chapter 313 of title 46, United States Code, and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default acts amendatory thereof and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultsupplemental thereto;
(iii) The leasehold hereunder demised shall be taken Recover judgment for any amount due on execution or other process the debt and collect the same out of law any property of the Mortgagor without its security under this First Preferred Ship Mortgage being in any action against Tenantway affected or impaired thereby;
(iv) Tenant shall fail to promptly move intoDemand and receive all freights, take possession of and operate its business on the Premises when the Premises are ready for occupancy hires, charter hires, earnings/or shall cease to do business in or vacate or abandon any substantial portion profits of the Premises for more than ten (10) consecutive daysVessel, due or to become due from any person whomsoever;
(v) Tenant shall With or without legal process re-enter and take possession of the Vessel at any time wherever it may be found and, without being responsible for loss or damage, hold, lease, charter, operate or otherwise use the Vessel for such time and on such terms as the Mortgagee may deem advisable and collect and retain all freights, hires, earnings, and/or other moneys due or to become insolvent due and arising therefrom, and/or if it seems desirable to the Mortgagee, and without being responsible for loss or unable damage, with or without possession, sell the Vessel free from any claim by the Mortgagor in admiralty, in equity, at law or by statute, after first giving notice of the time and place of sale, with a general description of the property, by publishing such notice in such manner as may be required by applicable rules of court and as may be reasonably calculated to pay its debts as they become duegive adequate notice of the sale to potential buyers through trade publication, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting tovia brokers, or requesting otherwise, and by mailing a similar notice to the relief afforded Mortgagor at its last known business address on the day of first publication. Such sale may be held at any place and at such time as the Mortgagee may specify, and in such manner as the Mortgagee may deem advisable, and may be conducted without bringing the Vessel to the place of sale, and the Mortgagee may become a purchaser at the sale. From time to time the Mortgagee may adjourn any such sale by announcement at the bankruptcy laws;time and place appointed for such sale or by any adjourned sale; and without notice or publication, the Mortgagee may make such sale at the time and place to which the same shall be so adjourned.
(vi) Tenant makes Bring suit at law, in equity or in admiralty, as it may be advised, to recover judgment for any and all amounts due, and collect the same from Mortgagor and/or out of any and all property of Mortgagor whether covered by this First Preferred Ship Mortgage or otherwise;
(vii) Commence a civil action in rem to foreclose this First Preferred Ship Mortgage and obtain an assignment for order to sell, and sell, the benefit of creditorsVessel, within pursuant to the meaning provisions of the bankruptcy laws Act of November 23, 1988, P.L. 100-710, 102 Stat. 4735, as amended, 46 U.S.C. 31325 and 31326, or Tenant their successor provisions, or by other judicial process as may be provided in the statutes.
(c) Mortgagor hereby consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have Vessel by Mortgagee with the right, at its election, costs thereof to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder be a cost of the existing term (and any applicable extension or renewal thereof) sale to be immediately due and payable, and thereupon all rents and other charges due hereunder to paid from the end proceeds of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rentsale or by Mortgagor.
(iiid) Landlord may elect to enter Each and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting every power or remedy herein specifically given to the Tenant from such action). All such remedies of Land- lord Mortgagee shall be cumulative and not exclusiveshall be in addition to every other power or remedy herein specifically given or now or hereafter existing at law, in equity, in admiralty or by statute, and in additioneach and every power or remedy, Landlord may pursue any other remedies that whether specifically herein given or otherwise so existing may be permitted exercised from time to time and as often and at such order as may be deemed expedient by law the Mortgagee, and the exercise or in equity. Forbearance by Landlord to enforce one or more the beginning of the remedies herein provided upon an event exercise of default any power or remedy shall not be deemed a waiver of the right to exercise at the same time or thereafter any other power or remedy. No delay or omission by the Mortgagee in the exercise of any right or power accruing upon any Event of Default shall be construed to constitute be a waiver of such default or remedyany acquiescence therein; nor shall the acceptance by the Mortgagee of any security or of any payment after such default or any payment on account of any past default be deemed a waiver of any right to take advantage of any other default or of any past default not completely cured thereby.
c(e) This Paragraph 28 shall be enforceable If, at any time after an Event of Default and previous to the maximum extent permissible actual sale of the Vessel by applicable lawthe Mortgagee or to any foreclosure proceedings, the Mortgagor completely cures all Events of Default and pays all expenses, advances and damages to the Mortgagee consequent on such Event of Default with interest at the rates provided in the Note and the Guaranty (as applicable), then the Mortgagee shall accept such payment and cure and restore the Mortgagor to its former position, but such actions shall not affect any subsequent Event of Default, nor impair any rights consequent thereon.
(f) The proceeds of any sale, and the unenforceability net earnings of any portion hereof shall not thereby render unenforceable any charter, operation or other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant use of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue Vessel by the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to Mortgagee under any covenant or agreement contained in this Lease or as a result of the breach powers herein specified, and the proceeds of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies judgment collected by the Mortgagee for any default hereunder and for breach the proceeds of any promise insurance or inducement of any claim for damages on account of the Vessel, received by Landlord the Mortgagee while exercising any such power, and any and all other proceeds collected by the Mortgagee, or in any proceedings hereunder, the application of which has not elsewhere been specifically provided for, shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.applied as follows:
Appears in 1 contract
Samples: First Preferred Ship Mortgage (Leisure Time Casinos & Resorts Inc)
Events of Default Remedies. a) The Each of the following events shall be deemed to be events constitute an “Event of default by Tenant under this LeaseDefault” hereunder:
(a) if (i) Tenant shall fail to pay any Rent installment of interest or principal is not paid within five (5) days after the same is due, (ii) the entire Indebtedness is not paid on or before the Maturity Date (or if the Maturity Date has been accelerated, upon such acceleration), or (iii) any other payment or charge due under the Note, this Mortgage or any other sums Loan Documents is not paid when due;
(b) if any Taxes payable directly to the billing authority by Mortgagor are not paid before interest becomes payable on the amount due or a penalty is assessed (provided that the foregoing provisions of money due hereunder this clause (b) shall be subject to the right to contest Taxes granted to Mortgagor in Paragraph 4(b) of this Mortgage, but only for so long as the conditions in Paragraph 4(b) of this Mortgage remain satisfied);
(c) if the Policies are not kept in full force and such failure shall continue for a period of effect and are not delivered to Mortgagee when required hereunder, or if the Policies are not delivered to Mortgagee within ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:request by Mortgagee;
(d) if any of the provisions of Paragraphs 7, 9, 19 or 39 herein are violated or not complied with;
(e) if any of the events described in Paragraph 41 shall occur;
(f) if at any time any representation or warranty of Mortgagor or any Guarantor made herein or in any guaranty, agreement, certificate, report, affidavit, owner’s affidavit, financial statement or other instrument furnished to Mortgagee shall be false or misleading in any respect;
(g) if any mortgagee under a mortgage on the Mortgaged Property, whether superior or subordinate to this Mortgage (i) demands payment in full or otherwise accelerates any indebtedness of Mortgagor or (ii) Tenant shall fail otherwise commences the exercise of any remedy available to comply with such party under any other Non-Monetary provision loan document;
(h) if Mortgagor fails to cure promptly any violation of any law or ordinance affecting the Mortgaged Property (provided that the foregoing provisions of this Lease clause (h) shall be subject to any right to contest such violation specifically granted to Mortgagor in Paragraph 8 of this Mortgage);
(i) if any Guaranty (as hereinafter defined) is terminated or any other agreement between Landlord and Tenantevent or condition occurs which, in the sole judgment of Mortgagee, may impair the ability of any Guarantor to perform its obligations under any Guaranty or any Guarantor attempts to withdraw, cancel or disclaim any Guaranty. If an Event of Default occurs under this subparagraph, then such Event of Default may be cured if applicable, after Landlord has provided within thirty (30) days prior written notice of the death of such Non-Monetary Default Guarantor or Indemnitor, Mortgagor provides Mortgagee with a substitute guarantor or indemnitor whose experience, creditworthiness, financial capacity and Tenant has failed ability to cure such Non-Monetary Default within said thirty perform the obligations of the Guarantor or Indemnitor (30as applicable) days provided; howeverunder the Loan Documents are reasonably satisfactory to Mortgagee;
(j) if a default by Mortgagor under any of the other terms, if covenants or conditions of the Note, this Mortgage or any other Loan Document shall occur and such default canshall not be have been cured within thirty (30) days after notice from Mortgagee, provided that if such default is not susceptible of being cured within such thirty (30) day period and if Tenant is Mortgagor shall have commenced the cure of such default within such thirty (30) day period and thereafter diligently attempting pursues such cure to cure completion, then such Default, Landlord thirty (30) day period shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than extended for a period of ninety (90) days from the occurrence of the default, provided, further, that the notice and grace period set forth in this subparagraph (j) shall not apply to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution any other Event of Default expressly set forth in this Paragraph 20 or to any other process Event of law Default defined as such in any action against Tenant;
(iv) Tenant shall fail other Loan Document or to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy any other covenant or shall cease condition with respect to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files which a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing grace period is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably deniedexpressly provided elsewhere; or
(viiik) The adjudication if any of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 aboveParagraphs 42(d) and/or Paragraph 42(f) are violated or not complied with, and/or if any representation or warranty in Paragraph 42(b) and/or 42(c) shall prove false or misleading in any respect and/or if any of the events described in Paragraph 42(e) shall occur;
(l) if a default by Mortgagor under any of the terms, covenants or conditions of the Lockbox Agreement (as hereinafter defined) shall occur.
b) Upon the occurrence of any event or events Event of default or other breach of this Lease by TenantDefault, whether enumerated in this Paragraph or not, Landlord the Indebtedness shall have immediately become due at the option to pursue of Mortgagee. Upon the occurrence of any one or more Event of Default, Mortgagor shall pay interest on the entire unpaid principal balance of the following remedies:
(i) Landlord shall have Note, as defined in and provided for in the rightNote. Upon the occurrence of any Event of Default, at its electionMortgagee may, to cancel and terminate this Lease and dispossess Tenant by summary proceedings the extent permitted under applicable law, elect to treat the fixtures included in the Mortgaged Property either as real property or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension as personal property, or renewal thereof) to be immediately due and payableboth, and thereupon all rents proceed to exercise such rights as apply thereto. With respect to any sale of real property included in the Mortgaged Property made under the powers of sale herein granted and other charges due hereunder conferred, Mortgagee may, to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be extent permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, include in such sale any fixtures included in the Mortgaged Property and the unenforceability of any portion hereof shall not thereby render unenforceable any other portionrelating to such real property.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. (a) The After the occurrence and during the continuance of an Event of Default, Seller hereby appoints Buyer as attorney-in-fact of Seller for the purpose of carrying out the provisions of this Agreement and taking any action and executing or endorsing any instruments that Buyer may deem necessary or advisable to accomplish the purposes hereof, which appointment as attorney-in-fact is irrevocable and coupled with an interest. With respect to each Transaction, each of the following events clauses (i) through (xviii) shall be deemed to be events an Event of default by Tenant Default under this LeaseAgreement:
(i) Tenant shall fail Seller fails to pay any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after repurchase the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:Purchased Loans upon the applicable Repurchase Date;
(ii) Tenant shall fail Seller fails to comply in all material respects with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultSection 4 hereof;
(iii) The leasehold hereunder demised shall be taken on execution an Act of Insolvency occurs with respect to Seller, Operating Partnership, Guarantor or other process of law in any action against TenantManager;
(iv) Tenant shall fail Seller, Operating Partnership or Guarantor makes a public disclosure or otherwise admits in writing that it is not Solvent or is not able or not willing to promptly move into, take possession perform any of and operate its business on the Premises when the Premises are ready for occupancy obligations hereunder or shall cease under any other agreement to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive dayswhich it is a party;
(v) Tenant either (A) the Transaction Documents shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting toany reason not cause, or requesting shall cease to cause, Buyer to be the relief afforded by owner free of any adverse claim of any of the bankruptcy lawsPurchased Loans, or (B) if a Transaction is recharacterized as a secured financing, the Transaction Documents with respect to any Transaction shall for any reason cease to create a valid first priority security interest in favor of Buyer in any of the Purchased Loans (in each case, other than due to the act or omission of Buyer);
(vi) Tenant makes if an assignment for event occurs which would constitute (a) an “event of default” under any Hedging Transaction or (b) a “termination event” or an “additional termination event” under any Hedging Transaction (and, in the benefit case of creditorsthis clause (b), Seller has failed to meet its obligation to pay the Early Termination Amount, if any, pursuant to the terms of such Hedging Transaction);
(vii) failure of Buyer to receive within one (1) Business Day after any Remittance Date the accreted value of the Price Differential (less any amount of such Price Differential previously paid by Seller to Buyer);
(viii) failure of Seller to make any other payment owing to Buyer which has become due, whether by acceleration or otherwise under the terms of this Agreement which failure is not remedied within the meaning of applicable period (in the bankruptcy laws or Tenant consents to the appointment case of a receiver failure pursuant to Section 4) or custodian for all or a substantial part three (3) Business Days (in the case of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxxany other such failure);
(xxxix) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy lawsany governmental, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissedregulatory, or such court order is not vacated self-regulatory authority shall have removed, suspended or such assumption or sequestration is not releasedterminated the material rights, privileges, or if operations of Seller, Operating Partnership, Guarantor or Manager;
(x) a Change of Control shall have occurred;
(xi) any representation made by Seller, Operating Partnership or Guarantor in any Transaction Document shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated (other than the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfactionrepresentations and warranties set forth in Section 10(b)(viii) of this Agreement made by Seller, which shall not be unreasonably deniedconsidered an Event of Default if incorrect or untrue in any material respect and which incorrect or untrue representation shall be solely used by Buyer as a basis to adjust the Market Value of the applicable Purchased Loan and to make determinations pursuant to Section 4(a) of this Agreement; provided further Seller shall not have made any such representation with actual knowledge that it was materially incorrect or untrue at the time made) and such representation breach continues unremedied for ten (10) Business Days after the earlier of receipt of notice thereof from Buyer or the discovery of such failure by the applicable Person;
(xii) Guarantor shall fail to observe any of the financial covenants set forth in the Guaranty or shall have defaulted or failed to perform under the Guaranty in any material respect;
(xiii) a final non-appealable judgment by any competent court in the United States of America having jurisdiction over Seller for the payment of money in an amount greater than $100,000 (in the case of Seller) or $5,000,000 (in the case of the Operating Partnership or Guarantor) shall have been rendered against Seller, Operating Partnership or Guarantor, unless execution of such judgment is stayed by the posting of cash or a bond or other collateral acceptable to Buyer in the amount of the judgment or otherwise is discharged (or provision is made for such discharge);
(xiv) Seller, Operating Partnership or Guarantor shall have defaulted or failed to perform under any note, indenture, loan agreement, guaranty, swap agreement or any other contract, agreement or transaction to which it is a party, which default (A) involves the failure to pay a monetary obligation in excess of $100,000 (in the case of Seller) or $5,000,000 (in the case of Operating Partnership or Guarantor), or (B) permits the acceleration of the maturity of obligations in excess of $100,000 (in the case of Seller) or $5,000,000 (in the case of Operating Partnership or Guarantor) by any other party to or beneficiary of such note, indenture, loan agreement, guaranty, swap agreement or other contract agreement or transaction; provided, however, that any such default, failure to perform or breach shall not constitute an Event of Default if Seller, Operating Partnership or Guarantor cures such default, failure to perform or breach, as the case may be, within the grace notice and/or cure period, if any, provided under the applicable agreement;
(xv) Seller shall fail to maintain on deposit in the Liquidity Reserve Account at least the Required Liquidity Amount;
(xvi) Manager resigns or is removed, terminated or otherwise no longer serves or is unable to serve as the asset manager and investment advisor of Guarantor pursuant to that certain Asset Management Agreement or Manager is in material breach of its duties or obligations under the Asset Management Agreement beyond any applicable notice and cure period and such Manager is not replaced with a successor manager reasonably acceptable to Buyer pursuant to an Asset Management Agreement acceptable to Buyer in its reasonable discretion within 60 days;
(xvii) any condition or circumstance shall exist which causes, constitutes or could reasonably be expected to cause or constitute a Material Adverse Effect; or
(viiixviii) The adjudication if Seller or Guarantor shall breach or fail to perform any of Tenant as a bankruptor; or
(ix) Tenant shall attempt the terms, agreements, conditions, covenants or obligations applicable to assignsuch Person under this Agreement, transfer, sublet all any other Transaction Document or any part of its interests in the Premises or Purchased Loan Document to which such Person is a party, other than as specifically otherwise referred to in this Lease without Landlord's prior written consent subject to the provisions definition of Section 19 above.
b) Upon the occurrence “Event of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payableDefault”, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law breach or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does is not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 remedied within twenty (Tenant20) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.Business
Appears in 1 contract
Samples: Master Repurchase Agreement (NorthStar Real Estate Income II, Inc.)
Events of Default Remedies. a) The following events shall be deemed to be events of default by Tenant under this Lease:
(i) Tenant shall fail If Lessee fails to pay any Rent installment of rent due under this lease or fails to comply with any other sums provision of money due hereunder and such failure shall continue for a period of this lease, within ten (10) days after the date such Rent notice by Lessor to Lessee demanding same, provided that said notice need not be given with regard to nonpayment of rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail failure to comply with any other Non-Monetary provision of this Lease lease after such notice has been given twice during the period of this lease, or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution Lessee abandons the leased premises or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on discontinues the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion use of the Premises leased premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent the purposes for which leased or unable to pay its debts as they become due, Tenant files removes from the leased premises any property against which Lessor is entitled in a petition in bankruptcy lessor's lien or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws creditors or Tenant consents to the appointment of if a receiver or other custodian is appointed for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all Lessee or any part of its interests Lessee's property by any court, then, in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenantsuch events, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord Lessor shall have the right, at its electionLessor's option, without puffing Lessee in default and without notice of default, (1) to cancel this lease effective immediately or effective as of any date Lessor may select, or (2) to proceed one or more times for past due installments of rent only, without prejudicing the right to proceed later for additional installments, or exercise any other remedy, or (3) to declare the unpaid rent for the entire unexpired term of this lease immediately due and terminate payable and at once demand and receive payment thereof, of (4) to have recourse to any other remedy or mode of redress to which Lessor may be entitled by law. In the event Lessor exercises the right to cancel this Lease and dispossess Tenant by summary proceedings or other lawful means;
lease, then (iia) Landlord Lessor shall have the right right, as soon as said cancellation is effective, to declare re-enter the leased premises and re-let the same for such price and on such terms as may be immediately available, without notice or court proceedings, Lessee hereby assenting thereto and expressly waiving any notice to vacate, and (b) Lessee shall be and remain liable not only for all amounts and rents due under this Lease rent payable to the date such cancellation becomes effective, but also for all damage or loss (including, without limitation, all rental loss) suffered by Lessor for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the remaining term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated lease resulting from such cancellation. Failure of Lessor to do under exercise any right granted in this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord section shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute as a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord subsequently enforce for a new default such right, and no indulgence by Lessor shall be construed as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach waiver of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordright therein granted.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Office Lease (LOUISIANA FOOD Co)
Events of Default Remedies. a) The Each of the following events shall be deemed to be events constitute an “Event of default by Tenant under this LeaseDefault” hereunder:
(a) if (i) Tenant shall fail to pay any Rent installment of interest or any other sums of money due hereunder and such failure shall continue for a period of ten principal is not paid within five (105) days after the date same is due, (ii) the entire Indebtedness of each Note is not paid on or before the Maturity Date (or if the Maturity Date has been accelerated, upon such Rent acceleration), or (iii) any other sums payment or charge due under the Note, this Mortgage or any other Loan Documents is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:not paid when due;
(b) if at any time any representation or warranty of Mortgagor made herein or in any guaranty, agreement, certificate, report, affidavit, owner’s affidavit, financial statement or other instrument furnished to Mortgagee shall be false or misleading in any respect;
(c) if any mortgagee under a mortgage on the Mortgaged Property, including, without limitation, the Second Mortgage, or the Third Mortgage, whether superior or subordinate to this Mortgage (i) demands payment in full or otherwise accelerates any indebtedness of Mortgagor or (ii) Tenant shall fail otherwise commences the exercise of any remedy available to comply with such party under any other Non-Monetary provision such mortgage or related loan, including, without limitation, the Second Mortgage or the Third Mortgage;
(d) if Mortgagor fails to cure promptly any violation of any law or ordinance affecting the Mortgaged Property (provided that the foregoing provisions of this Lease clause (h) shall be subject to any right to contest such violation specifically granted to Mortgagor in Paragraph 5 of this Mortgage);
(e) if a default by Mortgagor under any of the other terms, covenants or any other agreement between Landlord conditions of the this Mortgage shall occur and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default canshall not be have been cured within thirty (30) days after notice from Mortgagee, provided that if such default is not susceptible of being cured within such thirty (30) day period and if Tenant is Mortgagor shall have commenced the cure of such default within such thirty (30) day period and thereafter diligently attempting pursues such cure to cure completion, then such Default, Landlord thirty (30) day period shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than extended for a period of ninety (90) days from the occurrence of the default, provided, further, that the notice and grace period set forth in this subparagraph (e) shall not apply to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution any other Event of Default expressly set forth in this Paragraph 12 or to any other process Event of law Default defined as such in any action against Tenant;
(iv) Tenant shall fail other Loan Document or to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy any other covenant or shall cease condition with respect to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files which a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing grace period is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably deniedexpressly provided elsewhere; or
(viiif) The adjudication if an Event of Tenant as a bankruptor; or
(ix) Tenant Default shall attempt to assign, transfer, sublet all or any part of its interests in occur under the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Loan Agreement. Upon the occurrence of any event or events Event of default or other breach of this Lease by TenantDefault, whether enumerated in this Paragraph or not, Landlord the Indebtedness shall have immediately become due at the option to pursue of Mortgagee. Upon the occurrence of any one or more Event of Default, Mortgagor shall pay interest on the entire unpaid principal balance of the following remedies:
(i) Landlord shall have Note at the rightDefault Rate, at its electionas defined in and provided for in the Note. Upon the occurrence of any Event of Default, Mortgagee may, to cancel and terminate this Lease and dispossess Tenant by summary proceedings the extent permitted under applicable law, elect to treat the fixtures included in the Mortgaged Property either as real property or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension as personal property, or renewal thereof) to be immediately due and payableboth, and thereupon all rents proceed to exercise such rights as apply thereto. With respect to any sale of real property included in the Mortgaged Property made under the powers of sale herein granted and other charges due hereunder conferred, Mortgagee may, to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be extent permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, include in such sale any fixtures included in the Mortgaged Property and the unenforceability of any portion hereof shall not thereby render unenforceable any other portionrelating to such real property.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Mortgage, Assignment of Leases and Rents and Security Agreement (GTJ REIT, Inc.)
Events of Default Remedies. a) The If any of the following events (“Events of Default”) shall be deemed to be events of default by Tenant under this Leaseoccur:
(ia) Tenant the Borrowers shall fail to pay any Rent principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrowers shall fail to pay any interest on any Loan or any fee or any other sums amount (other than an amount referred to in clause (a) of money this Section 8.01) payable under this Agreement or any other Loan Document, when and as the same shall become due hereunder and payable, and such failure shall continue unremedied for a period of ten five (105) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:Business Days;
(iic) Tenant any representation, warranty or certification made or deemed made by or on behalf of any Loan Party, any Subsidiary, the Sponsor or Holdco in or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect (except for any representation or warranty that is qualified by materiality, Material Adverse Effect or similar phrase which shall prove to be incorrect in any respect) when made or deemed made;
(d) any Loan Party, any Subsidiary, the Sponsor or Holdco, as applicable, shall fail to comply observe or perform any covenant, condition or agreement contained in Section 5.01 (other than clause (d), (e), (f) or (g) of Section 5.01), Section 5.02, Section 5.03 (with any other Non-Monetary provision respect to the existence of the Loan Parties), Section 5.10, Section 5.11 or Section 5.12 or Article VI or Article VII of this Lease Agreement, or in Article IV of the Security Agreement or in Article IV of the Holdco Pledge Agreement or in Article IV of the Holdco Guaranty or in paragraph 2 of the Sponsor Negative Pledge Agreement;
(e) any Loan Party, any Subsidiary, the Sponsor or Holdco shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other agreement between Landlord than a breach which constitutes an Event of Default under another Section of this Section 8.01), and Tenant, if applicable, after Landlord has provided such failure shall continue unremedied for a period of thirty (30) days prior written notice after the earlier of (i) any Loan Party having knowledge of such Non-Monetary Default failure and Tenant has failed (ii) notice thereof from the Administrative Agent to cure such Non-Monetary Default within said thirty the Borrower Representative (30) days provided; however, if such default cannot which notice will be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultgiven at the request of any Lender);
(iiif) The leasehold hereunder demised any Loan Party, any Subsidiary or any Parent Entity shall be taken on execution fail to make any payment (whether of principal or other process interest and regardless of law amount) in respect of any action against TenantMaterial Indebtedness, when and as the same shall become due and payable (after giving effect to any applicable cure or grace period);
(ivg) Tenant any event or condition occurs that results in any Material Indebtedness or the Headquarters Loan becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness, or any trustee or agent on behalf of any such holder of Indebtedness to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall fail not apply to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion secured Indebtedness that becomes due as a result of the Premises for more than ten (10) consecutive daysvoluntary sale, transfer or other disposition of the property or assets securing such Indebtedness to the extent such sale, transfer or other disposition is permitted by the terms of Section 6.05;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of any Loan Party, any Subsidiary, or any Parent Entity or its debts, or of a substantial part of its assets, under any Debtor Relief Law or federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Loan Party, any Subsidiary or any Parent Entity or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 90 days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) any Loan Party, any Subsidiary or any Parent Entity shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Debtor Relief Law or federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Section, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official of such Loan Party, Subsidiary, or such Parent Entity, or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) Tenant make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(j) any Loan Party, any Subsidiary, or any Parent Entity shall become insolvent unable, admit in writing its inability or unable fail generally to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vik) Tenant makes an assignment one or more judgments for the benefit payment of creditorsmoney in an aggregate amount in excess of $1,500,000 shall be rendered against any Loan Party, within any Subsidiary or any Parent Entity or any combination thereof and the meaning same shall remain undischarged for a period of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 sixty (Xxxxxx60) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) consecutive days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, during which execution shall not be unreasonably denied; oreffectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Loan Party, any Subsidiary or any Parent Entity to enforce any such judgment;
(viiil) The adjudication of Tenant as an ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, could reasonably be expected to have a bankruptor; orMaterial Adverse Effect;
(ixm) Tenant any Lien purported to be created under any Collateral Document shall attempt cease to assignbe, transferor shall be asserted by any Loan Party, sublet all Subsidiary, Holdco, or any part of its interests in their Affiliates not to be, a valid and perfected Lien on any material Collateral, with the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenantpriority required hereby, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
except (i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach sale or other disposition of the applicable Collateral in a transaction permitted under the Loan Documents or (ii) as a result of the Administrative Agent’s failure to maintain possession of any promise stock certificates, promissory notes or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach other instruments delivered to it under the Collateral Documents;
(n) any material provision of any promise Loan Document shall cease for any reason to be in full force and effect, or inducement any Collateral Document shall cease to give the Administrative Agent, for the benefit of the Secured Parties, the Liens purported to be created thereby (other than with respect to an immaterial portion of the Collateral and except to the extent resulting from the failure of the Administrative Agent to maintain possession of Collateral as to which the Liens thereon are perfected solely by Landlord possession or from a sale, transfer or other disposition of such Collateral permitted hereby or by any Collateral Document), or any Loan Party or Holdco shall so state in writing;
(o) any Loan Party or any Parent Entity shall suffer any uninsured, un-indemnified or under insured loss of Collateral in excess of $1,500,000;
(p) a Change in Control shall occur;
(q) any “Event of Default” (as defined in the Headquarters Loan Agreement); or
(r) the Loan Guaranty or any Obligation Guaranty shall fail to remain in full force or effect or any action shall be limited taken to a suit for damages and/or injunction. Tenant hereby covenants thatdiscontinue or to assert the invalidity or unenforceability of the Loan Guaranty or any Obligation Guaranty, prior or any Loan Guarantor shall fail to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting comply with any of the foregoing terms or provisions of the Loan Guaranty or any Obligation Guaranty to which it is a party, or any Loan Guarantor shall deny that it has any further liability under the Loan Guaranty or any Obligation Guaranty to which it is a party, or shall give notice to such effect, including, but not limited to notice of termination delivered pursuant to Section 11.08 or any notice of termination delivered pursuant to the terms of any Obligation Guaranty; then, and in every such event (other than an event with respect to the Borrowers described in clause (h) or (i) of this Section), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower Representative, take either or both of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest, notice of intent to accelerate, notice of acceleration or other notice of any kind, all of which are hereby waived by the Borrowers; and in case of any event with respect to the Borrowers described in clause (h) or (i) of this Section, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest, notice of intent to accelerate, notice of acceleration or other notice of any kind, all of which are hereby waived by the Borrowers. In addition, if any Event of Default exists, the Administrative Agent may (and if directed by the Required Lenders, shall) foreclose or otherwise enforce any Lien granted to the Administrative Agent, for the benefit of the Secured Parties, to secure payment and performance of the Obligations in accordance with the terms of the Loan Documents and exercise any and all rights and remedies (afforded by the laws of the State of New York or any other remedy) in a proceeding instituted jurisdiction, by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause any of action versus Landlordthe Loan Documents, by equity, or otherwise.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. Without limiting the generality of Section 1 hereof, any event or condition which constitutes an Event of Default under the Financing Agreement or any other Loan Documents shall constitute an "Event of Default" under this Mortgage. If any Event of Default shall have occurred and be continuing:
(a) The Mortgagee may exercise in respect of the Mortgaged Property, in addition to other rights and remedies provided for herein or otherwise available to it, all of the rights and remedies of a secured party on default under the UCC (whether or not the UCC applies to the Mortgaged Property), and also may without notice or demand, as it deems advisable to protect and enforce its rights against the Mortgagor and in and to the Mortgaged Property, take the following events shall actions, each of which may be deemed to be events pursued concurrently or otherwise, at such time and in such order as the Mortgagee, in its sole discretion, may determine, without impairing or otherwise affecting the other rights and remedies of default by Tenant under this Lease:
the Mortgagee: (i) Tenant shall fail to pay any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after declare the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) entire unpaid Indebtedness to be immediately due and payable, and exercise all other rights it may have under any Loan Document; (ii) enter into or upon the Mortgaged Property, either personally or by its agents or nominees and dispossess the Mortgagor and its agents and servants therefrom and thereupon the Mortgagee may (A) use, operate, manage, control, insure, maintain, repair, restore and otherwise deal with all rents of the Mortgaged Property and conduct business thereat; (B) complete any construction on the Mortgaged Property in such manner and form as the Mortgagee, in its sole discretion, deems advisable; (C) make alterations, additions, renewals, replacements and improvements to or on the Mortgaged Property; and (D) exercise all rights and powers of the Mortgagor with respect to the Mortgaged Property, whether in the name of the Mortgagor or otherwise, including, without limitation, the right to make, cancel, enforce or modify leases, obtain and evict tenants, and demand, sue xxx, collect and receive all earnings, revenues, rents, issues, profits and other charges due hereunder income of the Mortgaged Property; (iii) institute proceedings for the complete foreclosure of this Mortgage, in which case the Mortgaged Property may be sold for cash, on credit or for future delivery, in one or more parcels; (iv) with or without entry and, to the end extent permitted and pursuant to the procedures provided by applicable law, institute proceedings for the partial foreclosure of this Mortgage for the Obligations then due and payable, subject to the Lien of this Mortgage continuing unimpaired and without loss of priority so as to secure the balance of the initial term Obligations; (v) sell any of the Mortgaged Property and any renewal termall estate, if applicableclaim, demand, right, title and interest of the Mortgagor therein and rights and equities of redemption and statutory rights of redemption thereof, pursuant to the power of sale or otherwise, at one or more sales, in one or more parcels, at such times and places, upon such terms and after such notice thereof as may be required or permitted by law, and in the event of a sale, by foreclosure or otherwise, of less than all of the Mortgaged Property, this Mortgage shall be acceleratedcontinue as a Lien on the remaining portion of the Mortgaged Property; however(vi) institute an action, Landlord shall credit Tenant for any re-renting income suit or proceeding in equity for the Premisesspecific performance of any agreement contained herein or in any other Loan Document to which the Mortgagor is a party; (vii) recover judgment on any such other Loan Document either before, during or after deducting Landlord's costs necessary to or in lieu of any proceedings for the enforcement of this Mortgage; and (viii) apply for and obtain such alternate source the appointment of renta custodian, trustee, receiver, liquidator or conservator of the Mortgaged Property, without regard for the adequacy of the security for the Obligations and without regard for the solvency of the Mortgagor or any Guarantor of the Obligations or any other Person.
(iiib) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord The Mortgagee shall not be liable obligated to make any sale of any of the Mortgaged Property regardless of notice of sale having been given. The Mortgagee may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and, except as otherwise provided by Applicable Law, such sale may without further notice be made at the time and place to which it was so adjourned. In any sale made by virtue of this Mortgage (whether made under the power of sale herein granted or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale), the Mortgagee may bid for and acquire any damages resulting of the Mortgaged Property and in lieu of paying cash therefor may make settlement for the purchase price by crediting upon the Indebtedness the net sale price after deducting therefrom the expenses of the sale and any other sums payable pursuant to Section 8 hereof. The Mortgagee shall not be required to take possession of any of the Mortgaged Property prior to the Tenant from sale thereof or to deliver possession of the Mortgaged Property to the purchaser at such action)sale. All Any such remedies sale made by virtue of Land- lord this Mortgage shall be cumulative operate to divest all of the estate, right, title, interest, claim and not exclusivedemand whatsoever, and in addition, Landlord may pursue any other remedies that may be permitted by whether at law or in equity. Forbearance by Landlord to enforce one or more , of the remedies herein provided upon an event Mortgagor in and to the properties and rights so sold, and shall be a perpetual bar both at law and in equity against the Mortgagor and against any Persons claiming the same, or any part thereof, either from, through or under the Mortgagor.
(c) If the Mortgagor is the occupant of any of the Mortgaged Property, it will immediately surrender possession of the space so occupied to the Mortgagee, and if the Mortgagor is permitted to remain in possession, the possession shall be as a month-to-month tenant of the Mortgagee and, on demand, the Mortgagor will pay to the Mortgagee monthly, in advance, a reasonable rental for the space so occupied and in default thereof the Mortgagor may be dispossessed by the usual summary proceedings.
(d) Any cash held by the Mortgagee as part of the Mortgaged Property and all cash proceeds received by the Mortgagee in respect of any sale of, collection from, or other realization upon, all or any part of the Mortgaged Property may, in the discretion of the Mortgagee, be held by the Mortgagee as collateral for, and/or then or at any time thereafter applied (after payment of any amounts payable to the Mortgagee pursuant to Section 8 hereof) in whole or in part by the Mortgagee against, all or any part of the Obligations in such order as the Mortgagee shall not be deemed or construed to constitute a waiver elect. Any surplus of such default cash or remedycash proceeds held by the Mortgagee and remaining after payment in full of all of the Obligations shall be paid over to the Mortgagor or to such Person as may be lawfully entitled to receive such surplus.
c(e) This Paragraph 28 shall be enforceable to In the maximum extent permissible by applicable law, and event that the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise proceeds of any such remediessale, it will give collection or realization are insufficient to pay all amounts to which the mortgagees Mortgagee is legally entitled, the Mortgagor shall be liable for the deficiency, together with interest thereon at the highest rate specified in the Financing Agreement for interest on overdue principal or such other rate as shall be fixed by Applicable Law, together with the Property written notice costs of collection and a the reasonable period fees of any attorneys employed by the Mortgagee to collect such deficiency.
(f) If, at any time in which prior to cure any alleged default. Notwithstanding anything to foreclosure sale, the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (Mortgagor or any other remedy) Person tenders payment of the amount necessary to satisfy the Obligations, the same shall be deemed to be a voluntary prepayment, in a proceeding instituted by either party to enforce that party's rights which case such payment must include the premium required under this Leaseany applicable prepayment provisions contained in the Loan Documents, if any. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.This provision
Appears in 1 contract
Samples: Mortgage, Security Agreement, Assignment of Leases and Rents (Decora Industries Inc)
Events of Default Remedies. The occurrence of any one or more of the following events shall constitute an "EVENT OF DEFAULT" hereunder by Tenant:
(a) The following events shall be deemed to be events of default failure by Tenant under this Lease:
(i) Tenant shall fail to pay make any payment of Rent or any other sums of money due hereunder payment required hereunder, as and when due, where such failure shall continue for a period of ten often (10) days after notice thereof from Landlord to Tenant; provided, however, an Event of Default shall occur hereunder without any obligation of Landlord to give any notice if Landlord has given Tenant written notice under this Section 19.1(a) on more than one (1) occasion during the date twelve (12) month interval preceding such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:failure by Tenant;
(iib) If Tenant shall abandon the Premises (whether or not the keys shall have been surrendered or the rent shall have been paid);
(c) If Tenant shall fail to comply with maintain any insurance required hereunder;
(d) If Tenant shall fail to deliver a replacement Letter of Credit as required under Article 24 below;
(e) If Tenant causes or suffers any release of Hazardous Materials in or near the Condominium;
(f) If Tenant shall make a Transfer in violation of the provisions of Article 16 above, or if any event shall occur or any contingency shall arise whereby the Lease, or the term and estate thereby created, would (by operation of law or otherwise) devolve upon or pass to any person, firm or corporation other Non-Monetary provision than Tenant, except as expressly permitted under Article 16 hereof;
(g) If Tenant shall fail to deliver an estoppel certificate as required pursuant to Section 17.5 above;
(h) The failure by Tenant to observe or perform any of the covenants or provisions of this Lease to be observed or any other agreement between Landlord and performed by Tenant, if applicableother than as specified above, after Landlord has provided and such failure continues for more than thirty (30) days prior written after notice thereof from Landlord; provided, further, that if the TOLERRX LEASE / BUILDING 300 / EXECUTION VERSION -39- nature of Tenant's default is such Non-Monetary Default and that more than thirty (30) days are reasonably required for its cure, then Tenant has failed shall not be deemed to be in default if Tenant shall commence such cure such Non-Monetary Default within said thirty (30) day period and thereafter diligently prosecute such cure to completion, which completion shall occur not later than ninety (90) days provided; howeverfrom the date of such notice from Landlord;
(i) Tenant shall be involved in financial difficulties as evidenced by an admission in writing by Tenant of Tenant's inability to pay its debts generally as they become due, if or by the making or offering to make a composition of its debts with its creditors;
(j) an attachment on mesne process, on execution or otherwise, or other legal process shall issue against Tenant or its property and a sale of any of its assets shall be held thereunder;
(k) any judgment, attachment or the like in excess of $75,000 shall be entered, recorded or filed against Tenant in any court, registry, etc. and Tenant shall fail to pay such default canjudgment within forty five (45) days after the judgment shall have become final beyond appeal or to discharge or secure by surety bond such lien, attachment, etc. within forty five (45) days of such entry, recording or filing, as the case may be;
(l) the leasehold hereby created shall be taken on execution or by other process of law and shall not be cured revested in Tenant within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultthereafter;
(iiim) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian sequesterer, trustee or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration similar officer shall be appointed by a court of competent jurisdiction to take charge of all or substantially all any part of Tenant's propertyproperty and such appointment shall not be vacated within thirty (30) days; or
(n) any proceeding shall be instituted by or against Tenant pursuant to any of the provisions of any Act of Congress or State law relating to bankruptcy, and reorganizations, arrangements, compositions or other relief from creditors, and, in the case of any proceeding instituted against it, if Tenant shall fail to have such proceedings dismissed within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant is adjudged bankrupt or insolvent as a bankruptorresult of any such proceeding. Upon an Event of Default, Landlord may, by notice to Tenant, elect to terminate the Lease; or
and thereupon (ix) Tenant and without prejudice to any remedies which might otherwise be available for arrears of Rent or preceding breach of covenant or agreement and without prejudice to Tenant's liability for damages as hereinafter stated), upon the giving of such notice, the Lease shall attempt terminate as of the date specified therein as though that were the Expiration Date. Without being taken or deemed to assignbe guilty of any manner of trespass or conversion, transferand without being liable to indictment, sublet all prosecution or damages therefor, Landlord may, forcibly if necessary, enter into and upon the Premises (or any part thereof in the name of the whole); repossess the same, as of its interests former estate; and expel Tenant and those claiming under Tenant. Wherever "Tenant" is used in the Premises or in subsections (h), (i), (j), (k), (l), (m), and (n) of this Lease without Landlord's prior written consent subject Section 19.1, it shall be deemed to the provisions include any parent entity of Section 19 above.
b) Upon the occurrence Tenant and any guarantor of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus LandlordThe words "re-entry" and "re-enter" as used in the Lease are not restricted to their technical legal meanings.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Lease Agreement (Tolerrx Inc)
Events of Default Remedies. a) The following events 12.1 If the Tenant shall be deemed to be events default in the payment of default by Tenant under Annual Rent or Additional Rent on the date provided for in this Lease:
(i) Tenant shall fail to pay any Rent or any other sums of money due hereunder , and if such failure default shall continue for a period of ten five (105) days after the date such Rent when due; or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) in the event that Tenant shall default or fail in the performance of a covenant or agreement on its part to comply with any other Non-Monetary provision of be performed in this Lease or any (other agreement between Landlord than the payment of Rent), and Tenant, if applicable, after Landlord has provided such default shall not have been cured for a period of thirty (30) days prior after receipt by Tenant of written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; howeverdefault from Landlord, or if such default cannot not, with due diligence, be cured within thirty (30) days days, and Tenant shall not have commenced the remedying thereof within such period or shall not be proceeding with due diligence; or if Tenant is diligently attempting to cure such Defaultbecomes insolvent, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but admits in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on writing the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable inability to pay its debts as they become due, Tenant files a petition in bankruptcy is adjudged bankrupt (by way of voluntary or for reorganization involuntary petition) under the bankruptcy laws Federal Bankruptcy Act or an admissionany Federal insolvency proceedings as now in effect or hereafter amended, answer seeks reorganization or other responsive pleading consenting tosimilar arrangement or relief under the Federal Bankruptcy Act or any Federal insolvency proceedings, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of if a receiver or custodian for all trustee is appointed in connection with any of the foregoing or a substantial part of its propertysimilar proceedings; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant if there shall occur a dissolution of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissedliquidation, or such court order commencement of an action for dissolution or liquidation of the Tenant which is not vacated or stayed within one hundred twenty (120) days after the commencement of such assumption or sequestration is not releasedaction, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payablethen, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for case, Landlord, at any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord time thereafter, may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting give written notice to the Tenant from Tenant, specifying such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default stating that this Lease shall not be deemed or construed to constitute a waiver of expire on the date specified in such default or remedy.
c) This Paragraph 28 notice which shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within at least thirty (30) days after the receipt by Landlord giving of written such notice from Tenant and upon the date specified in such notice, this Lease and all rights of the alleged failure Tenant hereunder shall terminate, title to perform the improvements shall vest in Landlord but Tenant shall remain liable as hereafter provided. Upon the expiration of this Lease in the manner above set forth or by summary proceedings or by any other appropriate legal action or proceedings, Landlord may, without further notice, re-enter the Demised Premises and does not continue SpanishRiverdispossess Tenant or any person or persons occupying said premises and so to re-possess and enjoy the Demised Premises, subject, however, to the rights of any Occupancy Tenants.Manchester
12.2 Should the Term at any time be ended under the terms and conditions hereof, or in any other way, the Tenant hereby covenants and agrees to surrender and deliver up the Demised Premises and property peaceably to the Landlord immediately upon the termination of such Term.September 22
12.3 Notwithstanding anything contained herein to the contrary, 1997.ajm Initials: ----- ----- Page 15 if Tenant shall have been in default under this Section 13 more than two (Tenant2) times in any twelve (12) month period, notwithstanding any subsequent cure of the default, such default may no longer be capable of being cured at Landlord) ’s election.
12.4 No termination or expiration of this Lease pursuant to pursue the cure thereof. Except as otherwise specifically provided in this Section 13 or any other terms and provisions of this Lease, in no or any termination by summary proceedings or otherwise, shall relieve Tenant of its liability, obligations, and any damages under this Lease and any renewal or extension thereof, if the right to renew or extend is exercised by Tenant, and such liability, obligations, and damages shall survive any such termination or expiration.
12.5 Nothing contained herein shall prevent the enforcement of any claim Landlord may have against Tenant for anticipatory breach of the unexpired term of this Lease. In the event of a breach or threatened breach by Tenant of any of the covenants or provisions of this Lease, Landlord shall Tenant have the right of injunction and the right to terminate invoke any remedy allowed at law or rescind in equity as if re-entry, summary proceedings and other remedies were not herein provided for. Mention in this Lease of any particular remedy shall not preclude Landlord from any other remedy in law or in equity. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant being evicted or dispossessed for any cause, or in the event of Landlord obtaining possession of the Premises, by reason of the violation by Tenant of any of the covenants and conditions of this lease or otherwise. No receipt of rent by Landlord from Tenant after the termination of this Lease or after giving any notice, shall reinstate, continue or extend the term of this Lease. No receipt of rent after the commencement of suit, or after final judgment for possession of the Premises, shall reinstate, continue or extend the term, or affect the suit of said judgment. Any remedies specifically provided for in this Lease are in addition to offset and not exclusive of any other remedy available to the Rent amount due Tenant or the Landlord under applicable law. Any measure or damages provided for in this Lease shall not be deemed to limit or prejudice the Landlord's right to prove and obtain all the damages which it may sustain as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result and all breaches of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause shall reimburse Landlord for all legal fees incurred by Landlord in enforcing the terms of action versus Landlordor arising out of or in connection with this Lease upon a default of the Lease by Tenant beyond applicable cure periods.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Ground Lease Agreement (EVO Transportation & Energy Services, Inc.)
Events of Default Remedies. (a) The following events shall be deemed to be events of default by Tenant under this Lease:Lease (hereinafter called an "Event of Default").
(i1) Tenant shall fail to timely pay any Rent or any other sums of money additional Rent when due hereunder and such failure shall continue for a period of ten (10) days after the date written notice of such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred default shall have been delivered to as a "Monetary Default:Tenant;
(ii2) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord not requiring the payment of Rent, all of which terms, provisions and Tenantcovenants shall be deemed material, if applicable, after Landlord has provided and such failure shall continue for a period of thirty (30) days prior after written notice of such Nonfailure is delivered to Tenant unless that if such failure cannot reasonably be cured within such 30-Monetary Default and day period, Tenant has failed to cure shall not be in default hereunder as long as Tenant commences the remedying of such Non-Monetary Default failure within said such thirty (30) days provided; however, if day period and diligently prosecutes such default cannot be cured within thirty (30) days and if Tenant is diligently attempting cure to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultcompletion;
(iii3) The leasehold hereunder demised Tenant takes any action to, or notifies Landlord that Tenant intends to file a petition under any section or chapter of the United States Bankruptcy Code, as amended from time to time, or under any similar law or statute of the United States or any state thereof; or a petition shall be taken on execution or other process of law in filed against Tenant under any action against Tenantsuch statute and not be dismissed within sixty (60) days thereafter;
(iv4) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian trustee shall be appointed for Tenant's leasehold interest in the Premises or for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all assets of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events Event of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or notDefault, Landlord shall have the option may, utilizing judicial process, at its option, in addition to pursue all other remedies given hereunder or by law or equity, do any one or more of the following remedies:following: (1) terminate this Lease, in which event Tenant shall immediately surrender possession of the Premises to Landlord; (2) enter upon and take possession of the Premises and remove Tenant therefrom, with or without having terminated this Lease.
(ic) Exercise by Landlord of any one or more remedies hereunder shall have not constitute forfeiture or an acceptance of surrender of the rightPremises by Tenant, at its election, to cancel it being understood that such surrender can be effected only with the written agreement of Landlord and terminate Tenant.
(d) In the event that this Lease is terminated by reason of an Event of Default, Tenant covenants to pay forthwith to Landlord upon demand, as compensation, all Rent and dispossess additional Rent which Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under covenants in this Lease for to pay and to perform in the remainder of same manner and to the existing term (same extent and any applicable extension or renewal thereof) at the same time as if this Lease had not been terminated. In calculating the amounts to be immediately due and payable, and thereupon all rents and other charges due hereunder paid by Tenant pursuant to the end of the initial term and any renewal term, if applicable, preceding sentence Tenant shall be accelerated; however, credited with the net proceeds of any rent and additional rent obtained by Landlord shall credit Tenant for any re-renting income for by reletting the Premises, after deducting all of Landlord's costs reasonable expenses in connection with such reletting, including, without limitation, all repossession costs, brokerage commissions, fees for legal services and expenses of preparing the Premises for such reletting, it being agreed by Tenant that Landlord may, but shall not be obligated to, (i) relet the Premises or any part or parts thereof, for a term or terms which may at Landlord's option be equal to or less than or exceed the period which would otherwise have constituted the balance of the Lease Term and may grant such concessions and free rent as Landlord in its reasonable judgment considers advisable or necessary to relet the same, and (ii) make such alterations, repairs and decorations in the Premises as Landlord in its reasonable judgment considers advisable or necessary to relet the same. No action of Landlord in accordance with the foregoing or failure to relet or to collect rent under reletting shall operate or be construed to release or reduce Tenant's liability as aforesaid. Nothing contained in this Lease shall, however, limit or prejudice the right of Landlord to prove for and obtain such alternate source in proceedings under any federal or state law relating to bankruptcy or insolvency or reorganization or arrangement, an amount equal to the maximum allowed by any statute or rule of rentlaw in effect at the time when, and governing the proceedings in which, the damages are to be proved, whether or not the amount be greater than the amount of the loss or damages referred to above.
(iiie) Landlord If, after an Event of Default, Tenant should fail to make any payment, perform any obligation, or cure any default hereunder, Landlord, without obligation to do so and without thereby waiving such failure or default, may elect to make such payment, perform such obligation, and/or remedy such other default for the account of Tenant (and enter and repossess the Premises and relet the Premises for Tenant's accountsuch purpose), holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusiveshall, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt following written demand, pay all costs, incurred by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiverin taking such remedial action.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Lease Agreement (Mykrolis Corp)
Events of Default Remedies. (a) The Any of the following events shall be deemed to be events an "Event of default by Tenant under this LeaseDefault" hereunder:
(i) Tenant shall fail to pay If any Rent representation or warranty by Pledgor herein or any other sums of money due hereunder and such failure representation or warranty in any writing furnished in connection with or pursuant to this Pledge, the Loan Documents or the Option Agreement shall continue for a period of ten (10) days after be determined by Lender to be false or misleading in any material respect on the date such Rent or other sums is due (with no notice being required as of Landlord); hereinafter referred to as a "Monetary Default:which made;
(ii) Tenant If Pledgor materially defaults in the performance or observance of any agreement, covenant, term or condition contained in this Pledge;
(iii) If Pledgor should be in default after the expiration of any cure period under any of the Loan Documents or Option Agreement
(iv) If Pledgor uses the proceeds of the Loan for any purpose other than the purpose of paying the operating expenses of Pledgor's business owed to any of those set forth on Exhibit A hereto;
(v) If Pledgor fails to withhold payroll taxes from any such payment to employees; or
(vi) If Pledgor shall fail have filed against it in any proceeding or other action an involuntary petition, arrangement, imposition, readjustment composition, liquidation, dissolution, winding-up or an answer proposing an adjudication of it as bankrupt or insolvent, or, an action seeking to comply with any other Non-Monetary provision of this Lease appoint a trustee, receiver, custodian, or conservator or liquidator, or any similar law or regulation, federal, state, domestic or foreign now or hereafter in effect is subject to a reorganization pursuant to the United States Bankruptcy Code, and any such filing, answer, action or other agreement between Landlord proceeding is approved by any court of competent jurisdiction and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default canthe order approving the same shall not be cured vacated, stayed, set aside or discharged within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;from entry.
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events an Event of default or other breach of this Lease by TenantDefault, whether enumerated in this Paragraph or not, Landlord Lender shall have the option to pursue any one or more all of the following remedies:
(i) Landlord Lender shall have all of the rightrights and remedies provided under this Pledge and to a secured party by the Uniform Commercial Code in effect in the State of Colorado, the State of Illinois, State of California and any other jurisdiction in which the Collateral may be located at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful meansthat time;
(ii) Landlord Lender, except to the extent prohibited by law, without in any manner waiving such Event of Default, may, at its option, without further notice and without regard to the adequacy of any security for the Loan, either in person or by agent, with or without bringing any action or proceeding, collect and receive all distributions, payments, income, principal, interest and earnings arising, accruing or becoming due to Pledgor with respect to the Collateral;
(iii) Lender, except to the extent prohibited by law, without further act or the necessity for demand of performance or any other demand, advertisement or notice of any kind of time and place of transfer, may cause the Collateral to be transferred to its name or to the name of its nominee, and thereafter exercise as to the Collateral all of the rights, provisions and duties of an owner.
(iv) Lender, except to the extent prohibited by law, without the necessity for demand of performance or other demand, advertisement or notice of any kind of time and place of public or private sale to or upon any other person (all and each of which demands, advertisements and/or notices are expressly waived by Pledgor) shall have the right to declare all amounts forthwith collect, receive, appropriate and rents due under this Lease for realize upon the remainder Collateral, or any part thereof, transfer and register in its name or in the name of its nominee the whole or any part of the existing term Collateral, exchange certificates or instruments representing or evidencing Collateral for certificates or instruments of smaller or larger denominations, and exercising the voting rights thereto, and/or may forthwith sell, assign, give an option or options to purchase, contract to sell or otherwise dispose of and deliver the Collateral or any part thereof, in one or more portions at public or private sale or sales, upon such terms and conditions as it may deem advisable and at such prices as it may deem best (and without any applicable extension requirements for "installing"), for cash, for credit or renewal thereoffor future delivery without assumption of any credit risk, with the right of Lender upon any such sale or sales, public or private, to purchase the whole or any part of the Collateral so sold. In connection with any such sale, assignment, option, contract, disposition or delivery:
(A) The sale of Collateral shall have been made in a commercially reasonable manner if conducted in conformity with reasonable commercial practices of banks disposing of similar property, but in any event, Lender may sell on such terms as Lender may choose, without assuming any credit risk and without any obligations to be immediately due advertise. Pledgor hereby waives any claims against Lender arising by reason of the fact that the price at which any of the Collateral may have been sold at any private sale was less than the price that might have been obtained at a public sale, even if Lender accepts the first offer received and payable, does not offer the Collateral to more than one offeree;
(B) Lender may apply the proceeds of any such sale or disposition to the satisfaction of Lender's attorneys' fees and thereupon all rents expenses and other charges due hereunder to the end of the initial term costs and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting connection with Lender's retaking, holding, preparing for sale, and for any difference between selling of the amount of rent received from such reletting and the rent due and payable under the term of this Lease; andCollateral;
(ivC) Landlord may enter upon In the Premises and do whatever Tenant event that notice is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusivenecessary, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of mailed to Pledgor at the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 address given below five (Tenant5) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, Business Days prior to the exercise date of any such remedies, it will give public sale of the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything Collateral subject to the contrary contained herein, nothing shall prevent Tenant from maintaining lien and security interest created herein or asserting any of prior to the foregoing remedies (date after which private sales or any other remedy) disposition of said Collateral will be made shall constitute reasonable notice, but notice given in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.any other reasonable manner or at any other reasonable time shall be sufficient;
Appears in 1 contract
Samples: Pledge and Security Agreement (Family Golf Centers Inc)
Events of Default Remedies. Paragraph 11 (“Events of Default”) of the Agreement is hereby amended by the deletion in their entirety of the first paragraph thereof (other than the clauses referenced in Section 14(a) below) and Paragraphs 11(a) through (i) thereof and by the addition of the provisions (a) The through (c) of Section 14 of this Annex I:
(a) Together with clauses (iii) through (v) and (vii) of the first paragraph of Paragraph 11 of the Agreement, the following events shall be deemed to be events constitute an event of default by Tenant under this Lease:hereunder (each an “Event of Default”):
(i) Tenant shall fail failure of Seller to pay any Rent repurchase or any other sums the failure of money due hereunder and Buyer to transfer the Purchased Loan on the applicable Repurchase Date (except when such failure shall continue for to transfer is a period result of ten (10) days after the date Buyer’s inability to obtain necessary consents to, or fulfill restrictions on, such Rent or other sums is due (with no notice being required of Landlordtransfer); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail failure of Seller to comply apply any Income received by Seller in accordance with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultthe provisions hereof;
(iiiA) The leasehold hereunder demised the Transaction Documents shall for any reason not cause, or shall cease to cause, Buyer to be taken on execution the owner or, if recharacterized as a secured financing, a secured party with respect to any of the Purchased Loans or the collateral specified in Section 6(a) and 6(c) free of any adverse claim, liens and other process rights of law others (other than as granted herein) or (B) if a Transaction is recharacterized as a secured financing, the Transaction Documents with respect to any Transaction shall for any reason cease to create a valid first priority security interest in favor of Buyer in any action against Tenantof the Purchased Loans or the collateral specified in Sections 6(a) and 6(c) or (C) if the Transaction Documents shall cease to be in full force and effect or if their enforceability is challenged by Seller;
(iv) Tenant failure of Seller to make the payments required under Section 4 or Section 5(b) on any Remittance Date which failure is not remedied within one (1) Business Day;
(v) failure of Seller to make any other payment owing to Buyer which has become due, whether by acceleration or otherwise, under the terms of the Agreement which failure is not remedied within the applicable period (in the case of a failure pursuant to Section 4) or, if no period is specified, five (5) Business Days after notice thereof to Seller; provided, however, that Buyer shall fail not be required to promptly move into, take possession provide notice in the event of and operate its business a failure by Seller to repurchase on the Premises Repurchase Date;
(vi) breach by Seller in the due performance or observance of any term, covenant or agreement contained in Section 11(k) of this Annex I;
(vii) Change of Control shall have occurred with respect to the Seller or Guarantor;
(viii) any representation made by Seller or Buyer shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated; provided that the Premises are ready for occupancy representations and warranties set forth in Section 10(a) (vi) or (viii) (in the case of (vi), with respect to the affected or Purchased Loans only) made by Seller shall cease to do business not be considered an Event of Default if incorrect or untrue in or vacate or abandon any substantial portion of material respect, if Buyer terminates the Premises for more related Transaction and Seller repurchases the related Purchased Loans on an Early Repurchase Date no later than ten (10) consecutive daysBusiness Days after receiving written notice of such incorrect or untrue representation; provided, however, that if Seller shall have made any such representation with knowledge that it was materially incorrect or untrue at the time made, such misrepresentation shall constitute an Event of Default;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or a final judgment by any part of its interests competent court in the Premises United States of America for the payment of money (in the case of Seller) or for the payment of money in this Lease without Landlord's prior written consent subject to an amount greater than $5,000,000 (in the provisions case of Section 19 above.
bGuarantor) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have been rendered against Seller or Guarantor, as the option to pursue any one case may be, and remained undischarged or more unpaid for a period of the following remedies:
forty-five (i45) Landlord shall have the rightdays, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful meansduring which period execution of such judgment is not effectively stayed;
(iix) Landlord Guarantor shall have defaulted or failed to perform under any note, indenture, loan agreement, guaranty, swap agreement or any other contract, agreement or transaction to which it is a party, and which default (A) involves the right failure to declare all amounts pay a matured obligation in excess of $10,000,000, or (B) involving an obligation of at least $10,000,000 is a monetary default or a material non-monetary default and rents due under this Lease for results in acceleration or permits the remainder acceleration of the existing term obligation by any other party to or beneficiary of such note, indenture, loan agreement, guaranty, swap agreement or other contract agreement or transaction; provided, however, that any such default, failure to perform or breach shall not constitute an Event of Default if Guarantor cures such default, failure to perform or breach, as the case may be, within the grace period, if any, provided under the applicable agreement;
(and any applicable extension or renewal thereofxi) to be immediately due and payable, and thereupon all rents and other charges due hereunder to As of the end of any fiscal quarter (A) Guarantor’s (1) Debt to Equity Ratio is greater than 5:1, (2) Tangible Net Worth is less than the sum of (x) $129,750,000 and (y) 75% of the proceeds of any equity issuances occurring after Guarantor’s initial term and any renewal termpublic offering, if applicable(3) Fixed Charge Coverage Ratio is less than 1.50:1, shall be accelerated; howeveror (4) Minimum Liquidity is less than $10,000,000, Landlord shall credit Tenant for any re-renting income for the Premisesfirst two years after the date of this Agreement, after deducting Landlord's costs necessary and less than $15,000,000 thereafter; or (B) Guarantor fails to obtain such alternate source of rentmaintain cumulative positive EBITDA for the three fiscal quarters most recently ended.
(iiixii) Landlord may elect if Seller or Buyer shall breach or fail to enter and repossess perform any of the Premises and relet terms, covenants, obligations or conditions of the Premises for Tenant's accountAgreement, holding Tenant liable other than as specifically otherwise referred to in damages for all expenses incurred in any such reletting and for any difference between the amount this definition of rent received from such reletting and the rent due and payable under the term “Event of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusiveDefault”, and in additionsuch breach or failure to perform is not remedied within ten (10) Business Days, Landlord may pursue any other remedies that may be permitted or if such breach is not curable by law or in equity. Forbearance by Landlord to enforce one or more the payment of the remedies herein provided upon an event a sum of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable lawmoney, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after notice thereof to Seller or Buyer from the receipt applicable party or its successors or assigns;
(xiii) an Act of Insolvency shall have occurred with respect to the Seller or Guarantor;
(xiv) an “event of default” beyond any applicable notice and cure period shall have occurred under (A) the Securities Repurchase Agreement, (B) any repurchase facility or loan facility entered into by Landlord Seller and Buyer or any affiliate thereof or (C) any facility with Buyer or any affiliate thereof in which Seller is a guarantor; or
(A) any of the representations, warranties and covenants of Guarantor in the Guaranty or any Financial Covenant Compliance Certificate shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated and such misrepresentation or breach of warranty or covenant has not been cured within ten (10) Business Days of after receiving written notice from Tenant of such incorrect or untrue representation or such breach of covenant or (B) Guarantor shall have defaulted or failed to perform under the Guaranty.
(b) If an Event of Default shall occur and be continuing with respect to Seller, the following rights and remedies shall be available to Buyer:
(i) At the option of Buyer, exercised by written notice to Seller (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall, if it has not already occurred, be deemed immediately to occur (the date on which such option is exercised or deemed to have been exercised being referred to hereinafter as the “Accelerated Repurchase Date”) (and any Transaction for which the related Purchase Date has not yet occurred shall be canceled).
(ii) If Buyer exercises or is deemed to have exercised the option referred to in Section 14(b)(i):
(A) Seller’s obligations hereunder to repurchase all Purchased Loans shall become immediately due and payable on and as of the alleged failure Accelerated Repurchase Date and all Income deposited in the Blocked Account shall be retained by Buyer and applied to perform the aggregate unpaid Repurchase Price and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 any other amounts owing by Seller hereunder; and
(Tenant) (LandlordB) to pursue the cure extent permitted by applicable law, the Repurchase Price with respect to each Transaction (determined as of the Accelerated Repurchase Date) shall be increased by the aggregate amount obtained by daily application of, on a 360 day per year basis for the actual number of days during the period from and including the Accelerated Repurchase Date to but excluding the date of payment of the Repurchase Price (as so increased), (x) the Pricing Rate applicable upon an Event of Default for such Transaction multiplied by (y) the Repurchase Price for such Transaction (decreased by (I) any amounts actually remitted to Buyer by Seller from time to time pursuant to Section 5 and applied to such Repurchase Price to the extent such amounts are not already included in the computation of the Repurchase Price and (II) any amounts applied to the Repurchase Price pursuant Section 14(b)(iii) of this Annex I); and
(C) the Custodian shall, upon the request of Buyer (with simultaneous copy of such request to Seller), deliver to Buyer all instruments, certificates and other documents then held by the Custodian relating to the Purchased Loans.
(iii) Buyer may, after ten (10) days notice to Seller of Buyer’s intent to take such action (provided that no such notice shall be required in the circumstances set forth in Section 9-611(d) of the UCC), (A) immediately sell, at a public or private sale in a commercially reasonable manner and at such price or prices as Buyer may reasonably deem satisfactory any or all of the Purchased Loans or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Loans, to give Seller credit for such Purchased Loans in an amount equal to the Market Value of such Purchased Loans against the aggregate unpaid Repurchase Price for such Purchased Loans and any other amounts owing by Seller under the Transaction Documents. The proceeds of any disposition of Purchased Loans effected pursuant to this Section 14(b)(iii) shall be applied, (v) first, to the costs and expenses incurred by Buyer in connection with Seller’s default; (w) second, to costs of cover and/or Hedging Transactions, if any; (x) third, to the Repurchase Price; (y) fourth, to any other outstanding obligation of Seller to Buyer or its Affiliates pursuant to the Transaction Documents, and (z) the balance, if any, to Seller.
(iv) The parties recognize that it may not be possible to purchase or sell all of the Purchased Loans on a particular Business Day, or in a transaction with the same purchaser, or in the same manner because the market for such Purchased Loans may not be liquid. In view of the nature of the Purchased Loans, the parties agree that, to the extent permitted by applicable law, liquidation of a Transaction or the Purchased Loans shall not require a public purchase or sale and that a good faith private purchase or sale shall be deemed to have been made in a commercially reasonable manner. Accordingly, Buyer may elect, in its sole discretion, the time and manner of liquidating any Purchased Loans, and nothing contained herein shall (A) obligate Buyer to liquidate any Purchased Loans on the occurrence and during the continuance of an Event of Default or to liquidate all of the Purchased Loans in the same manner or on the same Business Day or (B) constitute a waiver of any right or remedy of Buyer.
(v) Seller shall be liable to Buyer for the amount of all reasonable expenses, including reasonable legal fees and expenses, actually incurred by Buyer in connection with or as a consequence of an Event of Default with respect to Seller, (B) all costs incurred in connection with covering transactions or Hedging Transactions (including short sales) or entering into replacement transactions (C) all damages, losses, judgment costs and expenses of any kind which may be imposed on, incurred by or asserted against Buyer relating to or arising out of such Hedging Transactions or covering transactions and (D) any other loss, damage, cost or expense directly arising or resulting from the occurrence of an Event of Default with respect to Seller.
(vi) Buyer may exercise any or all of the remedies available to Buyer immediately upon the occurrence of an Event of Default and at any time during the continuance thereof. Except All rights and remedies arising under the Transaction Documents, as amended from time to time, are cumulative and not exclusive of any other rights or remedies which Buyer may have.
(vii) Buyer may enforce its rights and remedies hereunder without prior judicial process or hearing, and Seller hereby expressly waives any defenses Seller might otherwise specifically provided in this Leasehave to require Buyer to enforce its rights by judicial process. Seller also waives any defense Seller might otherwise have arising from the use of nonjudicial process, in no event disposition of any or all of the Purchased Loans, or from any other election of remedies. Seller recognizes that nonjudicial remedies are consistent with the usages of the trade, are responsive to commercial necessity and are the result of a bargain at arm’s length.
(viii) Without limiting any other rights or remedies of Buyer, Buyer shall Tenant have the right to terminate set off and apply any and all deposits (general or rescind this Lease special, time or demand, provisional or final) at any time held by or for account of Buyer or Buyer’s Affiliates on behalf of Seller to any obligations of Seller hereunder to Buyer, irrespective of whether Buyer shall have made any demand under the Agreement or the other Transaction Documents.
(ix) Buyer shall have, in addition to its rights and remedies under the Transaction Documents, all of the rights and remedies provided by applicable federal, state, foreign, and local laws (including, without limitation, if the Transactions are recharacterized as secured financings, the rights and remedies of a secured party under the UCC of the State of New York, to the extent that the UCC is applicable, and the right to offset any mutual debt and claim), in equity, and under any other agreement between Buyer and Seller, exercisable upon ten (10) days notice from Buyer to Seller. Without limiting the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result generality of the breach foregoing, Buyer shall be entitled to set off the proceeds of any promise or inducement hereofthe liquidation of the Purchased Loans against all of Seller’s obligations to Buyer, whether in this Lease or elsewhere. Tenant hereby waives not such obligations are then due, without prejudice to Buyer’s right to recover any deficiency.
(c) If an Event of Default occurs and is continuing with respect to Buyer, the following rights and remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited available to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise Seller:
(i) Upon tender by Seller of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any payment of the foregoing aggregate Repurchase Price for all Purchased Loans, together with all other amounts due hereunder to Buyer, Buyer’s right, title and interest in such Purchased Loans shall be deemed transferred to Seller, and Buyer shall simultaneously deliver such Purchased Loans to Seller.
(ii) Seller shall have all the rights and remedies (provided herein or provided by applicable federal, state, foreign, local and any other remedy) applicable laws, in a proceeding instituted by either party equity, and under any other agreement between Buyer and Seller (including the right to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordoffset any debt or claim).
e(iii) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASEIf Seller exercises the option referred to in Section 14(c)(i) hereof and Buyer fails to deliver any Purchased Loans to Seller, after three (3) Business Days’ notice to Buyer, Seller may purchase loans that are in as similar an amount and interest rate as is reasonably practicable and in the same Loan Type as such Purchased Loans.
Appears in 1 contract
Samples: Master Repurchase Agreement (Gramercy Capital Corp)
Events of Default Remedies. (a) The following events shall be deemed to be events of default by If Tenant under this Lease:
does not: (ia) Tenant shall fail to pay any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten within fifteen (1015) days after the due date such Rent or other sums is due (with no notice being required thereof pay any installment of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease basic annual rent, additional rent or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty monetary obligation; or (30b) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days after written notice from Landlord cure a default other than a default in the payment of basic annual rent or additional rent (provided, however, that such thirty (30) day period shall be extended if the default is of such a nature that it could not reasonably be cured within such period of thirty (30) days and Tenant promptly commences and thereafter diligently pursues the curing of such default), then, in any such event, Tenant shall be deemed in default under this Lease.
(b) If there should occur any default on the part of the Tenant as set forth in this Lease, or if during the term hereof the Demised Premises or any part thereof shall be or become abandoned or deserted, vacated or vacant, or should the Tenant is diligently attempting be evicted by summary proceedings or otherwise, the Landlord, in addition to cure such Default, Landlord shall grant such additional reasonable time any other remedies herein contained or as may be necessary permitted by law, may, without being liable for prosecution therefor, or for damages, re-enter the Demised Premises and the same have and again possess and enjoy, so long as such re-entry is in accordance with all applicable laws, orders, rules, regulations and the like of all governmental authorities having jurisdiction over the Demised Premises.
(c) At any time or from time to cure time after any such Nonexpiration or termination, the Landlord may, as agent for the Tenant or otherwise, re-Monetary Defaultlet the Demised Premises, but for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the term of this Lease) and on such conditions (which may include concessions or free rent) as the Landlord, in its reasonable discretion, may determine, and receive the rents therefor, applying the same: (i) to the payment of such expenses, reasonable attorney fees and costs, as the Landlord may have been put to in -e- entering and repossessions the same and in making such repairs and alterations as may be necessary; and (ii) to the payment of the rents due hereunder. The Tenant shall remain liable for such rents as may be in arrears and also the rents as may accrue subsequent to the re-entry by the Landlord, to the extent of the difference between the rents reserved hereunder and the rents, if any, received by the Landlord during the remainder of the unexpired term hereof, after deducting the aforementioned expenses, fees and costs; the same to be paid as such deficiencies arise and are ascertained each month. Landlord shall in no event shall Landlord grant more than ninety (90) days way be responsible or liable for any failure to cure a Non-Monetary default;relet the Demised Premises or any part thereof, or for any failure to collect any rent due upon any such reletting.
(iiid) The leasehold hereunder demised shall Upon the occurrence of an event of default as set forth in this Lease, or should the Tenant be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move intoadjudicated a bankrupt, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition placed in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting toreceivership, or requesting should proceedings be instituted by or against the relief afforded by the bankruptcy laws;
(vi) Tenant makes an for bankruptcy, insolvency, receivership, agreement of composition or assignment for the benefit of creditors, within or if this Lease or the meaning estate of the bankruptcy laws Tenant hereunder shall pass to another by virtue of any court proceedings, writ of execution, levy, sale, or Tenant consents to the appointment by operation of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy lawslaw, the adjudication of Tenant as a bankruptLandlord may, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the rightso elects, at its electionany time thereafter, to cancel and terminate this Lease and dispossess the term hereof, upon giving to the Tenant by summary proceedings or to any trustee, receiver, assignee or other lawful means;
person in charge of or acting as custodian of the assets or property of the Tenant, five (ii5) days written notice of the Landlord's intention so to do. Upon the giving of such notice, this Lease and the term hereof shall end on the date fixed in such notice as if the said date was the date originally fixed in this Lease for the expiration hereof; and the Landlord shall have the right to declare remove all amounts persons, goods, fixtures and rents due under this Lease chattels therefrom, by force or otherwise, without liability for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rentdamages.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Lease Agreement (Ryan Beck & Co Inc)
Events of Default Remedies. a) The Each of the following events shall be deemed to be events of default by Tenant under this Leaseconstitute an "EVENT OF DEFAULT" hereunder:
(ia) Tenant if any interest, principal or any other payment or charge due under this Deed of Trust (including payments due under PARAGRAPH 5 hereof), the Note, or any other Loan Documents is not paid when due;
(b) if any Taxes payable directly to the billing authority by Trustor are not paid before interest becomes payable on the amount due or a penalty is assessed or Trustor shall fail to pay any Rent or and discharge any other sums lien on the Trust Property in accordance with PARAGRAPH 4 (provided that the foregoing provisions of money due hereunder this clause (b) shall be subject to the right to contest granted to Trustor in PARAGRAPH 4(B) of this Deed of Trust, but only for so long as the conditions in PARAGRAPH 4(B) of this Deed of Trust remain satisfied);
(c) if the Policies are not kept in full force and such failure shall continue for a period of effect, or if the Policies are not delivered to Beneficiary within ten (10) business days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:request by Beneficiary;
(iid) Tenant shall fail to comply if any of the provisions of PARAGRAPHS 7, 9 or 19 ---------- - - -- herein are violated or not complied with;
(e) if any of the provisions of PARAGRAPHS 40 or 41 herein are violated or not complied with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default canshall not be have been cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord after notice from Beneficiary or any of the events described in PARAGRAPH 42 shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultoccur;
(iiif) The leasehold hereunder demised if at any time any representation or warranty of Trustor or any Guarantor made herein or in any guaranty, agreement, certificate, report, affidavit, owner's affidavit, financial statement or other instrument furnished to Beneficiary shall be taken on execution false or other process of law misleading in any action against Tenantmaterial respect;
(ivg) Tenant shall fail if any Guaranty (as hereinafter defined) is terminated or any event or condition occurs which, in the sole judgment of Beneficiary, may impair the ability of any Guarantor to promptly move intoperform its obligations under any Guaranty or any Guarantor attempts to withdraw, take possession of and operate its business on the Premises when the Premises are ready for occupancy cancel or shall cease to do business in or vacate or abandon disclaim any substantial portion of the Premises for more than ten (10) consecutive daysGuaranty;
(vh) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files if a petition in bankruptcy or for reorganization default by Trustor under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning any of the bankruptcy laws other terms, covenants or Tenant consents to conditions of the appointment Note, this Deed of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all Trust or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord Loan Document shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel occur and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder have been cured within thirty (30) days after the receipt by Landlord of written notice from Tenant Beneficiary, provided that if such default is not susceptible of being cured within such thirty (30) day period and Trustor shall have commenced the cure of such default within such thirty (30) day period and thereafter diligently pursues such cure to completion, then such thirty (30) day period shall be extended for a period of one hundred and twenty (120) days from the occurrence of the alleged failure to perform default, provided, further, that the notice and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided grace period set forth in this Leasesubparagraph (j) shall not apply to any other Event of Default expressly set forth in this PARAGRAPH 20 or to any other Event of Default defined as such in any other Loan Document or to any other covenant or condition with respect to which a grace period is expressly provided elsewhere;
(i) if any of the provisions of PARAGRAPHS 43(D) and/or PARAGRAPH 43(F) are violated or not complied with, and/or if any representation or warranty in no event PARAGRAPH 43(B) and/or 43(C) shall Tenant prove false or misleading in any material respect and/or if any of the events described in PARAGRAPH 43(E) shall occur; or
(j) if an Event of Default shall occur under any of the Contemporaneous Mortgages (as hereinafter defined). Upon the occurrence of any Event of Default, the Indebtedness shall immediately become due at the option of Beneficiary and Beneficiary shall have the right to terminate exercise any and all rights and remedies available under the Note, this Deed of Trust, the Indenture, the other Loan Documents or rescind this Lease otherwise at law and in equity. Upon the occurrence of any Event of Default, Beneficiary may, to the extent permitted under applicable law, elect to treat the fixtures included in the Trust Property either as real property or as personal property, or both, and proceed to offset the Rent amount due Landlord exercise such rights as a result of Landlord's default as apply thereto. With respect to any covenant or agreement contained sale of real property included in this Lease or as a result the Trust Property made under the powers of the breach of any promise or inducement hereofsale herein granted and conferred, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants thatBeneficiary may, prior to the exercise of extent permitted by applicable law, include in such sale any fixtures included in the Trust Property and relating to such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordreal property.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a) The A. Prior to substantial completion of the Project, the occurrence of one or more of the following events shall be deemed to be events will constitute an event of default by Tenant under this LeaseXxxxxxx:
(i) Tenant shall In the event that Xxxxxxx should fail to pay complete construction of the Project in accordance with the Plans and Specifications and in compliance with all Applicable Laws by the Completion Deadline Date, subject to Xxxxxxxxxx’x and CMCC’s performance of their obligations under the Ground Lease and this Sublease;
(ii) If Xxxxxxx shall default in the performance of or compliance with any Rent of the covenants, agreements, terms or conditions contained in this Sublease or which apply to Xxxxxxx pursuant to the terms of the Ground Lease (including, but not limited to any other sums failure of money due hereunder Xxxxxxx not to act in accordance with the Community Benefits Standard, as defined in Article IV of the Ground Lease) and such failure default shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior after written notice thereof from CMCC, or, in the case of a default, although curable, which cannot with due diligence be cured within such Non-Monetary Default period of thirty (30) days, Xxxxxxx fails to proceed continuously and Tenant has failed to cure with all due diligence within such Non-Monetary Default within said period of thirty (30) days provided; however, if to commence to cure the same and thereafter to prosecute the curing of such default cannot be cured continuously and with all due diligence within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary after the original written notice of default;
(iii) The leasehold hereunder demised If Xxxxxxx shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files file a voluntary petition in bankruptcy or for reorganization shall be adjudicated a bankrupt or insolvent or shall file any petition or answer seeking any reorganization, arrangement, recapitalization, readjustment, liquidation, dissolution or similar relief under the bankruptcy laws any present or an admission, answer future Bankruptcy Code or other responsive pleading consenting tobankruptcy law or any other present or future applicable federal, state or other statute or law, or requesting shall seek or consent to the relief afforded by appointment of any trustee, receiver or liquidator of Xxxxxxx or of all or any substantial part of its properties or of the bankruptcy laws;
(vi) Tenant makes Demised Premises, or shall make an assignment for the benefit of creditors;
(iv) If within sixty (60) days after the commencement of any proceedings against Xxxxxxx seeking any reorganization, arrangement, recapitalization, readjustment, liquidation, dissolution or similar relief under the present or any future Bankruptcy Code or other bankruptcy law or any other present or future applicable Federal, state or other statute or law, such proceedings shall not have been dismissed, or if, within sixty (60) days after the meaning appointment, without the consent of the bankruptcy laws or Tenant consents to the appointment Xxxxxxx, of a any trustee, receiver or custodian for liquidator of Xxxxxxx, or of all or a any substantial part of its propertythe Demised Premises, such appointment shall not have been vacated or stayed on appeal or otherwise, or within sixty (60) days after the expiration of any such stay such appointment shall not have been vacated; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)or
(xxxv) Xxx filing Except as otherwise expressly permitted herein, any lien shall be filed of record against Tenant of a petition the Demised Premises, or Xxxxxxxxxx’x reversion or other interest in bankruptcy or for reorganization under the bankruptcy lawsDemised Premises, the adjudication Buildings or Improvements, or any portion of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian Hospital and such lien shall not be dismissed or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and bonded within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk following written notice thereof to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 aboveXxxxxxx.
b) Upon B. In the occurrence event of any event or events of Xxxxxxx’x default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and hereunder beyond any applicable extension or renewal thereof) grace period, CMCC will have whatever rights are available to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by CMCC at law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22including, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Leasewithout limitation, in no event shall Tenant have the right to terminate seek specific performance, injunctive or rescind this Lease other equitable relief or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result remedies. However, upon substantial completion of the breach of any promise or inducement hereofProject, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord neither CMCC nor Xxxxxxxxxx shall be limited entitled to a suit terminate this Sublease or divest Xxxxxxx’x rights or interests in the Demised Premises, the Building or Improvements for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordreason whatsoever.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Construction Sublease (Radiation Therapy Services Holdings, Inc.)
Events of Default Remedies. a) The A. Subject to the grace and cure periods set forth in subparagraph 23(P),infra, the following events or any one or more of them shall be deemed to be events of default by Tenant under this Lease:
(i) Tenant Lessee shall fail to pay any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Minimum Annual Rent, Additional Rent or other sums is payable hereunder when the same are due (with no notice being required of Landlord)and payable; hereinafter referred to as a "Monetary Default:;or
(ii) Tenant Lessee shall fail to perform or comply with any of the other Non-Monetary provision of this Lease terms, covenants, agreements or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days providedconditions hereof; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;or
(iii) The leasehold hereunder demised Lessee shall be taken on execution or other process make a general assignment for the benefit of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy creditors or shall cease to do business admit in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable writing its inability to pay its debts as they become due, Tenant files or shall file a petition in bankruptcy or for reorganization under the bankruptcy laws shall be adjudged a bankrupt or an admission, answer or other responsive pleading consenting toinsolvent, or requesting shall file a petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, or shall file an answer admitting or not, contesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit material allegations of creditorsa petition against it in any such proceeding, within the meaning of the bankruptcy laws or Tenant consents shall seek or consent to or acquiesce in the appointment of a any trustee, receiver or custodian for all liquidator of Lessee or a substantial any material part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)or
(xxxiv) Xxx filing If within sixty (60) days after commencement of any proceedings against Tenant Lessee seeking any reorganization, arrangement, composition, readjustment, liquidation or dissolution or similar relief under any present or future statute, law or regulation, such proceedings shall not have been dismissed or, if, within sixty (60) days after the appointment without the consent or acquiescence of a petition in bankruptcy Lessee of any trustee, receiver or for reorganization under the bankruptcy laws, the adjudication liquidator of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian Lessee or trustee for all or a substantial any material part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's propertyproperties, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which appointment shall not be unreasonably denied; orhave been vacated
(viiiv) The adjudication of Tenant as a bankruptor; or
(ix) Tenant Lessee shall attempt to assign, transfer, sublet all or any part of its interests in vacate the Premises or in this Lease without Landlord's prior written consent subject to the provisions violation of Section 19 aboveParagraph 28 hereof.
b) Upon B. In the occurrence event of any such event or events of default (regardless of the pendency of any proceeding which has or other breach might have the effect of preventing Lessee from complying with 'the terms of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue Lease) Lessor at any one time thereafter may exercise any one' or more of the following remedies:
(i) Landlord shall have Intentionally Deleted by the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.Parties
Appears in 1 contract
Samples: Lease Agreement (Dataram Corp)
Events of Default Remedies. The occurrence of any one of the following shall constitute a default (each an “Event of Default”) by Borrower under this Agreement: (a) The following events shall be deemed to be events of default by Tenant under this Lease:
(i) Tenant if Borrower shall fail to pay any Rent (i) principal amount of any Advance, when due and payable, or declared due and payable, or (ii) interest on any other sums of money due hereunder and such failure shall continue for a period of ten Advance within five (105) days after the date on which such Rent payment of interest shall become due and payable, or declared due and payable; (b) if Borrower shall fail to pledge additional Pledged Securities as required under Section 9(b) above; (c) if Borrower shall default in the performance or observance of any other sums of its obligations under this Agreement or any of the other Credit Documents, and such default shall remain uncured for a period of fifteen (15) days after notice from Lender; (d) if any representation, warranty, statement, report or certificate made or delivered by Borrower, or 5652985 - 4 - any of its officers, employees or agents, to Lender is due not true and correct in any material respect when made or deemed made; (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
e) If Borrower shall (i) become insolvent, (ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure paying its debts generally as such Defaultdebts become due, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes make an assignment for the benefit of creditors, creditors or cause or suffer any of their respective assets to come within the meaning possession of any receiver, trustee or custodian, (iv) have a petition filed by or against Borrower under the bankruptcy laws Bankruptcy Reform Act of 1978, as amended, or Tenant consents to the appointment of a receiver any similar law or custodian for all or a substantial part regulation, (v) have any of its property; assets attached, seized or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissedlevied upon, or such court order is not vacated (vi) otherwise become the subject of any insolvency or such assumption creditor enforcement proceedings, provided however, that any involuntary petition or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which other proceeding against Borrower shall not be unreasonably deniedan Event of Default unless an order for relief is entered or such proceeding remains undismissed for at least sixty (60) days; or
(viiif) The adjudication of Tenant as a bankruptor; or
if Borrower or Xxxxx Xxxxxxx Companies (ix“PJC”) Tenant shall attempt to assign, transfer, sublet all or any part of its interests default in the Premises payment, when due, whether by acceleration or otherwise, of any indebtedness of Borrower or PJC in this Lease without Landlord's prior written consent subject to excess of $1,000,000, and such default is declared and is not cured within the provisions of Section 19 above.
b) Upon time, if any, specified therefore in any agreement governing the occurrence of same, or any event or events condition shall occur which results in the acceleration of default the maturity of any such Indebtedness of Borrower or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any PJC; (g) if one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings judgments or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, decrees shall be accelerated; howeverentered against Borrower involving, Landlord shall credit Tenant for any re-renting income for individually, or in the Premisesaggregate, after deducting Landlord's costs necessary to obtain a liability of $1,000,000 or more and such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord judgments or decrees shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusivehave been satisfied, and in additionvacated, Landlord may pursue any other remedies that may be permitted by law discharged or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder stayed pending appeal within thirty (30) days after the receipt entry thereof; or (h) if this Agreement, the Note, or any other Credit Documents executed by Landlord Borrower at any time after their respective execution and delivery, shall cease to be in full force and effect, shall be declared null and void, shall be revoked or terminated or shall be subject to any contest by Borrower as to their validity and/or enforceability, for any reason, or if Borrower shall for any reason deny any further liability to Lender hereunder and thereunder. Upon the occurrence and during the continuance of written any Event of Default, Borrower may not request any Advance under this Agreement, Lender may then forthwith cease making Advances to or for the benefit of Borrower under this Agreement without any notice from Tenant to Borrower, and Lender may terminate this Agreement; provided that this Agreement shall automatically terminate, and all amounts Borrower owes Lender hereunder and under the Note shall become due, without any notice should an order for relief be entered with respect to Borrower under the United States Bankruptcy Code. Upon an Event of Default, with notice by Lender to or demand by Lender of Borrower, Lender may declare all Advances to be immediately due and payable. Lender, in its sole discretion, upon the occurrence of and during the continuance of an Event of Default may exercise one or more of the alleged failure rights and remedies accruing to perform and does not continue SpanishRiver.Manchester.September 22Lender under this Agreement or the other Credit Documents, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Leaseand/or applicable law upon default by Borrower, in no event shall Tenant have including, without limitation, the right to terminate or rescind this Lease or set off and/or reduce to offset cash and apply to the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach payment of any promise of Borrower's obligations, any monies, reserves, deposits, certificates of deposit, deposit accounts and interest and dividends thereon, securities, investment property, cash and other property in the possession of or inducement hereof, whether in this Lease under the control of Lender or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that partyLender's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordaffiliates.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. (a) The following events shall be deemed to be events of default by Tenant under this Lease:
(i) Tenant shall fail to pay within five days of the due date any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent Base Rental or other sums is due rent payable by Tenant to Landlord under this Lease (with no notice being required of Landlord); hereinafter sometimes referred to as a "Monetary Default:;MONETARY DEFAULT").
(ii) Any failure by Tenant (other than a Monetary Default) to comply with any term, provision or covenant of this Lease, which failure is not cured within twenty (20) days after delivery to Tenant of notice of the occurrence of such failure or if such failure is not reasonably susceptible of being cured within such twenty (20) day period, Tenant shall fail to comply with any other Non-Monetary provision of this Lease commence the curing thereof within such twenty (20) day period, or any other agreement between Landlord and Tenanthaving commenced the curing thereof, if applicable, after Landlord has provided thirty (30) days prior written notice Tenant shall fail to diligently pursue the curing of such Non-Monetary Default and Tenant has failed default with reasonable diligence to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;completion.
(iii) Tenant or any Guarantor shall become insolvent, or shall make a transfer in fraud of creditors, or shall commit an act of bankruptcy or shall make an assignment EXHIBIT 10.6 for the benefit of creditors, or Tenant or any Guarantor shall admit in writing its inability to pay its debts as they become due.
(iv) Tenant or any Guarantor shall file a petition under any section or chapter of the United States Bankruptcy Code, as amended, pertaining to bankruptcy, or under any similar law or statute of the United States or any State thereof, or Tenant or any Guarantor shall be adjudged bankrupt or insolvent in proceedings filed against Tenant or any Guarantor thereunder; or a petition or answer proposing the adjudication of Tenant or any Guarantor as a bankrupt or its reorganization under any present or future federal or state bankruptcy or similar law shall be filed in any court and such petition or answer shall not be discharged or denied within sixty (60) days after the filing thereof.
(v) A receiver or trustee shall be appointed for all or substantially all of the assets of Tenant or any Guarantor or of the Premises or of any of Tenant's property located thereon in any proceeding brought by Tenant or any Guarantor, or any such receiver or trustee shall be appointed in any proceeding brought against Tenant or any Guarantor and shall not be discharged within sixty (60) days after such appointment or Tenant or such Guarantor shall consent to or acquiesce in such appointment.
(vi) The leasehold estate hereunder demised shall be taken on execution or other process of law in any action against Tenant;.
(ivvii) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in abandon or vacate or abandon any substantial portion of the Premises without the prior written permission of Landlord for more a period longer than ten 365 consecutive days during the Lease Term. If Tenant or any other person acting on Tenant's behalf has removed, is removing or has made preparations to remove (10other than in the normal course of business) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become duegoods, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admissionequipment, answer fixtures or other responsive pleading consenting toproperty from the Premises in amounts substantial enough to indicate a probable intent to abandon or vacate the Premises without the prior written permission of Landlord, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning Tenant's abandonment of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian Premises shall be deemed conclusively established for all or a substantial part purposes. The provisions of its property; or SpanishRiverthe foregoing sentence shall supersede the provisions of the Texas Property Code.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication Tenant shall fail to take possession of Tenant and occupy the Premises within sixty (60) days following the Commencement Date and thereafter continuously conduct its operations in the Premises for the Permitted Use as a bankruptor; orset forth in Paragraph 4 hereof.
(ix) The liquidation, termination, dissolution, forfeiture of right to do business or death of Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 aboveGuarantor.
(b) Upon the occurrence of any event or events of default or other breach of under this Lease by TenantLease, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:remedies without any notice (except as expressly prescribed herein) or demand for possession whatsoever (and without limiting the generality of the foregoing, Tenant hereby specifically waives notice and demand for payment of rent or other obligations due and waives any and all other notices or demand requirements imposed by applicable law):
(i) Terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to surrender the Premises upon termination of EXHIBIT 10.6 the Lease hereunder, Landlord shall may without prejudice to any other remedy which it may have for possession or arrearages in rent, enter upon and take possession of the rightPremises and expel or remove Tenant and any other person who may be occupying said Premises, at its electionor any part thereof, by force, if necessary, without being liable for prosecution or any claim of damages therefor, and Tenant hereby agrees to pay to Landlord on demand the amount of all loss and damage which Landlord may suffer by reason of such termination, whether through inability to relet the Premises on satisfactory terms or otherwise, specifically including but not limited to all Costs of Reletting (hereinafter defined) and any deficiency that may arise by reason of any reletting. If such termination is caused by the failure to pay rent and/or the abandonment of any substantial portion of the Premises, Landlord may elect, by sending written notice thereof to Tenant, to cancel receive liquidated damages in an amount equal to the Base Rental and terminate this other rent payable hereunder for the month during which the Lease is terminated times the lesser of (A) twelve (12) or (B) the number of months remaining in the Lease Term as of the date of such failure to pay rent and/or abandonment of any substantial portion of the Premises. Such liquidated damages shall be in lieu of the payment of loss and dispossess damage Landlord may suffer by reason of such termination as provided in the preceding sentence but shall not be in lieu of or reduce in any way any amount (including accrued rent) or damages due to breach of covenant (whether or not liquidated) payable by Tenant by summary proceedings or other lawful means;to Landlord which is accrued and outstanding at the time of the termination of the Lease.
(ii) Enter upon and take possession of the Premises and expel or remove Tenant or any other person who may be occupying said Premises, or any part thereof, by force, if necessary, without having any civil or criminal liability therefor and without terminating this Lease. Landlord may (but shall be under no obligation to) relet the Premises or any part thereof for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant for such term or terms which may be greater or less than the period which would otherwise have constituted the balance of the Lease Term and on such conditions (which may include concessions or free rent) and for such uses as Landlord in its absolute discretion may determine, and Landlord may collect and receive any rents payable by reason of such reletting. Tenant agrees to pay Landlord on demand all Costs of Reletting and any deficiency that may arise by reason of such reletting. Landlord shall have not be responsible or liable for any failure to relet the right Premises or any part thereof or for any failure to declare all amounts and rents collect any rent due under upon any such reletting. No such re-entry or taking of possession of the Premises by Landlord shall be construed as an election on Landlord's part to terminate this Lease for the remainder unless a written notice of the existing term (and any applicable extension or renewal thereof) such termination is given to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rentTenant.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter Enter upon the Premises by force if necessary without having any civil or criminal liability therefor, and do whatever Tenant is obligated to do under the terms of this Lease (and Tenant agrees to reimburse Land- lord Landlord on demand for any expenses expense which Landlord may incur in effecting thus affecting compliance with Tenant's obligations under this Lease together with interest at the lesser of a per annum rate equal to (i) the Maximum Rate or (ii) the Prime Rate plus five percent (5%) and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies , whether caused by the negligence of Land- lord shall be cumulative Landlord or otherwise.
(iv) In order to regain possession of the Premises and not exclusive, and in additionto deny Tenant access thereto, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more its agent may, at the expense and liability of the remedies herein provided upon an event of default shall not be deemed Tenant, alter or construed to constitute a waiver of such default EXHIBIT 10.6 change any or remedy.
c) This Paragraph 28 shall be enforceable all locks or other security devices controlling access to the maximum extent permissible by applicable law, and the unenforceability Premises without posting or giving notice of any portion hereof shall not thereby render unenforceable any other portion.
d) kind to Tenant. Landlord shall not be have no obligation to provide Tenant a key or grant Tenant access to the Premises so long as Tenant is in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented shall not be entitled to recover possession of the Premises, terminate this Lease, or recover any actual, incidental, consequential, punitive, statutory or other damages or award of attorneys' fees, by reason of Landlord's alteration or change of any lock or other security device and the resulting exclusion from unilaterally withholding rent the Premises of the Tenant or Tenant's agents, servants, employees, customers, licensees, invitees or any other persons from the Premises. Landlord may, without filing its own cause notice, remove and either dispose of action versus or store, at Tenant's expense, any property belonging to Tenant that remains in the Premises after Landlord has regained possession thereof. Any such property of Tenant not retaken by Tenant from Landlord's storage within 30 days after removal from the Premises shall, at Landlord's option. be deemed conveyed by Tenant to Landlord under this Lease as by a xxxx of sale without further payment or credit by Landlord to Tenant. Tenant acknowledges that the provisions of this subparagraph of this Lease supersedes die Texas Property Code and Tenant farther warrants and represents that it hereby knowingly waives any rights it may have thereunder.
e(v) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT Terminate this Lease by giving Tenant written notice thereof, in which event, Tenant shall pay to Landlord the sum of (i) all rent accrued hereunder through the date of termination, (ii) all Costs of Reletting, and (iii) an amount equal to (A) the total rent that Tenant would have been required to pay for the remainder of the Lease Term discounted to present value minus; (B) the then present fair rental value of the Premises for such period, similarly discounted.
(c) For purposes of this Lease, the term "COSTS OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASERELETTING" shall mean all costs and expenses incurred by Landlord in connection with the reletting of the Promises, including without limitation the cost of cleaning, renovation, repairs, decoration and alteration of the Premises for a new tenant or tenants, advertisement, marketing, brokerage and legal fees, the cost of protecting or caring for the Premises while vacant, the cost of removing and storing any property located on the Premises, any increase in insurance premiums caused by the vacancy of the Premises, costs of carrying the Premises such as taxes, insurance premiums, utilities and security precautions, any unearned brokerage commissions paid in connection with this Lease, parking fees or occupancy taxes due under the Lease, reimbursement of any previously waived Base Rental, Basic Costs, free rent, or reduced rental rate, and any concession made or paid by Landlord to the benefit of Tenant in consideration of this Lease including, but not limited to, any moving allowances, contributions or payments by Landlord for tenant improvements or build-out allowances, or assumptions by Landlord of any of Tenant's previous lease obligations and any other out-of-pocket expenses incurred by Landlord including tenant inducements such as the cost of moving the new tenant or tenants and the cost of assuming any portion of the existing lease(s) of the new tenant(s).
Appears in 1 contract
Events of Default Remedies. a) The Each of the following events shall be deemed to be events an Event of default by Tenant under this LeaseDefault hereunder:
(ia) Tenant shall fail Failure of any Guarantor to pay any Rent Guaranteed Obligations upon receipt of demand by the Trustee to such Guarantor given in accordance with Section 20 hereof.
(b) The dissolution or liquidation of a Guarantor or the filing by a Guarantor of a voluntary petition in bankruptcy, or the entry of any order or decree granting relief in any involuntary case commenced against a Guarantor under any present or future federal bankruptcy act or any other sums of money due hereunder similar federal or state law, or a petition for such an order or decree shall be filed in any court and such failure petition shall continue for a period of ten (10) not be discharged or denied within ninety days after the date such Rent filing thereof, or other sums is due (with no notice being required of Landlord); hereinafter referred to as if a "Monetary Default:;
(ii) Tenant Guarantor shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but admit in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate writing its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable inability to pay its debts generally as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian trustee or trustee for all liquidator of a Guarantor shall be appointed in any proceeding brought against the Guarantor and shall not be discharged within ninety days after such appointment or if a substantial part of its property without its Guarantor shall consent to such appointment, or assignment by the assuming of custody or sequestration by a court of competent jurisdiction Guarantor of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissedits assets for the benefit of its creditors, or such court order is not vacated the entry by the Guarantor into an agreement of composition with its creditors with respect to all or such assumption or sequestration is not releasedsubstantially all of its assets, or a bankruptcy, insolvency or similar proceeding shall be otherwise initiated by or against a Guarantor under any applicable bankruptcy, reorganization or analogous law as now or hereafter in effect and if initiated against the Tenant does not bond off Guarantor shall remain undismissed (subject to no further appeal) for a period of ninety days; provided, the risk to Landlord to Landlord's reasonable satisfactionterm “dissolution or liquidation of a Guarantor,” as used in this subsection, which shall not be unreasonably deniedconstrued to include the cessation of the existence of a Guarantor resulting either from a merger or consolidation of the Guarantor into or with another entity or a dissolution or liquidation of the Guarantor following a transfer of all or substantially all of its assets as an entirety; orand provided further that an Event of Default shall not be triggered under this Subsection (b) if the Company and the unaffected Guarantor or Guarantors shall continue to own more than 50% of the consolidated assets of the Company and the Subsidiaries.
(viiic) The adjudication If any representation made by a Guarantor contained in this Guaranty was false or misleading in any material respect at the time it was made or delivered. Whenever an Event of Tenant as a bankruptor; or
Default shall have happened and be continuing, (ixa) Tenant shall attempt to assign, transfer, sublet all or any part of its interests the Trustee in the Premises or manner provided in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more 7.1 of the following remedies:
(i) Landlord shall have Indenture may declare the rightentire unpaid principal of, at its electionor redemption premium, to cancel if any, and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have interest on the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) Series 2005R-2 Bonds to be immediately due and payable, and thereupon all rents and other charges due hereunder to (b) the end Trustee may, in its discretion, or shall upon the written request of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source Holders of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable 66 2/3% in damages for all expenses incurred in any such reletting and for any difference between the principal amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do Series 2005R-2 Bonds then Outstanding, take whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by action at law or in equity. Forbearance by Landlord equity as may appear necessary or desirable to collect payments then due or thereafter to become due hereunder or to enforce one observance or more performance of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of Guarantors under this Guaranty. In case the Trustee shall have proceeded to enforce this Guaranty and such proceedings shall have been discontinued or abandoned for any promise or inducement hereofreason, whether then and in this Lease or elsewhere. Tenant hereby waives every such remedies of termination case each Guarantor and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of the Trustee, subject to any promise or inducement by Landlord determination in any applicable proceeding, shall be limited restored respectively to a suit for damages and/or injunction. Tenant hereby covenants thattheir several positions and rights hereunder, prior to the exercise of any such remediesand all rights, it will give the mortgagees on the Property written notice remedies and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any powers of the foregoing remedies (or any other remedy) in a Guarantors and the Trustee shall continue as though no such proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordhad been taken.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. (a) The occurrence of any one or more of the following events shall be deemed to be events of default by Tenant under this Leaseconstitute an "EVENT OF DEFAULT" hereunder:
(i) Tenant shall fail Borrower's failure to pay any Rent or amount payable under the Note in accordance with the terms thereof; provided, however, that Borrower shall have three (3) business days in which to cure any other sums of money failure to pay interest due hereunder and such failure shall continue for a period of ten (10) days after under the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:Note;
(ii) Tenant shall fail Borrower's breach of any representation and warranty made to comply with Lender in any other Non-Monetary provision of this Lease the Transaction Documents or Borrower's breach of any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty covenant under any of the Transaction Documents which is not cured within ten (3010) business days prior written notice of the earlier of Borrower learning of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days breach or of notice thereof from Lender; provided; , however, that if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to the cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, will take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive daysbusiness days and Borrower is diligently pursuing such cure during such ten (10) business day period, then an Event of Default shall not occur with respect to such breach if it is cured within twenty (20) business days of the earlier of an officer of Borrower learning of such breach or receipt by Borrower of notice thereof from Lender;
(viii) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or Borrower (A) has an order for reorganization relief entered against it under the bankruptcy laws or an admissionfederal Bankruptcy Code, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(viB) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws (C) applies for or Tenant consents to seeks the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian liquidator, assignee, trustee or trustee other similar official for all it or a of any substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenantany such official is appointed, other than upon Borrower's propertyrequest, and within such unrequested appointment continues for sixty (60) days, (D) institutes proceedings seeking an order for relief under the federal Bankruptcy Code or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or any of its debts under other applicable federal or state law relating to creditor rights and remedies, or any such proceeding is filed against it, other than upon Borrower's request, and such unrequested proceeding continues undismissed or unstayed for thirty (30) days thereafter such filing is not dismisseddays, or (E) takes corporate action in furtherance of any of the foregoing actions;
(iv) the occurrence and continuance of any default under any lease or Indebtedness having an outstanding principal amount in excess of $10,000 that gives the lessor or the creditor of such court order is not vacated Indebtedness, as applicable, the right to accelerate the lease payments or such assumption or sequestration is not releasedthe Indebtedness, as applicable, or if the Tenant does not bond off right to exercise any rights or remedies with respect to any of the risk to Landlord to Landlord's reasonable satisfaction, Collateral;
(v) the entry of any judgment or order against Borrower which shall not be unreasonably deniedremains unsatisfied or undischarged and in effect for forty-five (45) days after such entry without a stay of enforcement or execution;
(vi) the occurrence of a Change of Control; or
(viiivii) The adjudication any material portion of Tenant as Borrower's assets is attached, seized, subjected to a bankruptor; orwrit or distress warrant, or is levied upon, or comes into the possession of any trustee, receiver or person acting in a similar capacity and such attachment, seizure, writ or distress warrant or levy has not been removed, discharged or rescinded within ten (10) business days, or Borrower is enjoined, restrained, or in any way prevented by court order from continuing to conduct all or any material part of its business affairs.
(ixb) Tenant Upon the occurrence and during the continuance of any Event of Default, Lender, may at any time, do any of the following:
(i) accelerate the payment of the amounts owing under the Note;
(ii) enforce the Note by exercise of the rights and remedies under this Agreement or granted to Lender by applicable law; and
(iii) exercise, in addition to all other rights and remedies granted in this Agreement, all rights and remedies of a secured party under the UCC and other applicable laws.
(c) Without limiting the generality of the foregoing provisions in Section 5(b), Lender shall attempt have the right to assign, transfer, sublet sell or otherwise dispose of all or any part of its interests the Collateral, either at public or private sale, in the Premises lots or in this Lease bulk, for cash or for credit, with or without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event warranties or events of default or other breach of this Lease by Tenantrepresentations, whether enumerated and upon such terms and conditions, all as Lender, in this Paragraph or notits sole discretion, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the rightmay deem advisable, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord it shall have the right to declare purchase at any such sale. Borrower agrees that a notice sent at least ten (10) days before the time of any intended public sale or of the time after which any private sale or other disposition of the Collateral is to be made shall be reasonable notice of such sale or other disposition. The proceeds of any such sale or other Collateral disposition shall be applied, first to the expenses of retaking, holding, storing, processing and preparing for sale, selling, and the like, and to Lender's reasonable and documented attorneys' fees and legal expenses, and then to the Obligations and to the payment of any other amounts required by applicable law, after which Lender shall account to Borrower for any surplus proceeds. If, upon the sale or other disposition of the Collateral, the proceeds thereof are insufficient to pay all amounts and rents due under this Lease to which Lender is legally entitled, Borrower shall be liable for the remainder deficiency, together with interest thereon at the default rate specified in the Note, and the reasonable and documented fees of any attorneys Lender employs to collect such deficiency; provided, however, that the foregoing shall not be deemed to require Lender to resort to or initiate proceedings against the Collateral prior to the collection of any such deficiency from Borrower. To the extent permitted by applicable law, Borrower waives all claims, damages and demands against Lender arising out of the existing term (and any applicable extension retention or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end sale or lease of the initial term Collateral or other exercise of Lender's rights and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rentremedies with respect thereto.
(d) To the extent permitted by law, Borrower covenants that it will not at any time insist upon or plead, or in any manner whatever claim or take any benefit or advantage of, any stay or extension law now or at any time hereafter in force, nor claim, take or insist upon any benefit or advantage of or from any law now or hereafter in force providing for the valuation or appraisal of the Collateral or any part thereof, prior to any sale or sales thereof to be made pursuant to any provision herein contained, or the decree, judgment or order of any court of competent jurisdiction; or, after such sale or sales, claim or exercise any right under any statute now or hereafter made or enacted by any state or otherwise to redeem the property so sold or any part thereof, and, to the full extent legally permitted, hereby expressly waives all benefit and advantage of any such law or laws, and covenants that it will not invoke or utilize any such law or laws or otherwise hinder, delay or impede the execution of any power herein granted and delegated to Lender, but will suffer and permit the execution of every such power as though no such power, law or laws had been made or enacted.
(e) Any sale, whether under any power of sale hereby given or by virtue of judicial proceedings, shall operate to divest all Borrower's right, title, interest, claim and demand whatsoever, either at law or in equity, in and to the Collateral sold, and shall be a perpetual bar, both at law and in equity, against Borrower, its successors and assigns, and against all persons and entities claiming the Collateral sold or any part thereof under, by or through Borrower, its successors or assigns.
(f) Borrower appoints Lender, and any officer, employee or agent of Lender, with full power of substitution, as Borrower's true and lawful attorney-in-fact, effective as of the date hereof, with power, in its own name or in the name of Borrower, (i) to endorse any note, checks, drafts, money orders, or other instruments of payment in respect of the Collateral that may come into Lender's possession, to sign and endorse any drafts against debtors, assignments, verifications and notices in connection with accounts, and other documents relating to Collateral; (ii) to demand, collect, issue receipt for, compromise, settle and xxx for monies due in respect of the Collateral; (iii) Landlord may elect to enter and repossess notify parties obligated with respect to the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this LeaseCollateral to make payments directly to Lender; and
(iv) Landlord may enter to pay or discharge taxes or Liens at any time levied or placed on or threatened against the Collateral; (v) to execute UCC financing statements and other documents, instruments and agreements required hereunder and, (vi) generally, to do, at Lender's option and at Borrower's expense, at any time, or from time to time, all acts and things which Lender deems necessary to protect, preserve and realize upon the Premises Collateral and do whatever Tenant is obligated Lender's security interest therein to do under effect the intent of this Lease (Agreement, all as fully and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees effectually as Borrower might or could do; provided, however, that Landlord Lender shall not be liable for exercise any damages resulting such powers granted pursuant to subsections (i) through (iii) prior to the Tenant from occurrence of an Event of Default and shall only exercise such action)powers during the continuance of an Event of Default; provided, further, that Lender provides Borrower with prompt notice of such actions having been taken and Borrower hereby ratifies all that said attorney shall lawfully do or cause to be done by virtue hereof. This power of attorney shall be irrevocable as long as any of the Obligations are outstanding.
(g) All such of Lender's rights and remedies of Land- lord with respect to the Collateral, whether established hereby or by any other agreements, instruments or documents or by law shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law exercised singly or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedyconcurrently.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a) The If any of the following events shall occur and be deemed to be events of default by Tenant under this Leasecontinuing:
(ia) Tenant the Borrower shall fail to pay any Rent principal of any Loan or Reimbursement Obligation when due in accordance with the terms hereof; or the Borrower shall fail to pay any interest on any Loan, Reimbursement Obligation, any fees hereunder or any other sums amount payable hereunder or under any other Loan Document within five (5) Business Days after any such interest, fees or other amounts becomes due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document when made which shall be false or misleading in any material respect when made; or
(c) any Loan Party shall default in the observance or performance of money due hereunder any covenant contained in Sections 6.3, 6.5, 6.6, 7.1, 7.3, 7.4 or 7.6 through 7.12; or
(d) any Loan Party shall default in the observance or performance of any other covenant contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 8), and such failure default shall continue unremedied for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice days; or
(e) any Loan Party shall (i) default in making any payment of such any principal of any Indebtedness (including any Contingent Obligation, but excluding the Loans and Non-Monetary Default and Tenant has failed to cure Recourse Indebtedness) beyond any applicable period of grace, or (ii) default in making any payment of any interest on any such Non-Monetary Default within said thirty Indebtedness or Contingent Obligation set forth in clause (30i) days provided; howeverbeyond the period of grace, if any, provided in the instrument or agreement under which such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Defaultobligation was created, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
or (iii) The leasehold hereunder demised default in the observance or performance of any other agreement or condition relating to any such Indebtedness or Contingent Obligation set forth in clause (i) or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness or Contingent Obligation (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such Indebtedness or Contingent Obligation to become due prior to its stated maturity or (in the case of any Contingent Obligation) to become payable; provided, that a default, event or condition described in clause (i), (ii) or (iii) of this paragraph (e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be continuing with respect to Indebtedness or Contingent Obligations the aggregate outstanding principal amount of which is $10,000,000 or more; provided further, that no default or event of default under any Non-Recourse Indebtedness shall be taken on execution a Default or Event of Default under this Agreement; or
(i) the Borrower or any other Loan Party shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets; or (ii) there shall be commenced against the Borrower or any other Loan Party any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed or undischarged for a period of 90 days; or (iii) there shall be commenced against the Borrower or any other Loan Party any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of law its assets that results in the entry of an order for any action against Tenant;
such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) Tenant the Borrower or any other Loan Party shall fail to promptly move intotake any action in furtherance of, take possession of and operate or indicating its business on the Premises when the Premises are ready for occupancy consent to, approval of, or shall cease to do business in or vacate or abandon acquiescence in, any substantial portion of the Premises for more than ten acts set forth in clause (10i), (ii), or (iii) consecutive days;
above; or (v) Tenant the Borrower or any other Loan Party shall become insolvent generally not, or shall be unable to to, or shall admit in writing its inability to, pay its debts as they become due, Tenant files a petition in bankruptcy ; or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an or the Borrower or any other Loan Party shall make a general assignment for the benefit of its creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viiii) The adjudication an ERISA Event or Foreign Plan Event shall have occurred, (ii) a trustee shall be appointed by a United States district court to administer any Pension Plan, (iii) the PBGC shall institute proceedings to terminate any Pension Plan(s), (iv) any Loan Party or any of Tenant as their respective ERISA Affiliates shall have been notified by the sponsor of a bankruptorMultiemployer Plan that it has incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and such entity does not have reasonable grounds for contesting such Withdrawal Liability or is not contesting such Withdrawal Liability in a timely and appropriate manner; or (v) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (v) above, such event or condition, together with all other such events or conditions, if any, which could reasonably be expected to result in a Material Adverse Effect; or
(ixh) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more final non-appealable judgments or decrees shall be entered against any Loan Party involving in the aggregate a liability of more than $10,000,000, and all such judgments or decrees shall not have been paid, vacated, discharged, stayed or bonded pending appeal within 30 days from the following remedies:entry thereof; or
(i) Landlord any Loan Party shall be found responsible for (A) the release or threatened release by any Loan Party, any of its Subsidiaries or any other Person of any Hazardous Substance into the indoor or outdoor environment, or (B) any violation of any Environmental Law or any federal, state or local health or safety law or regulation, which, in either case of clause (A) or (B), could reasonably be expected to have a Material Adverse Effect; or
(j) any of the rightLoans Documents (including the Guarantee Agreement) shall cease, at its electionfor any reason, to cancel be in full force and terminate this Lease effect or any Loan Party or any Affiliate of any Loan Party shall so assert (excluding release of any Guarantor from its guarantee in accordance with the Loan Documents); or
(k) there shall occur any Change of Control; then, and dispossess Tenant by summary proceedings in any such event, (A) if such event is an Event of Default specified in clause (i) or other lawful means;
(ii) Landlord of paragraph (f) above with respect to the Borrower, automatically the Commitments shall immediately terminate and the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents (including all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereofdocuments required thereunder) to be shall immediately become due and payable, and thereupon all rents and (B) if such event is any other charges due hereunder Event of Default, either or both of the following actions may be taken: (i) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the end Borrower declare the Commitments to be terminated forthwith, whereupon the Commitments shall immediately terminate; and (ii) with the consent of the initial term Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Loans (with accrued interest thereon) and any renewal termall other amounts owing under this Agreement and the other Loan Documents (including all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) to be due and payable forthwith, whereupon the same shall immediately become due and payable. With respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to this paragraph, the Borrower shall at such time deposit in a cash collateral account opened by the Administrative Agent an amount equal to 103% of the aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts held in such cash collateral account shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if applicableany, shall be accelerated; howeverapplied to repay other obligations of the Borrower hereunder and under the other Loan Documents. After all such Letters of Credit shall have expired or been fully drawn upon, Landlord all Reimbursement Obligations shall credit Tenant for have been satisfied and all other obligations of the Borrower hereunder and under the other Loan Documents shall have been paid in full, the balance, if any, in such cash collateral account shall be returned to the Borrower (or such other Person as may be lawfully entitled thereto). Except as expressly provided above in this Section, presentment, demand, protest and all other notices of any re-renting income for kind are hereby expressly waived by the PremisesBorrower. On and after the occurrence of an Event of Default, after deducting Landlord's costs necessary the Administrative Agent shall apply all payments in respect of any Obligations in the following order: (i) first, to obtain such alternate source pay Obligations in respect of rent.
any fees, expenses, reimbursements or indemnities then due to the Administrative Agent, (ii) second, to pay Obligations in respect of any fees (other than commitment fees and Letter of Credit fees), expenses, reimbursements or indemnities then due to the Lenders and Issuing Lenders, (iii) Landlord may elect third, to enter pay commitment fees, Letter of Credit fees and repossess the Premises interest due in respect of Loans and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount Letters of rent received from such reletting and the rent due and payable under the term of this LeaseCredit; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting fourth to the Tenant from such action)ratable payment or prepayment of principal outstanding on Loans and Letters of Credit; and (v) fifth, to the ratable payment of all other Obligations. All such remedies On or after the occurrence of Land- lord an Event of Default, all principal payments in respect of Loans shall be cumulative applied, first, to repay outstanding Swingline Loans, next outstanding ABR Loans and not exclusivethen to repay outstanding Eurodollar Loans, with those that have the earlier expiring Interest Period being repaid prior to those that have later expiring Interest Periods. The order of priority set forth in this paragraph and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord the related provisions of this Agreement are set forth solely to enforce one or more determine the rights and priorities of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to Administrative Agent, the maximum extent permissible by applicable lawLenders, and the unenforceability Issuing Lenders as among themselves. The order of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not priority of payments may be changed only with the written consent of each affected Lender and the Administrative Agent and the order of priority of payments in default hereunder unless Landlord has not begun to cure any failure respect of its obligations hereunder within thirty (30) days after Letters of Credit may be changed only with the receipt by Landlord of prior written notice from Tenant consent of the alleged failure to perform and does not continue SpanishRiverIssuing Lenders.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. 24.1 Events of Default by Tenant. The happening of any one or more of the following listed events (“Events of Default”) shall constitute a breach of this Lease by Tenant:
(a) The following events shall be deemed to be events failure of default by Tenant under this Lease:
(i) Tenant shall fail to pay any Rent rent or any other sums of money due hereunder and such failure shall continue for a period of ten within five (105) business days after the date such Rent or other sums is due (with no notice being required Tenant’s receipt of Landlord); hereinafter referred to as a "Monetary Default:’s notice of such failure;
(iib) Other than as set forth in Pxxxxxxxx 00.0 (x), (x), (x), (x), (x), (x) or (h), the failure of Tenant shall fail to comply with any other Non-Monetary term, provision or covenant of this Lease or any other agreement between Landlord and Tenant, if applicableincluding the Work Letter all of which terms, after Landlord has provided provisions, and covenants shall be deemed material, within thirty (30) days prior written after Tenant’s receipt of Landlord’s notice of such Non-Monetary Default and Tenant has failed to cure failure, unless such Non-Monetary Default failure cannot be reasonably cured within said thirty (30) days provided; howeverperiod, if such default canin which event an Event of Default shall not be cured within thirty (30) days and if deemed to have occurred so long as Tenant is diligently attempting commences to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety failure within ten (9010) days after receipt of such notice and thereafter continuously (to the extent feasible) and diligently prosecutes such cure a Non-Monetary defaultto completion;
(iiic) The taking of the leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(ivd) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become Guarantor becoming insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws Tenant’s or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy lawsGuarantor’s notification to Landlord that it anticipates either condition;
(vie) The filing of any bankruptcy or similar proceeding by or against Tenant makes an assignment for or Guarantor under any law including the benefit filing of creditors, a petition by any creditor of Tenant or Guarantor and such filing shall not be dismissed within the meaning of the bankruptcy laws or Tenant consents to the ninety (90) days; and
(f) The appointment of a receiver or custodian trustee for Tenant’s leasehold interest in the Premises or for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication assets of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 aboveGuarantor.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. (a) The following events shall be deemed to be events constitute an event of default by Tenant Seller hereunder (each, an “Event of Default”):
(i) failure of Seller to repurchase one or more Purchased Assets on the applicable Repurchase Date;
(ii) failure of Seller to apply any Income received by Seller in accordance with the provisions hereof;
(A) the Transaction Documents shall for any reason not cause, or shall cease to cause, Buyer to be the owner of, or, if recharacterized as a secured financing, a secured party with respect to, the Repurchase Assets specified in Section 6(a) hereof and the other collateral specified in Section 6(c) or Section 6(d) hereof free of any adverse claim, liens and other rights of others (other than as granted herein); (B) if a Transaction is recharacterized as a secured financing, the Transaction Documents with respect to any Transaction shall for any reason cease to create a valid first priority perfected security interest in favor of Buyer in the Repurchase Assets specified in Section 6(a) hereof and the other collateral specified in Section 6(c) or Section 6(d) hereof; or (C) if any of the Transaction Documents shall cease to be in full force and effect or if the enforceability of any of them is challenged or repudiated by Seller, Guarantor or Servicer or any other Person;
(iv) failure of Seller to make the payments required under (A) Section 4(a) hereof on the date such payment is due, or (B) Section 5(b) hereof within one (1) Business Day of the date such payment is due;
(v) failure of Seller to make any other payment owing to Buyer which has become due, whether by acceleration or otherwise, under the terms of this LeaseAgreement which failure is not remedied within the period specified herein or, if no period is specified for such payments (but excluding payments with respect to the Extension Fee, Origination Fee or Annual Fee, which are to be paid on the date such payments are due), five (5) Business Days after notice thereof to Seller from Buyer;
(vi) breach by Seller in the due performance or observance of any term, covenant or agreement contained in Section 11 of this Agreement;
(vii) a Change of Control shall have occurred with respect to Seller or Guarantor;
(viii) any representation made by Seller herein or in any Transaction Document shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated; provided that the representations and warranties made by Seller in Section 10(vi) or Section 10(viii) (in the case of Section 10(vi), with respect to the affected or Purchased Assets only) hereof shall not be considered an Event of Default if incorrect or untrue in any material respect (which determination shall be made with respect to the representations and warranties in Exhibit V without regard to any knowledge qualifier therein), if Buyer terminates the related Transaction and Seller repurchases the related Purchased Asset(s) on an Early Repurchase Date no later than five (5) Business Days after receiving written notice of such incorrect or untrue representation; provided, however, that if Seller shall have made any such representation with knowledge that it was materially incorrect or untrue at the time made, such misrepresentation shall constitute an Event of Default;
(ix) (A) a final judgment by any competent court in the United States of America for the payment of money in an amount greater than $100,000 shall have been rendered against Seller and remains undischarged or unpaid for a period of thirty (30) days, during which period execution of such judgment is not effectively stayed or (B) a final judgment by any competent court in the United States of America for the payment of money in an amount greater than $20,000,000 shall have been rendered against Guarantor and remains undischarged or unpaid for a period of thirty (30) days, during which period execution of such judgment is not effectively stayed;
(A) Seller shall have defaulted or failed to perform under any note, indenture, loan agreement, guaranty, swap agreement or any other contract, agreement or transaction to which it is a party, and which default involves the failure to pay an obligation in excess of $100,000 or (B) Guarantor shall have defaulted or failed to perform under any note, indenture, loan agreement, guaranty, swap agreement or any other contract, agreement or transaction to which it is a party, and which default involves the failure to pay an obligation in excess of $20,000,000; provided, however, that any such default, failure to perform or breach shall not constitute an Event of Default if Seller or Guarantor, as the case may be, cures such default, failure to perform or breach, as the case may be, within the grace period, if any, provided under the applicable agreement;
(xi) as of the end of any fiscal quarter, Parent Guarantor’s (A) ratio of Total Indebtedness to Total Assets is greater than 0.80 to 1.0 (adjusted to remove the impact of FAS 140, FAS 166, FAS 167 and FIN 46 and transfers to special purpose entities that are wholly owned by Parent Guarantor in connection with bona fide securitization transactions); (B) Cash Liquidity is less than the greater of (x) $15,000,000 and (y) 5% of Parent Guarantor’s recourse Indebtedness; or (C) Tangible Net Worth is less than the sum of (1) 75% of Net Cash Proceeds received by Parent Guarantor from issuances or sales of its common stock in the IPO and its concurrent private offerings plus (2) 75% of Net Cash Proceeds received by Parent Guarantor from issuances or sales of its common stock occurring after the IPO Closing Date;
(xii) if Seller shall breach or fail to perform any of the terms, covenants, obligations or conditions of this Agreement or any other Transaction Document, other than as specifically otherwise referred to in this Section 14(a), and such breach or failure to perform is susceptible of cure and is not remedied within (A) the specified cure period or (B) if no cure period is specified, five (5) Business Days after notice thereof to Seller by Buyer, or its successors or assigns; provided, however, that with respect to clause (B) only, if such default is susceptible of cure but cannot reasonably be cured within such five (5) Business Day period; and provided further that Seller shall have commenced to cure such default within such five (5) Business Day period and thereafter diligently and expeditiously proceeds to cure the same, such five (5) Business Day period shall be extended for such time as is reasonably necessary for Seller, in the exercise of due diligence, to cure such default, and in no event shall such cure period exceed fifteen (15) days from Seller’s receipt of Buyer’s notice of such default;
(xiii) an Act of Insolvency shall have occurred with respect to Seller or Guarantor;
(xiv) an event or circumstance shall have occurred that results in a Material Adverse Effect;
(xv) an “event of default” or “termination event” (as defined in the agreements relating to a facility described below in clause (A), (B) or (C) of this Section 14(a)(xv)) by Seller, Guarantor or a Subsidiary of Guarantor beyond any applicable notice and cure period, shall have occurred under (A) any repurchase facility, loan facility or hedging transaction entered into by Seller, Guarantor or any Subsidiary of Guarantor and Buyer or any Affiliate of Buyer, (B) any repurchase facility, loan facility or hedging transaction with Buyer or any Affiliate of Buyer in which Seller, Guarantor or any Subsidiary of Guarantor is a guarantor or (C) any Hedging Transaction entered into by Seller, Guarantor or any Subsidiary of Guarantor or in which Seller, Guarantor or any Subsidiary of Guarantor is a guarantor; or
(xvi) (A) any of the representations and warranties of Guarantor in the Guaranty or of Parent Guarantor in any Financial Covenant Compliance Certificate shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated or (B) Guarantor shall breach any covenant in the Guaranty, and, if no cure period is specified for the applicable breach, such breach has not been cured within three (3) Business Days after receipt of notice thereof from Buyer.
(b) If an Event of Default shall occur and be continuing, the following rights and remedies shall be available to Buyer:
(i) Tenant At the option of Buyer, exercised by written notice to Seller (which option shall fail be deemed to pay have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency with respect to Seller), the Repurchase Date for each Transaction hereunder shall, if it has not already occurred, be deemed immediately to occur (the date on which such option is exercised or deemed to have been exercised being referred to hereinafter as the “Accelerated Repurchase Date”) (and any Rent Transaction for which the related Purchase Date has not yet occurred shall be canceled).
(ii) If Buyer exercises or is deemed to have exercised the option referred to in Section 14(b)(i) hereof:
(A) Seller’s obligations hereunder to repurchase all Purchased Assets shall become immediately due and payable on and as of the Accelerated Repurchase Date, and all Income deposited in the Blocked Account shall be retained by Buyer and applied to the Repurchase Obligations;
(B) the Repurchase Price with respect to each Transaction (determined as of the Accelerated Repurchase Date) shall include the accrued and unpaid Price Differential with respect to each Purchased Asset accrued at the Pricing Rate applicable upon an Event of Default for such Transaction; and
(C) Custodian shall, upon the request of Buyer (with simultaneous copy of such request to Seller), deliver to Buyer all instruments, certificates and other documents then held by Custodian relating to the Purchased Assets.
(iii) Buyer may, after ten (10) days’ notice to Seller of Buyer’s intent to take such action (provided that no such notice shall be required in the circumstances set forth in Section 9-611(d) of the UCC), (A) immediately sell, at a public or private sale in a commercially reasonable manner and at such price or prices as Buyer may reasonably deem to be satisfactory any or all of the Purchased Assets on a servicing released basis or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Assets, to give Seller credit for such Purchased Assets in an amount equal to the Market Value of such Purchased Assets against the aggregate Repurchase Obligations. The proceeds of any disposition of Purchased Assets effected pursuant to this Section 14(b)(iii) shall be applied first, to the out-of-pocket costs and expenses incurred by Buyer in connection with Seller’s default, second, to the out-of-pocket costs of covering any Hedging Transactions, if any, third, to the Repurchase Price, fourth, to all other outstanding Repurchase Obligations, and fifth, the balance, if any, to Seller. In the event that Buyer shall not have received repayment in full of the Repurchase Obligations following its liquidation of the Purchased Assets, Buyer may, in its sole discretion, pursue Seller and Guarantor (to the extent provided in the Guaranty) for all or any part of any deficiency.
(iv) The parties recognize that it may not be possible to purchase or sell all of the Purchased Assets on a particular Business Day, or in a transaction with the same purchaser, or in the same manner because the market for such Purchased Assets may not be liquid. In view of the nature of the Purchased Assets, the parties agree that, to the extent permitted by applicable law, liquidation of a Transaction or the Purchased Assets shall not require a public purchase or sale and that a good faith private purchase or sale shall be deemed to have been made in a commercially reasonable manner. Accordingly, Buyer may elect, in its sole discretion, the time and manner of liquidating any Purchased Assets, and nothing contained herein shall (A) obligate Buyer to liquidate any Purchased Assets on the occurrence and during the continuance of an Event of Default or to liquidate all of the Purchased Assets in the same manner or on the same Business Day or (B) constitute a waiver of any right or remedy of Buyer.
(v) Seller shall be liable to Buyer for (A) the amount of all out-of-pocket expenses, including reasonable legal fees and expenses of counsel, incurred by Buyer in connection with or as a consequence of an Event of Default, (B) all out-of-pocket costs incurred in connection with covering Hedging Transactions (including short sales) or entering into replacement transactions, (C) all damages, losses, judgments, out-of-pocket costs and other sums out-of-pocket expenses of money due any kind that may be imposed on, incurred by or asserted against Buyer relating to or arising out of such hedging transactions or covering transactions, and (D) any other loss, damage, out-of-pocket cost or expense directly arising or resulting from the occurrence of an Event of Default.
(vi) Buyer may exercise any or all of the remedies available to Buyer immediately upon the occurrence of an Event of Default and at any time during the continuance thereof. All rights and remedies arising under the Transaction Documents, as amended from time to time, are cumulative and not exclusive of any other rights or remedies that Buyer may have.
(vii) Buyer may enforce its rights and remedies hereunder without prior judicial process or hearing, and such failure Seller hereby expressly waives any defenses Seller might otherwise have to require Buyer to enforce its rights by judicial process. Seller also waives any defense Seller might otherwise have arising from the use of nonjudicial process, disposition of any or all of the Purchased Assets, or from any other election of remedies. Seller recognizes that nonjudicial remedies are consistent with the usages of the trade, are responsive to commercial necessity and are the result of a bargain at arm’s length.
(viii) Without limiting any other rights or remedies of Buyer, Buyer shall continue for have the right of setoff set forth in Section 26 hereof.
(ix) Buyer shall have, in addition to its rights and remedies under the Transaction Documents, all of the rights and remedies provided by applicable federal, state, foreign, and local laws (including, without limitation, if the Transactions are recharacterized as secured financings, the rights and remedies of a period secured party under the UCC of the State of New York, to the extent that the UCC is applicable, and the right to offset any mutual debt and claim), in equity, and under any other agreement between Buyer and Seller, exercisable upon ten (10) days after notice from Buyer to Seller. Without limiting the date such Rent generality of the foregoing, Buyer shall be entitled to set off the proceeds of the liquidation of the Purchased Assets against all of Seller’s obligations to Buyer or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of its Affiliates, whether under this Lease Agreement or under any other agreement between Landlord Seller and TenantBuyer or between Seller and any Affiliate of Buyer, if applicableor otherwise, after Landlord has provided thirty (30) days prior written notice of whether or not such Non-Monetary Default and Tenant has failed obligations are then due, without prejudice to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting Buyer’s right to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;recover any deficiency.
(iiix) The leasehold hereunder demised Buyer shall be taken on execution or other process of law in at any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall time have the right, at its electionin each case until such time as Buyer determines otherwise, to cancel and terminate this Lease and dispossess Tenant by summary proceedings retain, to suspend payment or other lawful means;
(ii) Landlord shall have the right performance of, or to declare all amounts and rents due under this Lease for the remainder decline to remit, any amount or property that Buyer would otherwise be obligated to pay, remit or deliver to Seller hereunder if a Default or an Event of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rentDefault has occurred.
(iiixi) Landlord may elect For the avoidance of doubt, Buyer shall have no obligation to enter and repossess review or purchase any Eligible Asset during the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount continuance of rent received from such reletting and the rent due and payable under the term an Event of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedyDefault.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (LoanCore Realty Trust, Inc.)
Events of Default Remedies. a) The Upon the occurrence of any of the following events shall be deemed to be events (each, an “Event of default by Tenant under this Lease:Default”):
(i) Tenant a. the Borrower shall fail to pay make the payment of any Rent or amount of any other sums of money principal outstanding after the date such payment shall become due and payable hereunder and such which failure shall continue for a period more than five (5) business days notice thereof from the Lenders to the Borrower; or
b. the Borrower shall fail to make any payment of ten (10) days interest after the date such Rent or other sums is interest shall become due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant and payable hereunder which failure shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises continue for more than ten five (105) business days notice thereof from the Lenders to the Borrower; or
c. any representation, warranty, covenant or certification made by the Borrower in any Loan Document or any certificate delivered by the Borrower to the Lenders under this Agreement shall prove to have been false or incorrect in a material respect or breached in a material respect on the date as of which made, and such misstatement or breach is not cured within five (5) business days after receipt of written notice thereof from the Lenders to the Borrower; or
d. the holder of any indebtedness (“Indebtedness”) of the Borrower shall accelerate any payment of any amount or amounts of principal or interest on such Indebtedness (other than the Indebtedness hereunder) prior to its stated maturity or payment date the aggregate principal amount of which Indebtedness is in excess of $1,000,000, whether such Indebtedness now exists or shall hereinafter be created, and such accelerated payment entitles the holder thereof to immediate payment of such Indebtedness which is due and owing and such Indebtedness has not been discharged in full or such acceleration has not been stayed, rescinded or annulled within twelve (12) business days of such acceleration; or
e. a judgment or order for the payment of money shall be rendered against the Borrower in excess of $1,000,000 in the aggregate (net of any applicable insurance coverage) for all such judgments or orders against all such persons (treating any deductibles, self insurance or retention as not so covered) that shall not be discharged, and all such judgments and orders remain outstanding, and there shall be any period of sixty (60) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning days following entry of the bankruptcy laws judgment or Tenant consents order in excess of $1,000,000 or the judgment or order which causes the aggregate amount described above to exceed $1,000,000 during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
f. the Borrower shall (i) apply for or consent to the appointment of, or the taking of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22possession by, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian custodian, trustee or trustee for liquidator of itself or of all or a substantial part of its property or assets, (ii) admit in writing its inability to pay its debts as such debts become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the Bankruptcy Code or under the comparable laws of any jurisdiction (foreign or domestic), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors’ rights generally, (vi) acquiesce in writing to any petition filed against it in an involuntary case under the Bankruptcy Code or under the comparable laws of any jurisdiction (foreign or domestic), or (vii) take any action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing; or
g. a proceeding or case shall be commenced in respect of the Borrower without its consent application or the assuming of custody or sequestration by a consent, in any court of competent jurisdiction jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any substantial part of its interests assets or (iii) similar relief in respect of it under any law providing for the Premises relief of debtors, and such proceeding or case described in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
clause (i) Landlord shall have the right), at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord or (iii) shall have continue undismissed, or unstayed and in effect, for a period of sixty (60) consecutive days or any order for relief shall be entered in an involuntary case under the right Bankruptcy Code or under the comparable laws of any jurisdiction (foreign or domestic) against the Borrower or action under the laws of any jurisdiction (foreign or domestic) analogous to declare all amounts and rents due under this Lease for the remainder any of the existing term foregoing shall be taken with respect to the Borrower and shall continue undismissed, or unstayed and in effect for a period of sixty (60) consecutive days; THEN, the Lenders may, at their election and without demand or notice of any applicable extension or renewal thereof) to be kind, which are hereby waived, declare the unpaid balance of the Notes, and accrued interest thereon, immediately due and payable, and thereupon all rents and other charges due hereunder proceed to collect the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusivesame, and in additionexercise any and all other rights, Landlord may pursue any other powers and remedies that may be permitted given it by the Loan Documents or otherwise at law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a) The occurrence of any one or more of --------------------------- the following events shall be deemed to be events constitute an "Event of Default" as that term is used ---------------- herein, and any default by Tenant which may occur hereunder shall constitute a default under this Leaseeach of the other Loan Documents:
(ia) Tenant shall fail to pay If any Rent installment of principal or any other sums of money due hereunder and such failure shall continue for a period of interest on the Loan is not paid within ten (10) days following Borrowers receipt of written notice after the date such Rent or other sums is same becomes due (with no notice being and payable as required of Landlord); hereinafter referred to as a "Monetary Default:herein;
(iib) Tenant If default shall fail to comply with be made by Borrower in the due performance of any other Non-Monetary provision of this Lease covenant, agreement or any other agreement between Landlord and Tenantcondition herein contained or required to be performed or observed by Borrower, if applicableprovided, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, that if such default canis -------- ------- not be a default otherwise described in this Section 6.1 and such default is cured within thirty (30) days and if Tenant is diligently attempting after Bank mails written notice to cure Borrower of such default, then the same shall not constitute an Event of Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iiic) The leasehold hereunder demised shall be taken on execution If any representation, warranty, statement, report or other process of law certificate contained herein, in any action against Tenantof the Loan Documents or contained in any other item furnished to Bank by or on behalf of Borrower in connection with the Loan shall prove to be in any material respect incorrect;
(ivd) Tenant shall fail to promptly move into, take possession If any Obligor defaults in the performance of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon obligations under any substantial portion of the Premises for more than ten (10) consecutive daysother Loan Documents, or if a default or an event of default shall otherwise occur under the terms of any of the other Loan Documents which is not cured within the applicable cure period, if any, provided in said documents;
(ve) Tenant shall become insolvent If any Obligor shall: (i) file a voluntary petition in bankruptcy or unable for arrangement, reorganization or other relief under any chapter of the Federal Bankruptcy Code or any similar Law, state or federal, now or hereafter in effect; or (ii) file an answer or other pleading in any proceedings admitting insolvency, bankruptcy, or inability to pay its debts as they become duemature; or (iii) not cause to be vacated within sixty (60) days after the filing against it, Tenant files any involuntary proceedings under the Federal Bankruptcy Act or similar Law, state or federal, now or hereafter in effect, or any order appointing a petition in bankruptcy receiver, trustee or liquidator for it or for reorganization under all or a major part of its property or the bankruptcy laws Properties; or an admission, answer (iv) be adjudicated a bankrupt; or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(viv) Tenant makes make an assignment for the benefit of creditors, within the meaning of the bankruptcy laws creditors or Tenant consents shall admit in writing its inability to pay its debts generally as they become due or shall consent to the appointment of a receiver or custodian for trustee or liquidator of all or a substantial the major part of its property, or the Properties; or SpanishRiver.Manchester.September 22(vi) be dissolved, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)terminated or merged, if a corporation;
(xxxf) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue If any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant Properties are damaged or destroyed by summary proceedings fire or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and casualty or any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and condemnation proceeding is commenced against any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event Properties, and Bank does not make available the proceeds of default any insurance or condemnation awards for the restoration of the Property affected by such damage, destruction or condemnation; provided, however, that -------- ------- such non availability shall not be deemed or construed constitute an Event of Default if each of the following conditions are satisfied (i) Borrower delivers to constitute Bank a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable Collateral Substitution/Addition Request pursuant to the maximum extent permissible by applicable law, and the unenforceability terms of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder Section 2.9 herein within thirty (30) days after the receipt by Landlord of written notice from Tenant date the damage or destruction occurs pursuant to which another hotel property will be added as Collateral for the Loan or substituted in lieu of the alleged damaged or destroyed Property, (ii) Bank notifies Borrower within thirty (30) days after receipt of such request that Bank is willing to consider approving such request, and (iii) after Bank gives such notice, all Collateral Substitution/Addition Documents have been fully executed and delivered and all conditions to the effectiveness thereof as provided therein have been satisfied;
(g) If any Loan Document ceases to be in full force and effect or if any Obligor asserts that any one or more of the Loan Document is invalid or unenforceable; provided, however, the Bank's failure to perform and does file a UCC continuation statement shall not continue SpanishRiver.Manchester.September 22constitute an Event of Default;
(h) If a default or event of default shall occur under or pursuant to the terms of any other indebtedness or other obligation of Borrower or any other Obligor to Bank, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Leasewhether now existing or hereafter arising, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as including but not limited to any covenant other loan, line of credit, revolving credit, letter of credit or agreement contained in this Lease industrial bond financing;
(i) If any litigation is commenced involving any Obligor or as a result any one or more of the breach Properties, which in Bank's reasonable opinion will have a material adverse effect on the Properties, or on Borrower's financial condition or on Borrower's ability to perform its obligations hereunder;
(j) Sale or encumbrance of any promise one or inducement hereof, whether in this Lease more of the Properties or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenantany other collateral or security for the Loan without Bank's remedies for default hereunder and for breach prior written consent; or the making of any promise levy, seizure or inducement attachment of or upon the Properties, or any other collateral or security for the Loan, if such levy, seizure or attachment remains unbonded, undismissed or unstayed and in effect for a period of thirty (30) days;
(k) If any Obligor defaults in prompt and full payment or performance when due (by Landlord shall be limited acceleration or otherwise) in connection with obligations due third parties or any material agreement to which such Obligor is a suit party and such default continues beyond any permissible cure period provided for damages and/or injunction. Tenant hereby covenants thatin such arrangements with third parties;
(l) If any collusion, prior to fraud, dishonesty or bad faith by or with the exercise acquiescence of any Obligor or any partner or officer of any such remediesentity which in any way relates to or affects the Loan or the Properties is discovered on or after the date hereof;
(m) If a judgment or judgments for the payment of money in excess of $100,000.00 in the aggregate shall have been rendered against any Obligor and the same shall have remained unsatisfied and in effect, it will give the mortgagees on the Property written notice and without stay of execution, for a reasonable period of time thirty (30) days;
(n) If there occurs any Change of Control;
(o) If any breach occurs in which to cure any alleged default. Notwithstanding anything one or more of the covenants set forth in Section 5.5, 5.8, 5.9, 5.10, 5.11, 5.12, 5.13 (subject to the contrary contained herein, nothing shall prevent Tenant from maintaining cure provisions provided therein) or asserting 5.16; or
(p) If any of breach occurs in the foregoing remedies covenant set forth in Section 5.1 for more than twenty four (or any other remedy24) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordhours.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. The Mortgagee may enforce this Mortgage in any way it may decide at any time (in each case, acting at the direction of Holders of not less than a majority in aggregate principal amount of the Outstanding Securities) at which an Event of Default has occurred and is continuing by exercising any powers conferred on it by law or by this Mortgage and, in addition, may (in each case, acting at the direction of Holders of not less than a majority in aggregate principal amount of the Outstanding Securities):
(a) The following events shall be deemed to be events of default demand payment by Tenant under this Lease:
(i) Tenant shall fail to pay any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of the Indebtedness hereby secured, whereupon such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord payment shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement anything contained in the Note Documents or this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything Mortgage to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting notwithstanding and without prejudice to any other rights and remedies of the foregoing Mortgagee under the Note Documents or this Mortgage, provided, however, that if, before any sale of the Rig, all defaults shall have been remedied in a manner satisfactory to the Mortgagee (acting at the direction of the requisite Holders in accordance with the Indenture), the Mortgagee (acting at the direction of the requisite Holders in accordance with the Indenture) may waive such defaults by written notice to the Shipowner; but no such waiver shall extend to or affect any subsequent or other default or impair any rights and remedies consequent thereon;
(b) at any time and as often as may be necessary, take any such action as may be necessary or advisable for the purpose of protecting the security created by this Mortgage and each and every expense or liability (including reasonable fees of counsel) so incurred by the Mortgagee in or about the protection of such security shall be repayable to it by the Shipowner promptly after demand. The Shipowner shall promptly execute and deliver to the Mortgagee such documents or cause promptly to be executed and delivered to the Mortgagee such documents, if any, and shall promptly do and perform such acts, if any, as may be necessary or advisable to facilitate or expedite the protection, maintenance and enforcement of the security created by this Mortgage;
(c) exercise all the rights and remedies in foreclosure and otherwise given to mortgagees by Chapter 3 of the Maritime Xxx 0000 of the Republic of the Xxxxxxxx Islands as amended and all applicable laws of any other remedyjurisdiction;
(d) take possession of the Rig, wherever the same may be, without prior demand and without legal process (when permissible under applicable law) and cause the Shipowner or other Person in a proceeding instituted possession thereof forthwith upon demand of the Mortgagee to surrender to the Mortgagee possession thereof as demanded by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.the Mortgagee;
Appears in 1 contract
Samples: Indenture (Transocean Ltd.)
Events of Default Remedies. (a) The following events shall be deemed to be events of default by Tenant under this Lease:
(i) : Tenant shall fail to pay any Rent or any other sums sum of money due hereunder and such failure shall continue for a period of ten TEN (10) days after the date such Rent or other sums is due DAYS AFTER TENANT'S RECEIPT OF NOTICE THEREOF FROM LANDLORD; PROVIDED, HOWEVER, THAT LANDLORD SHALL NOT BE REQUIRED TO PROVIDE TENANT WITH THE NOTICE AND TEN-DAY PERIOD SET FORTH IN THIS SUBPARAGRAPH MORE THAN THREE (with no notice being required of Landlord)3) TIMES DURING ANY LEASE YEAR, AND THE FOURTH AND EACH SUBSEQUENT FAILURE TO TIMELY PAY SUCH SUMS DURING ANY LEASE YEAR SHALL IMMEDIATELY CONSTITUTE AN EVENT OF DEFAULT HEREUNDER; hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and TenantTenant not requiring the payment of money, if applicableall of which terms, after Landlord has provided provisions and covenant shall be deemed material, and such failure shall continue for a period of thirty (30) days prior (or immediately if the failure involves a hazardous condition) after written notice of such Non-Monetary Default and Tenant has failed default is delivered to cure such Non-Monetary Default within said thirty Tenant; PROVIDED, THAT IN THE EVENT ANY SUCH FAILURE IS NOT REASONABLY SUSCEPTIBLE OF CURE WITHIN SUCH THIRTY (30) days provided; however30)-DAY PERIOD, if such default cannot be cured within thirty TENANT SHALL HAVE A REASONABLE TIME TO CURE SUCH FAILURE (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety NOT TO EXCEED NINETY (90) days to cure a Non-Monetary default;
(iii) The DAYS TOTAL), PROVIDED TENANT COMMENCES CURE AS SOON AS IS REASONABLY POSSIBLE, AND PROSECUTES SUCH CURE DILIGENTLY TO COMPLETION; the leasehold hereunder demised shall be taken on execution execution, levied upon or attached or other process of law in any action against Tenant;
(iv) ; Tenant notifies Landlord, at any time prior to the Commencement Date, that Tenant does not intend to take occupancy of the Premises upon the Commencement Date or Tenant shall fail to promptly move into, into and take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or in, vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Premises; Tenant shall become insolvent or unable to pay its debts as they become due, or Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting notifies Landlord that it anticipates either condition; Tenant takes any action to, or requesting the relief afforded by the bankruptcy laws;
(vi) notifies Landlord that Tenant makes an assignment for the benefit of creditors, within the meaning intends to file a petition under any section or chapter of the bankruptcy laws United States Bankruptcy Code, as amended from time to time, or under any similar law or statute of the United States or any State thereof; or a petition shall be filed against Tenant under any such statute or Tenant consents or any creditor of Tenant notifies Landlord that it knows such a petition will be filed or has been filed or Tenant notifies Landlord that it expects such a petition to the appointment of be filed; or a receiver or custodian trustee shall be appointed for Tenant's leasehold interest in the Premises or for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all assets of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Assembly/Light Manufacturing/Office Lease (Triton Network Systems Inc)
Events of Default Remedies. In case anyone or more of the following events, herein termed “events of default”, shall happen:
(a) The following events the Shipowner fails to pay on the date due any payment of principal in respect of the Indebtedness hereby secured as provided herein or the Shipowner fails to pay within three (3) Business Days of the date due any payment of interest or any Commitment Commission or any other amount owing under the Subsidiaries Guaranty; or
(b) the statements in Article I shall prove to have been untrue when made in a material way; or
(c) a default in the due and punctual observance and performance of any of the provisions of Sections 2, 3, 7, 8, 9(b), 11, 12, 13(a), (b), (c), (e), (i), and (k), 16 or 17 of Article II hereof shall have occurred and be continuing; or
(d) a breach or omission in the due and punctual observance of any of the other covenants and conditions herein required to be kept and performed by the Shipowner and such breach or omission shall continue for 30 days after the day the Shipowner first knew or should have known of such breach or omission; or
(e) an Event of Default shall have occurred and be continuing under the Credit Agreement; or
(f) a payment default by the Borrower under any Interest Rate Protection Agreement or Other Hedging Agreement shall have occurred and be continuing; or
(g) any notice shall have been issued by the government or any bureau, department, officer, board or agency thereof of the country of registry of the Vessel to the effect that the Vessel is subject to cancellation from such registry or the certificate of registry of the Vessel is subject to revocation or cancellation for any reason whatsoever, and such notice shall not have been cancelled or annulled on or before seven (7) Business Days prior to the date set forth in such notice for such cancellation or revocation; or
(h) the Vessel shall be deemed to cancelled from the country of registry of the Vessel or the certificate of registry of the Vessel is revoked or cancelled for any reason whatsoever; then: the security constituted by this Mortgage shall become immediately enforceable and that without limitation, the enforcement remedies specified can be events exercised irrespective of default by Tenant whether or not the Mortgagee has exercised the right of acceleration under this Leasethe Credit Agreement or any of the other Credit Documents and the Mortgagee shall have the right to:
(i) Tenant Declare all the then unpaid Indebtedness hereby secured to be due and payable immediately, and upon such declaration, the same shall fail to pay become and be immediately due and payable provided, however, that no declaration shall be required if an Event of Default shall have occurred by reason of a Default under Section 10.05 of the Credit Agreement, then and in such case, the Indebtedness hereby secured shall become immediately due and payable on the occurrence of such Event of Default without any Rent notice or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:demand;
(ii) Tenant shall fail Exercise all of the rights and remedies in foreclosure and otherwise given to comply with a mortgagee by the provisions of the laws of the country of registry of the Vessel or of any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as jurisdiction where the Vessel may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultfound;
(iii) The leasehold hereunder demised shall Bring suit at law, in equity or in admiralty, as it may be taken on execution advised, to recover judgment for the Indebtedness hereby secured, and collect the same out of any and all property of the Shipowner whether covered by this Mortgage or other process of law in any action against Tenantotherwise;
(iv) Tenant shall fail to promptly move into, take Take and enter into possession of the Vessel, at any time, wherever the same may be, without legal process and operate its business on without being responsible for loss or damage and the Premises when the Premises are ready for occupancy Shipowner or shall cease to do business other person in or vacate or abandon any substantial portion possession forthwith upon demand of the Premises Mortgagee shall surrender to the Mortgagee possession of the Vessel;
(v) Without being responsible for more than loss or damage, the Mortgagee may hold, lay up, lease, charter, operate or otherwise use such Vessel for such time and upon such terms as it may deem to be for its best advantage, and demand, collect and retain all hire, freights, earnings, issues, revenues, income, profits, return premiums, salvage awards or recoveries, recoveries in general average, and all other sums due or to become due in respect of such Vessel or in respect of any insurance thereon from any person whomsoever, accounting only for the net profits, if any, arising from such use of the Vessel and charging upon all receipts from the use of the Vessel or from the sale thereof by court proceedings or pursuant to subsection (vi) next following, all costs, expenses, charges, damages or losses by reason of such use; and if at any time the Mortgagee shall avail itself of the right herein given them to take the Vessel, the Mortgagee shall have the right to dock the Vessel, for a reasonable time at any dock, pier or other premises of the Shipowner without charge, or to dock her at any other place at the cost and expense of the Shipowner;
(vi) Without being responsible for loss or damage, the Mortgagee may sell the Vessel upon such terms and conditions as to the Mortgagee shall seem best, free from any claim of or by the Shipowner, at public or private sale, by sealed bids or otherwise, by mailing, by air or otherwise, notice of such sale, whether public or private, addressed to the Shipowner at its last known address and to any other registered mortgagee, twenty (20) calendar days prior to the date fixed for entering into the contract of sale and by first publishing notice of any such public sale for ten (10) consecutive days, in daily newspapers of general circulation published in the City of New York, State of New York; in the event that the Vessel shall be offered for sale by private sale, no newspaper publication of notice shall be required, nor notice of adjournment of sale; sale may be held at such place and at such time as the Mortgagee by notice may have specified, or may be adjourned by the Mortgagee from time to time by announcement at the time and place appointed for such sale or for such adjourned sale, and without further notice or publication the Mortgagee may make any such sale at the time and place to which the same shall be so adjourned; and any sale may be conducted without bringing the Vessel to the place designated for such sale and in such manner as the Mortgagee may deem to be for its best advantage, and the Mortgagee may become the purchaser at any sale. The Shipowner agrees that any sale made in accordance with the terms of this paragraph shall be deemed made in a commercially reasonable manner insofar as it is concerned;
(vvii) Tenant shall become insolvent or unable Require that all policies, contracts, certificates of entry and other records relating to pay its debts as they become duethe insurance with respect to the Vessel, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admissionincluding, answer or other responsive pleading consenting but not limited to, those described in Article II, Section 13 hereof (the “Insurances”) (including details of and correspondence concerning outstanding claims) be forthwith delivered to or requesting to the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning order of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; orMortgagee;
(viii) The adjudication Collect, recover, compromise and give a good discharge for any and all monies and claims for monies then outstanding or thereafter arising under the Insurances or in respect of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all the earnings or any part of its interests in requisition compensation and to permit any brokers through whom collection or recovery is effected to charge the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 aboveusual brokerage therefor.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a) The occurrence of any of the following events or conditions shall be deemed to be events constitute an "Event of default by Tenant under this LeaseDefault" hereunder:
(ia) Tenant Sellers shall fail to pay make any Rent or any other sums of money payment on this Note when due hereunder and such failure shall continue continues for a period of ten (10) days after the date written notice of such Rent or other sums default is due (with no notice being required of Landlord); hereinafter referred given by Buyers to as a "Monetary Default:Sellers;
(iib) Tenant Sellers or the Equity Owner (or any of their Affiliates) shall fail to comply with default in the observance or performance of any covenant or agreement contained in this Note or in any other Non-Monetary provision Note Document (including any breach or nonperformance by Sellers of this Lease any representation, warranty, covenant or any other agreement between Landlord made by Sellers under the terms of the Purchase Agreement) and Tenant, if applicable, after Landlord has provided such default shall continue uncured for a period of thirty (30) days prior after written notice of such Non-Monetary default is given by Buyers to Sellers (the "Default and Tenant has failed to Notice"), provided, however, that should such default not be susceptible of cure within such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant day period so long as Seller is diligently attempting to prosecuting curing such default, and such cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than is effected within ninety (90) days of the Default Notice, no default shall be deemed to cure a Non-Monetary defaulthave occurred hereunder;
(c) Sellers or the Equity Owner shall: (i) file a voluntary petition or assignment in bankruptcy or a voluntary petition or assignment or answer seeking liquidation, reorganization, arrangement, readjustment of its debts, or any other relief under the Bankruptcy Reform Act of 1978, as amended (the "Bankruptcy Code"), or under any other act or law pertaining to insolvency or debtor relief, whether state, federal, or foreign, now or hereafter existing; (ii) enter into any agreement indicating consent to, approval of, or acquiescence in, any such petition or proceeding; (iii) The leasehold hereunder demised shall be taken on execution apply for or other process permit the appointment, by consent or acquiescence, of law in any action against Tenant;
a receiver, custodian or trustee of all or a substantial part of its property; or (iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files make a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an general assignment for the benefit of its creditors;
(d) There occurs (i) a filing or issuance against Sellers or the Equity Owner or an involuntary petition in bankruptcy or seeking liquidation, within reorganization, arrangement, readjustment of its debts or any other relief under the meaning of Bankruptcy Code, or under any other act or law pertaining to insolvency or debtor relief, whether state, federal or foreign, now or hereafter existing; (ii) the bankruptcy laws or Tenant consents to the involuntary appointment of a receiver receiver, liquidator, custodian or custodian trustee of Sellers or the Equity Owner or for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxxiii) (Xxxxxxxx)
(xxx) Xxx filing against Tenant the issuance of a petition in bankruptcy warrant of attachment, execution or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for similar process against all or a any substantial part of its the property without its consent of Sellers or the assuming Equity Owner; provided that in each case (subsections (d)(i), (d)(ii) or (d)(iii)) such shall not have been discharged (or provision shall not have been made for such discharge), or stay of custody execution thereof shall not have been procured, within sixty (60) days from the date of entry thereof;
(e) If any representation or sequestration warranty made by a court Sellers or the Equity Owner herein or in any of competent jurisdiction the other Note Documents at any time under or in connection herewith, shall prove to have been incorrect in any material respect on or as of all the date made or deemed made;
(f) The dissolution, suspension, discontinuance of business of Sellers or the Equity Owner;
(g) If Sellers or the Equity Owner shall sell all, or substantially all all, of Tenant's property, and within thirty their assets (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk other than to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably deniedBuyers); or
(viiih) The adjudication If Sellers or the Equity Owner suffers involuntarily a change in control, or permits a change in control, of Tenant as Sellers or the Equity Owner's equity interests, or if Sellers or the Equity Owner is a bankruptor; or
(ix) Tenant shall attempt party to assign, transfer, sublet all a merger or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) consolidation that is not permitted by Buyers. Upon the occurrence and during the continuance of any Event of Default hereunder, any and all of the indebtedness evidenced by this Note (including the outstanding Principal and all unpaid Interest accrued thereon) may be immediately declared due and payable and thereupon shall become immediately due and payable in full, and Buyers shall have all of the rights and remedies described herein (or in the Purchase Agreement) and may exercise any and all such remedies in their sole discretion. Further, Sellers hereby agree to pay all reasonable and actual out-of-pocket costs and expenses, including reasonable attorneys' fees, incurred by Buyers following an Event of Default in the collection of the indebtedness evidenced by this Note or in enforcing any of the rights, powers, remedies and privileges of Buyers hereunder. Interest on such costs shall accrue at 9.5% per annum. In the event or events that any payment of default any outstanding Principal of, Interest on or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents amount due under this Lease for the remainder Note is not paid when due (taking into account any grace period), whether by reason of the existing term (and any applicable extension maturity, acceleration or renewal thereof) to be immediately due and payableotherwise, and thereupon all rents and other charges due hereunder this Note is placed in the hands of an attorney or attorneys for collection, or if this Note is placed in the hands of any attorney or attorneys for representation of Buyers in connection with bankruptcy or insolvency proceedings related to or affecting this Note, Sellers hereby promise to pay to the end order of Buyers, in addition to all other amounts otherwise due on, under or in respect of this Note, the initial term costs and any renewal termexpenses of such collection and representation, if applicableincluding, without limitation, reasonable attorneys' fees and expenses (whether or not litigation shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable commenced in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such actionaid thereof). All Interest on such remedies of Land- lord costs shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedyaccrue at 9.5% per annum.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a) The following events shall be deemed to be constitute events of default by Tenant on the part of the Borrower under this LeaseAgreement:
(i) Tenant shall fail The Borrower fails to pay any Rent on the correct due date or any other sums of money due hereunder in the correct currency, and such failure shall continue default continues for a period of ten (10) longer than 14 days after from the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:date;
(ii) Tenant shall fail The Borrower repeatedly fails to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord pay at the correct time and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultthe correct currency;
(iii) The leasehold hereunder demised shall be taken on execution A debt or other process commitment of law the Borrower or the Guarantor, extraneous to this Agreement, amounting to over USD 1,000,000, or an equivalent amount in any action against Tenantother currency, is defaulted on in such a way that it gives rise to the right to call in the debt, unless such default arises from a reasonable protest on the part of the Borrower to such a claim and a proper defence is maintained;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on The Borrower violates Article 9 concerning the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion insurance of the Premises for more than ten mortgaged property (10v) consecutive daysand the Borrower and/or Íslensk erfðagreining as Guarantor violate the provisions of Article 9 concerning the sale of the mortgaged property (iii);
(v) Tenant shall become insolvent or unable The Borrower violates any provisions of Article 9 other than those referred to pay its debts as they become due, Tenant files in Article 9 (v) and such violation continues for longer than 15 days after the Lender has sent the Borrower a petition in bankruptcy or request for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy lawsremedy;
(vi) Tenant makes an assignment The Borrower’s or the Guarantor’s assets are subjected to attachment, a request is submitted for the benefit enforced auction of creditorstheir assets, within they petition for a moratorium on debts, they seek formal or informal composition agreements with their creditors on the meaning cancellation of debts or a request is made for the subjection of their estates to bankruptcy proceedings;
(vii) A request is made for the dissolution of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent Borrower’s company or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; orGuarantor’s company;
(viii) Any information from the Borrower or the Guarantor and/or the obligations undertaken by the Borrower or the Guarantor under this Agreement prove to have been so substantially false, inadequate or misleading when they were submitted to the Lender that it would probably have affected the Lender’s willingness to grant the loan. In the event of default, as defined in this Article, the lender may, without notice or warning, call in the entire balance of the loan together with accrued interest and other payments due from the Borrower pursuant to this Agreement. The adjudication Borrower shall pay default interest on the due or called-in amount pursuant to Article 3 of Tenant as a bankruptor; or
(ix) Tenant shall attempt the Agreement. When the loan is due in accordance with the above, the Lender is entitled, without further notice, to assignseek enforcement of his claims in the security provided by the Borrower to the Lender. The Lender is free to decide, transferat his sole discretion, sublet whether to seek enforcement of all the security placed or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenantsecurity, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal termand, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Leaselatter, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordwhat order.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Loan Agreement (Decode Genetics Inc)
Events of Default Remedies. (a) The occurrenc e of any of the following events shall be deemed to be events constitute an "Event of default by Tenant Default" under this LeaseAgreement (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any governmental authority):
(1) Both of the following (A) and (B) shall occur:
(A) either a FV Cure Obligation Default or a Fully Reimbursable Obligation Default shall occur at a time when there shall not have been any earlier occurrence of either any Fully Reimbursable Obligation Default or any FV Cure Obligation Default and
(B) thereafter, and on or prior to the later of (x) the Lease Payment Due Date next succeeding such FV Cure Obligation Default or Fully Reimbursable Obligation Default, as the case may be, and (y) the date that is three months after the FV Payment Default giving rise to such FV Cure Obligation Default or Fully Reimbursable Obligation Default, as the case may be, either (i) Tenant SanDisk shall fail to pay the Demand Amount, specified in a Demand Notice duly delivered hereunder, that includes the FV Cure Obligations or Fully Reimbursable Obligations, as the case may be, giving rise to such FV Cure Obligation Default or Fully Reimbursable Obligation Default, as the case may be, (together, solely in the case of any Rent such Demand Amount that includes Fully Reimbursable Obligations, with interest on such Fully Reimbursable Obligations accrued, at a per annum rate of [***], from the Due Date for payment by SanDisk under Section 2 hereof of such Fully Reimbursable Obligations) or (ii) there shall [***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. occur any other FV Payment Default after the FV Payment Default that gave rise to such FV Cure Obligation Default or Fully Reimbursable Obligation Default, as the case may be;
(2) At any time when there shall have been any earlier occurrence of either any Fully Reimbursable Obligation Default or any FV Cure Obligation Default, there shall be any additional occurrence of either any FV Cure Obligation Default or any Fully Reimbursable Obligation Default;
(3) A Pro-Rata Reimbursable Obligation Default;
(4) SanDisk shall fail (other sums than any failure described in paragraph (1), (2) or (3)) to observe or perform any covenant, condition or agreement of money due hereunder SanDisk contained in this Agreement, and such failure shall continue remains uncured for a period of ten (10) 30 days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred thereof from Toshiba to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably deniedSanDisk; or
(viii5) The adjudication a Bankruptcy Event of Tenant as a bankruptor; orSanDisk.
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events Event of Default, Toshiba may, at its option, declare a default or other breach of this Lease by Tenantwritten notice to SanDisk, whether enumerated in this Paragraph or notand at any time thereafter, Landlord shall have the option to pursue any Toshiba may, at its option, take one or more of the following remediesactions:
(i1) Landlord shall have acquire SanDisk's interest in each Lessee in the rightmanner applicable under the New Operating Agreement (in respect of FVC-Japan) and Existing Operating Agreement (in respect of FVC, at its election, if it has not by then been dissolved) to cancel and terminate this Lease and dispossess Tenant an exercise by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder Toshiba of the existing term (and any applicable extension or renewal thereofremedy provided for in Section 10.05(a) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term New Operating Agreement and any renewal termSection 10.05(a) of the Existing Operating Agreement, if applicable, shall be acceleratedrespectively; however, Landlord shall credit Tenant for any re-renting income for provided that the Premises, after deducting Landlord's costs necessary amount payable to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred SanDisk in any such reletting and for any difference between acquisition shall be reduced by the amount of rent received from any Demand Amounts unpaid and due hereunder at the time of such reletting and acquisition, unless such acquisition of SanDisk's interest in each Lessee is effected by Toshiba hereunder following or in conjunction with any exercise of the rent due and remedy provided for in Section 9(b)(3) below (in which case the amount payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord such acquisition shall not be liable for any damages resulting to the Tenant from such actionso reduced). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more ; and/or
(2) upon termination of the remedies herein New Master Agreement under the terms thereof, exercise the rights to a royalty-free license from SanDisk provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
cfor in Section 8.01(g)(ii) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform New Master Agreement; and/or
(3) in the event that (i) the Outstanding Financing Amount has become accelerated and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided payable in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord full as a result of Landlord's a default by FVC-Japan giving rise to the Reimbursable Obligation payable hereunder that gave rise to such Event of Default and (ii) Toshiba pursuant to the Toshiba Guaranty has paid in full the Outstanding Financing Amount as so accelerated following such Event of Default, be entitled to assume full ownership rights to such interest as either Lessee has in the Leased Equipment upon such payment in full of such Outstanding Financing Amount as so accelerated; and/or
(4) exercise any covenant other right or agreement contained in this Lease remedy that may be available under applicable law or as a result of proceed by appropriate court action to enforce the terms hereof or to recover damages for the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a(A) The occurrence of any of the following events shall constitute an Event of Default: (i) if there occurs a default or violation in the full and timely performance of any Obligation owing to Secured Party hereunder or under the Loan Documents; (ii) if any representation, warranty or certification made to Secured Party in, under or pursuant to this Agreement is false or misleading in any material respect as of the date deemed made; (iii) if there occurs any Event of Default (as defined therein) under any Loan Document, or an event occurs which, whether or not denominated as an Event of Default, expressly entitles Secured Party to accelerate repayment of any note and/or exercise its other remedies under the Loan Documents; or (iv) if the holder of any lien or security interest on any part of the Collateral (without implying Secured Party's consent to the creation or existence of any such lien or security interest) gives notice of public or private sale of any portion of the Collateral or institutes foreclosure or other proceedings for the enforcement of its remedies under any instrument creating such lien or security interest.
(B) All cash payments and other proceeds received by Secured Party with respect to the Collateral may be applied by Secured Party to payment of the Loans and to payment and performance of the other Obligations in such order and manner as Secured Party, may elect in its sole and absolute discretion or, at the election of Secured Party, may be held as additional security for the Obligations. Upon the occurrence of an Event of Default hereunder or Debtor otherwise fails to perform any of its duties, covenants, undertakings and responsibilities contained herein or in any of the other Loan Documents, Secured Party shall provide to Lender a written Notice of Default at the address set forth herein and provide to Debtor a period of seven (7) business days from the date of the Notice of Default in order to cure all defaults under this Agreement and/or any of the other Loan Documents. If any such defaults remain uncured as of the close of business on the seventh business day following the date of the Notice of Default, in addition to its other rights hereunder or any of the other Loan Documents: Secured Party may exercise any and all other rights, remedies and recourses under the Loan Documents or now or hereafter existing at law (including, without limitation, those granted by the applicable Uniform Commercial Code) or in equity. Notwithstanding anything herein to the contrary, if Debtor fails or refuses to pay or perform any obligation hereunder, then at any time thereafter, and without waiving or releasing any other right, remedy or recourse Secured Party may have, Secured Party may (but shall not be obligated to), after having provided the notice to Maker required herein, pay or perform such obligation for the amount of and at the expense of Debtor. Upon demand therefor, Debtor will reimburse Secured Party for all sums paid by Secured Party pursuant to this Paragraph, together will interest thereon at the Default Rate from the date incurred until reimbursed to Secured Party. All such sums shall be deemed to be events part of default the Obligations and shall be secured by Tenant all the security for the payment and performance of the Obligations. Security Agreement dated April 30, 2001 Page 8 of 14 --------------------------------------------------------------------------------
(C) Pursuant to its rights under this Lease:
Paragraph 5(b), and subject to the terms and conditions hereof, Secured Party and any officer or agent of Secured Party is hereby constituted and appointed as true and lawful attorney-in-fact of Debtor with power: (i) Tenant shall fail to pay notify or require Debtor to notify any Rent and all account debtors or parties against which Debtor has a claim that the Receivables have been assigned to Secured Party and/or that Secured Party has a security interest therein and that all payments should be made to Secured Party; (ii) to endorse the name of Debtor upon any invoice, freight or express bill, bill of lading, storage or warehouse receipt, drafts against acxxxxt xxxxors or other obligors and if Receivables are a part of Collateral, to sign and endorse the name of Debtor on any assignments, verifications and notices in connection with Receivables, and any instrument or document relating thereto or to rights of Debtor therein; (iv) to notify the post office authorities to change the address for delivery of mail of Debtor to an address designated by Debtor and to receive, open and dispose of all mail addressed to Debtor; (v) and, to send requests for verification to account debtors or other obligors; (vi) to sell, assign, sue for, collect or compromise payment of all or any part of the Collxxxral in the name of Debtor or in its own name, or make any other sums disposition of money due hereunder Collateral, or any part thereof which disposition may be for cash, credit or any combination thereof, and Secured Party may purchase all or any part of the Collateral, at public or, if permitted by law, private sale, and in lieu of actual payment of such failure purchase price, may set-off the amount of such price against the Obligations; granting the Secured Party as the attorney-in-fact of Debtor, full power of substitution and full power to do any and all things necessary to be done in and about the premises as fully and effectually as Debtor might or could do but for this appointment, and hereby ratifying all that said attorney-in-fact shall continue lawfully do or cause to be done by virtue hereof. Neither Secured Party nor its agents shall be liable for a period any acts or omissions or for any error judgment of mistake of fact or law in its capacity as such attorney-in-fact. This power of attorney is coupled with an interest and shall be irrevocable so long as any Obligations shall remain outstanding. Secured Party may, in its discretion, at any such sale, restrict the prospective bidders or purchasers as to their number, nature of business or qualification given the nature of the Collateral and investment intention. Upon any such sale, Secured Party shall have the right to deliver, assign and transfer to the purchaser thereof the Collateral so sold. Each purchaser at any such sale shall hold the Collateral so sold absolutely free from any claim or right of whatsoever kind, including, without limitation, any equity or right of redemption of Debtor, which Debtor hereby specifically waives to the extent Debtor may lawfully do so. Secured Party shall give Debtor at least ten (10) days written notice of any such public or private sale. Such notice, in the case of a public sale, shall state the time and place fixed for such sale. Any such public sale shall be held at such time or times within ordinary business hours as Secured Party shall not be obligated to make any sale pursuant to such notice, but if no such sale is made or only a partial sale is made, subsequent sale. In the case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling price is paid by the purchaser thereof, but Secured Party shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold, and in case of any such failure, such Collateral may again be sold under and pursuant to and in compliance with the provisions hereof. Security Agreement dated April 30, 2001 Page 9 of 14 -------------------------------------------------------------------------------- Secured Party as attorney-in-fact for Debtor may, in the name and instead of Debtor, make and execute all conveyances, assignments and transfers of the Collateral sold pursuant to this Agreement. Nevertheless, Debtor shall, if so requested by Secured Party, ratify and confirm any sale or sales by executing and delivering to Secured Party, or to such purchaser or purchasers, all such instruments as may, in the judgment of Secured Party, be advisable for the purpose. The receipt of Secured Party for the purchase money paid at any such sale made by it shall be a sufficient discharge therefor to any purchaser of the Collateral or any portion thereof, and no such purchaser, after paying such purchase money and receiving such receipt, shall be bound to see to the date application of such Rent purchase money or any part thereof or in any manner whatsoever be answerable for any loss, misapplication or non-application of any such purchase money, or any part thereof, or be bound to inquire as to the authorization, necessity, expediency or regularity of any such sale. Secured Party shall have the right to enter and/or remain upon the premises of Debtor without any obligation to pay rent to Debtor or others, or any other sums place or places where any of the Collateral is due located and kept and: (with no notice being required i) remove Collateral therefrom to the premises of Landlord); hereinafter referred Secured Party or any agent of Secured Party, for such time as Secured Party may desire, in order to as a "Monetary Default:;
maintain, collect, sell and/or liquidate the Collateral, or (ii) Tenant use such premises, together with materials, supplies, books and records of Debtor, to maintain possession and/or the condition of the Collateral, and to prepare the Collateral for selling, liquidating or collection. Secured Party may require Debtor to assemble the Collateral and make it available to Secured Party at a place to be designated by Secured Party which is reasonable convenient to both parties. Debtor shall fail be liable for reasonable attorneys' fees and legal expenses incurred by Secured Party in enforcing any of its rights or remedies hereunder and, without limiting the rights of Secured Party, the proceeds of disposition of the Collateral may be applied, in Secured Party's discretion, to comply payment of such reasonable attorneys' fees and legal expenses.
(D) The proceeds of any sale of all or any part of the Collateral shall be applied in the following order or priorities: FIRST, to the payment of all costs and expenses of such sale, including, without limitation, reasonable compensation to Secured Party, its agents and attorneys, and all other expenses, liabilities and advances incurred or made by Secured Party, its agents and attorneys, in connection with such sale, and any other Non-Monetary provision unreimbursed expenses for which Secured Party may be reimbursed pursuant hereto; SECOND, to the payment of this Lease the Loans in such priority as Secured Party shall choose with no amounts applied to payment of principal until all interest has been paid; THIRD, to the payment or satisfaction of any other agreement between Landlord Obligations; and TenantSecurity Agreement dated April 30, if applicable2001 Page 10 of 14 -------------------------------------------------------------------------------- FOURTH, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; howeverthe payment to Debtor, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting its successors or assigns, or to cure such Default, Landlord shall grant such additional reasonable time as whomsoever may be necessary lawfully entitled to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on receive the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting tosame, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's propertymay direct, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received surplus then remaining from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedyproceeds.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Security Agreement (Dyna Cam)
Events of Default Remedies. a) The If any of the following events (“Events of Default”) shall be deemed occur (x) after the Closing Date as to be events of default by Tenant under this Leasethe Term A Facility or Revolving Facility and (y) after the Escrow Release Date as to the Term B Facility:
(ia) Tenant any Borrower shall fail to pay any Rent principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise; or any Borrower shall fail to pay any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable, and such failure with respect to such reimbursement obligations shall continue unremedied for a period of five (5) Business Days;
(b) any Borrower shall fail to pay any interest on any Loan or any fee or any other sums amount (other than an amount referred to in clause (a) of money this Section 8.01) payable under this Agreement or any other Loan Document, when and as the same shall become due hereunder and payable, and such failure shall continue unremedied for a period of ten five (105) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:Business Days;
(iic) Tenant any representation, warranty or certification made or deemed made by or on behalf of any Borrower or any Restricted Subsidiary herein or in any Loan Document, or in any report, certificate, financial statement or other document required to be delivered pursuant hereto or thereto, shall prove to have been materially inaccurate when made or deemed made;
(d) any Loan Party shall fail to comply observe or perform any covenant, condition or agreement applicable at such time contained in Section 5.02(a), Section 5.03(a) (with respect to any other Non-Monetary provision Borrower), Section 5.12 or in Article VI or in Article VII of this Lease Agreement; provided any default under Section 7.01 (a “Financial Covenant Event of Default”) shall not constitute an Event of Default with respect to any Loans or Commitments hereunder, other than the Revolving Loans, Term A Loans, Revolving Commitments and/or Term A Commitments, until the date on which any Revolving Loans or Term A Loans have been accelerated, and the Revolving Commitments or Term A Commitments have been terminated, in each case, by the Required TLA Lenders or Required Revolving Lenders, as applicable;
(e) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other agreement between Landlord than those specified in clause (a), (b) or (d) of this Section 8.01), and Tenant, if applicable, after Landlord has provided such failure shall continue unremedied for a period of thirty (30) days prior after written notice of such Non-Monetary Default and Tenant has failed thereof from the Administrative Agent to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultthe Parent;
(f) any Borrower or any Restricted Subsidiary (other than an Immaterial Subsidiary) shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness (other than the Obligations), when and as the same shall become due and payable beyond any applicable grace period or any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits, after giving effect to any applicable grace period, the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided, that from and after the Merger Date, any default under the Coty Facilities as a result of the failure to perform or observe any term, covenant or agreement contained under any financial covenant thereunder shall not constitute an Event of Default for purposes of any Term B Loans unless and until the applicable lenders thereunder have declared all such obligations under the applicable Coty Facilities to be immediately due and payable in accordance with the Coty Facilities and terminated the commitments thereunder; provided, further, that this clause (f) shall not apply to (i) secured Indebtedness that becomes due as a result of the Disposition (including as a result of a casualty or condemnation event) of the property or assets securing such Indebtedness, (ii) Guarantees of Indebtedness that are satisfied promptly on demand or (iii) The leasehold hereunder demised shall be taken on execution with respect to Indebtedness incurred under any Swap Agreement, termination events or other process equivalent events pursuant to the terms of law in the relevant Swap Agreement which are not the result of any action against Tenantdefault thereunder by any Loan Party or any Restricted Subsidiary; provided, further, that such failure is unremedied and is not waived by the holders of such Material Indebtedness prior to any termination of Commitments or acceleration of the Loans pursuant to this Section 8.01;
(ivg) Tenant an involuntary proceeding, corporate action, legal proceeding or other procedure or step shall fail to promptly move intobe commenced or an involuntary petition shall be filed seeking (i) liquidation, take possession reorganization, bankruptcy, administration, winding up, deregistration or other relief in respect of and operate any Borrower or any Restricted Subsidiary (other than an Immaterial Subsidiary) or its business on debts, or of a substantial part of its assets, under any Federal, state or other applicable bankruptcy, insolvency, receivership, arrangement or similar law now or hereafter in effect or (ii) a distress, attachment, execution or the Premises when the Premises are ready appointment of a receiver, trustee, liquidator, custodian, administrative recovery compulsory manager, sequestrator, conservator or similar official for occupancy any Borrower or any Restricted Subsidiary (other than an Immaterial Subsidiary) or for a substantial part of its assets, and, in any such case, such proceeding or petition shall cease to do business in continue undismissed, undischarged or vacate unbonded for sixty (60) consecutive days or abandon an order or decree approving or ordering any substantial portion of the Premises for more than ten (10) consecutive daysforegoing shall be entered;
(h) any Borrower or any Restricted Subsidiary (other than an Immaterial Subsidiary) shall (i) voluntarily commence any proceeding, corporate action, legal proceeding or other procedure or step or file any petition seeking liquidation (other than a solvent liquidation permitted by Section 6.03), reorganization, bankruptcy, administration, winding up, deregistration, suspension of payments or other relief under any Federal, state or other applicable bankruptcy, insolvency, receivership, arrangement or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (g) of this Section 8.01, (iii) apply for or consent to the appointment of a receiver, trustee, liquidator, custodian, administrative recovery compulsory manager, sequestrator, conservator, administrator or similar official for any Borrower or any such Restricted Subsidiary (other than an Immaterial Subsidiary) or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, or (v) Tenant make a general assignment for the benefit of creditors;
(i) any Borrower or any Restricted Subsidiary (other than an Immaterial Subsidiary) shall become insolvent unable, admit in writing its inability or unable fail generally to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vij) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more judgments for the payment of money in an aggregate amount in excess of the following remedies:Threshold Amount (to the extent not covered by insurance as to which the insurer has not denied coverage) shall be rendered against any Borrower, any Restricted Subsidiary or any combination thereof (to the extent not paid in full within any applicable period for payment) and there is a period of sixty (60) consecutive days during which a stay of enforcement of such judgment by reason of a pending appeal, payment or otherwise is not in effect;
(k) an ERISA Event shall have occurred if such ERISA Event could reasonably be expected to result in a Material Adverse Effect;
(l) other than with respect to items of Collateral not exceeding $40,000,000 in the aggregate, any Lien purported to be created under any Security Document shall cease to be, or shall be asserted in writing by any Loan Party not to be, a valid and perfected Lien on any Collateral, except (i) Landlord shall have to the right, at its election, extent that perfection or priority is not required pursuant to cancel the Collateral and terminate this Lease and dispossess Tenant by summary proceedings Guarantee Requirement or other lawful means;
the Security Agreement or (ii) Landlord shall have in connection with a release of such Collateral in accordance with the right to declare all amounts and rents due under terms of this Lease for the remainder of the existing term (and any applicable extension Agreement or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach Collateral Agent’s failure to (A) maintain possession of any promise stock certificates, promissory notes or inducement hereofother instruments delivered to it under the Security Documents or (B) file Uniform Commercial Code continuation statements or (iv) if such loss of an enforceable or perfected security interest, whether as applicable, may be remedied by the filing of appropriate documentation without the loss of priority;
(m) any material provision of this Agreement or any other Loan Document shall for any reason cease to be in this Lease full force and effect except as expressly permitted hereunder or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach thereunder, or any Borrower or any other Loan Party shall so state in writing, in each case, other than in connection with a release of any promise Guarantee in accordance with the terms of this Agreement; or
(n) a Change in Control shall occur; then, and in every such event (other than an event with respect to any Borrower described in clause (g) or inducement (h) of this Section 8.01), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior notice to the exercise Parent, take either or both of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans then outstanding so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of any such remediesBorrower accrued hereunder, it will give shall become due and payable immediately, without presentment, demand, protest, notice of intent to accelerate, notice of acceleration or other notice of any kind, all of which are hereby waived by each Borrower; and in case of any event with respect to any Borrower described in clause (g) or (h) of this Section 8.01, the mortgagees on Commitments shall automatically terminate and the Property written principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of any Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest, notice of intent to accelerate, notice of acceleration or other notice of any kind, all of which are hereby waived by each Borrower. In addition, if any Event of Default shall occur and a reasonable period be continuing, the Administrative Agent may (and if directed by the Required Lenders, shall) foreclose or otherwise enforce any Lien granted to the Administrative Agent, for the benefit of time the Secured Parties, to secure payment and performance of the Obligations in which to cure accordance with the terms of the Loan Documents and exercise any alleged defaultand all rights and remedies afforded by applicable Law, by any of the Loan Documents, by equity, or otherwise. Notwithstanding anything to the contrary contained hereinforegoing, nothing during any period during which solely a Financial Covenant Event of Default has occurred and is continuing, the Administrative Agent may with the consent of, and shall prevent Tenant from maintaining at the request of, the Required TLA Lenders or asserting Required Revolving Lenders take any of the foregoing remedies actions described in the immediately preceding paragraph solely as they relate to the Revolving Lenders or Term A Lenders (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause versus the Lenders), the Revolving Commitments and Term A Commitments (versus the Commitments), the Revolving Loans, the Swingline Loans and the Term A Loans (versus the Loans), and the Letters of action versus LandlordCredit.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Credit Agreement (Galleria Co.)
Events of Default Remedies. (a) The Any of the following events shall be deemed to be events of constitute a default by Tenant under this Lease:
hereunder: (i) Tenant shall fail the failure by Maker to pay when due the Principal Balance of this Note; (ii) the failure to pay when due any Rent interest on this Note; (iii) the failure by Maker to perform any of its obligations with respect to this Note and Security Agreement; or (iv) the Maker sells and/or pledges the Shares and/or any interest or right to said Shares and/or permits any lien or other sums encumbrance of money due hereunder any kind to attach to the Shares. Whenever there is a default under this Note, and such failure shall continue for a period of default is not cured within ten (10) days after receipt by Maker of a written notice advising of same, the date such Rent Payee, or other sums is holder of this Note (the "Holder"), may at its option declare the amounts due under this Note immediately due and payable and exercise any and all rights and remedies available to it hereunder or under applicable law. If at any time prior to maturity Maker defaults hereunder, (with no notice being required i) Payee shall have the right to retain all or a portion of Landlord); hereinafter referred the Shares for its own account, in which case Maker's debt represented by the Principal Balance related to as a "Monetary Default:;
those Shares which were retained shall be discharged in total and (ii) Tenant Maker waives any right to have Payee sell any of the Shares.
(b) Maker shall fail have a one time right to comply with any other Non-Monetary provision "put" all of the Shares to Payee in exchange for cancellation of this Lease Note prior to maturity. In the event of voluntary or any other agreement between Landlord and Tenantinvoluntary termination of Maker's employment, if applicablewhether for "just cause" or without "just cause" as defined in the Employment Agreement, after Landlord has provided thirty Maker shall pay the Principal Balance (30plus accrued interest) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days of the date of termination. The "put" right in the preceding paragraph shall cease on the 30th day after termination. In the event of death or disability of Maker, Maker or its respective successors and if Tenant is diligently attempting to cure such Default, Landlord assigns shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety pay the Principal Balance (90plus accrued interest) within one hundred eighty (180) days to cure a Non-Monetary default;
(iii) of the date of death or disability. The leasehold hereunder demised "put" right in the second preceding paragraph shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business cease on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days 180th day after the receipt by Landlord date of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiverdeath or disability.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. If any of the following events shall occur and be continuing:
(a) The following events shall be deemed to be events of default by Tenant under this Lease:
(i) Tenant Borrowers shall fail to pay any Rent principal of or interest on the Note when due in accordance with the terms thereof or hereof or the Borrowers shall fail to pay any other sums amount payable hereunder or under the other Loan Documents within five (5) Business Days after any such other amount becomes due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the Borrowers or the Guarantor herein or in any other Loan Document or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with this Agreement shall prove to have been incorrect in any material respect on or as of money due hereunder the date made or deemed made; or
(c) The Borrowers or the Guarantor shall default in the observance or performance of any agreement or requirement contained in Article 5, and such failure default shall continue unremedied for a period of ten twenty (1020) days after the date such Rent or other sums is due (with no notice being required of Landlord)days; hereinafter referred to as a "Monetary Default:;or
(iid) Tenant The Borrowers or the Guarantor shall fail to comply with default in the observance or performance of any agreement or requirement contained in Article 6; or
(e) The Borrowers or the Guarantor shall default in the observance or performance of any other Non-Monetary provision of covenant, condition or agreement contained in this Lease Agreement, the Security Agreement or any other agreement between Landlord Loan Document (other than as provided in paragraphs (a) through (d) of this Section), and Tenant, if applicable, after Landlord has provided such default shall continue unremedied for a period of thirty (30) days prior written notice days; or
(f) The Borrowers or the Guarantor shall (i) default in any payment of principal of or interest on any Indebtedness to any Person other than the Bank or in the payment of any Guarantee Obligation beyond the period of grace (not to exceed sixty (60) days), if any, provided in the instrument or agreement under which such Indebtedness or Guarantee Obligation was created, which aggregate amount is $100,000.00 or more; or (ii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or Guarantee Obligation or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such NonIndebtedness or beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or such Guarantee Obligation to become payable, which aggregate amount is $100,000.00 or more; or
(i) The Guarantor or any of the Borrowers shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-Monetary Default and Tenant has failed up, liquidation, dissolution, composition or other relief with respect to cure such Non-Monetary Default within said thirty it or its debts, or (30B) days providedseeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or (ii) the Guarantor or any of the Borrowers shall make a general assignment for the benefit of its creditors; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
or (iii) The leasehold hereunder demised there shall be taken on execution commenced against the Guarantor or any of the Borrowers any case, proceeding or other process action of law a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any action against Tenant;
such adjudication or appointment, or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iv) Tenant there shall fail to promptly move intobe commenced against the Guarantor or any of the Borrowers any case, take possession proceeding or other action seeking issuance of and operate its business on the Premises when the Premises are ready for occupancy a warrant of attachment, execution, distraint or shall cease to do business in similar process against all or vacate or abandon any substantial portion part of its assets which results in the Premises entry of an order for more than ten any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (1060) consecutive days;
days from the entry thereof; or (v) Tenant the Guarantor or any of the Borrowers shall become insolvent take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (vi) the Guarantor or any of the Borrowers shall generally not, or shall be unable to to, or shall admit in writing its inability to, pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viiii) The adjudication Any Person shall engage in any “prohibited transaction” (as defined in Section 406 of Tenant ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a bankruptorPlan shall arise on the assets of any of the Guarantor, the Borrowers or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Bank, likely to result in the termination of such Plan for purposes of Title IV of ERISA and such Reportable Event shall not have been rectified to the reasonable satisfaction of the Bank within 20 days of the occurrence of such Reportable Event, (iv) any Single Employer Plan that is not fully funded shall terminate for purposes of Title TV of ERISA, (v) the Guarantor or any of the Borrowers or any Commonly Controlled Entity shall, or in the reasonable opinion of the Bank is likely to, incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, would have a Material Adverse Effect; or
(ixi) Tenant One or more judgments or decrees shall attempt be entered against the Guarantor or any of the Borrowers involving in the aggregate a liability (not paid or fully covered by insurance) of $100,000 or more, and all such judgments or decrees shall not have been satisfied, vacated, discharged, stayed or bonded pending appeal within sixty (60) days from the entry thereof; or
(i) The Security Agreement shall cease, for any reason, to assignbe in full force and effect, transferor the Guarantor or any of the Borrowers shall so assert, sublet or (ii) the security interests created by the Security Agreement shall cease to be enforceable and of the same effect and priority purported to be created thereby;
(k) Loss by any of the Borrowers of its regulatory approval and/or licensing; or
(l) Loss by any of the Borrowers of its accreditation by an applicable accrediting agency. then, at any time thereafter during the continuance of any such event, the Bank may, without notice to the Borrowers (i) terminate the Commitment and (ii) declare the Note to be forthwith due and payable, both as to principal and interest, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the Note to the contrary notwithstanding, (iii) exercise any or all of the rights and remedies afforded to the Bank in the Security Agreement or the other Loan Documents, by the UCC or otherwise possessed by the Bank and realize upon, dispose of, or sell, all or any part of its interests the Collateral given by the Guarantor and the Borrowers to the Bank, and the Bank may apply the net proceeds of such realization, disposal or sale to the payment of any liabilities of the Borrowers under the Note or this Agreement in the Premises or order set forth in this Lease without Landlord's prior written consent subject the Security Agreement, provided, however that if an event specified in subsection (g) shall have occurred, the Loans shall automatically accelerate and the Commitment shall automatically terminate. In addition to and not in limitation of all rights of offset that the provisions of Section 19 above.
b) Upon Bank may have under applicable law, the Bank shall, upon the occurrence of any event Event of Default and whether or events of default not the Bank has made any demand or other breach of this Lease by Tenantthe Obligations are matured, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts appropriate and rents due under this Lease for apply to the remainder payment of the existing term Obligations, all deposits (and any applicable extension general or renewal thereofspecial, time or demand, provisional or final) to be immediately due and payable, and thereupon all rents of the Guarantor or the Borrowers then or thereafter held by the Bank and other charges due hereunder indebtedness or property then or thereafter owing to the end of Guarantor or the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for Borrowers by the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereofBank, whether in or not related to this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (Agreement or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordtransaction hereunder.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a) The following events An “event of default” hereunder shall happen if an Event of Default shall have occurred and be deemed to be events continuing under the Credit Agreement [or any Bank Product Agreement]. If an event of default shall happen, then the security constituted by Tenant this Mortgage shall become immediately enforceable and that without limitation, the enforcement remedies specified can be exercised irrespective of whether or not the Mortgagee has exercised the right of acceleration under this Leasethe Credit Agreement and the Mortgagee shall have the right to:
(i) Tenant Declare all the then unpaid Secured Obligations to be due and payable immediately, and upon such declaration, the same shall fail to pay any Rent become and be immediately due and payable; provided, however, that no declaration shall be required if an event of default shall have occurred by reason of a default under Section 8.01(g) or any other sums (h) of money due hereunder the Credit Agreement, then and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;in
(ii) Tenant shall fail Exercise all of the rights and remedies in foreclosure and otherwise given to comply with a mortgagee by the provisions of the laws of the Republic of the Xxxxxxxx Islands or of any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as jurisdiction where the Vessel may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultfound;
(iii) The leasehold hereunder demised shall Bring suit at law, in equity or in admiralty, as it may be taken on execution advised, to recover judgment for the Secured Obligations, and collect the same out of any and all property of the Shipowner whether covered by this Mortgage or other process of law in any action against Tenantotherwise;
(iv) Tenant shall fail to promptly move into, take Take and enter into possession of the Vessel, at any time, wherever the same may be, without legal process and operate its business on without being responsible for loss or damage and the Premises when the Premises are ready for occupancy Shipowner or shall cease to do business other person in or vacate or abandon any substantial portion possession forthwith upon demand of the Premises Mortgagee shall surrender to the Mortgagee possession of the Vessel and at the request of the Mortgagee, the Shipowner shall convey any request or instructions of the Mortgagee to the Vessel’s officers and other senior personnel to remain on board to operate the Vessel for more than a reasonable period of time;
(v) Without being responsible for loss or damage, the Mortgagee may hold, lay up, lease, charter, operate or otherwise use the Vessel for such time and upon such terms as it may deem to be for its best advantage, and demand, collect and retain all hire, freights, earnings, issues, revenues, income, profits, return premiums, salvage awards or recoveries, recoveries in general average, and all other sums due or to become due in respect of such Vessel or in respect of any insurance thereon from any person whomsoever, accounting only for the net profits, if any, arising from such use of the Vessel and charging upon all receipts from the use of the Vessel or from the sale thereof by court proceedings or pursuant to subsection (vi) next following, all costs, expenses, charges, damages or losses by reason of such use; and if at any time the Mortgagee shall avail itself of the right herein given it to take the Vessel, the Mortgagee shall have the right to dock the Vessel, for a reasonable time at any dock, pier or other premises of the Shipowner without charge, or to dock her at any other place at the cost and expense of the Shipowner;
(vi) Without being responsible for loss or damage, the Mortgagee may sell the Vessel upon such terms and conditions as the Mortgagee shall deem best, free from any claim of or by the Shipowner, at public or private sale, by sealed bids or otherwise, by delivering notice of such sale, whether public or private, addressed to the Shipowner at its last known address and to any other record mortgagee, twenty (20) calendar days prior to the date fixed for entering into the contract of sale and by first publishing notice of any such public sale for ten (10) consecutive days;
(v) Tenant , in daily newspapers of general circulation published in the City of New York, State of New York; in the event that the Vessel shall become insolvent be offered for sale by private sale, no newspaper publication of notice shall be required, nor notice of adjournment of sale; sale may be held at such place and at such time as the Mortgagee by notice may have specified, or unable may be adjourned by the Mortgagee from time to pay its debts as they become due, Tenant files a petition in bankruptcy time by announcement at the time and place appointed for such sale or for reorganization under such adjourned sale, and without further notice or publication the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting Mortgagee may make any such sale at the relief afforded by time and place to which the bankruptcy laws;
(vi) Tenant makes an assignment for same shall be so adjourned; and any sale may be conducted without bringing the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents Vessel to the appointment of a receiver or custodian place designated for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition such sale and in bankruptcy or for reorganization under such manner as the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) Mortgagee may deem to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable lawits best advantage, and the unenforceability of Mortgagee may become the purchaser at any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereofsale. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby The Shipowner agrees that Tenant's remedies for default hereunder and for breach any sale made in accordance with the terms of any promise or inducement by Landlord this paragraph shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) deemed made in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant commercially reasonable manner insofar as it is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordconcerned.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. (a) The Any one or more of the following events occurrences or acts shall be deemed to be events constitute an Event of default by Tenant Default under this Lease:
(i) If Tenant shall fail to pay any Additional Rent or any other sums of money due hereunder and such failure shall continue continues for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior after notice thereof to Tenant.
(ii) If Tenant fails to perform or comply with any of the other terms, covenants or conditions contained in this Lease and such failure continues for a period of ninety (90) days after written notice thereof to (A) Tenant, (B) the Subtenant (the breach or non- performance under whose Sublease has given rise to such default), (C) the Leasehold Mortgagee of such Non-Monetary Default Sublease and Tenant (D) the NCMC Hospital Leasehold Mortgagee, and Tenant, such Subtenant, such Leasehold Mortgagee or the NCMC Leasehold Mortgagee has failed to cure such Non-Monetary Default default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days day period; provided, however, that in the case of a default which Tenant, such Subtenant, such Leasehold Mortgagee or the NCMC Hospital Leasehold Mortgagee is able to remedy with reasonable diligence, but not with a period of ninety (90) days, if Tenant, such Subtenant, such Leasehold Mortgagee or the NCMC Hospital Leasehold Mortgagee commences within such ninety (90) day period to remedy the default and thereafter prosecutes the remedying of such default with reasonable diligence, Tenant shall have such additional period of time as is reasonably necessary to cure a Non-Monetary default;so long as it is pursing the cure diligently.
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, If Tenant files a petition in of bankruptcy or for reorganization under or for an arrangement pursuant to the bankruptcy laws or an admission, answer or other responsive pleading consenting toBankruptcy Code, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant is adjudicated a bankrupt or becomes insolvent or makes an assignment for the benefit of its creditors, within the meaning or admits in writing its inability to pay its debts generally as they become due, or is dissolved, or suspends payment of its obligations, or takes any corporate action in furtherance of any of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiverforegoing.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxxiv) Xxx filing against Tenant of If a petition in bankruptcy or for reorganization under the bankruptcy laws, answer is filed proposing the adjudication of Tenant as a bankrupt, or its reorganization pursuant to the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's propertyBankruptcy Code, and within thirty (30A) days thereafter Tenant consents to the filing thereof, or (B) such filing petition or answer is not dismissed, discharged or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder denied within thirty (30) days after the receipt by Landlord filing thereof.
(v) If a receiver, trustee or liquidator (or other similar official) is appointed for or takes possession or charge of written notice from Tenant, or Tenant’s estate or interest in the Project Area, and is not discharged within thirty (30) days thereafter, or if Tenant of consents to or acquiesces in such appointment.
(vi) If Tenant abandons the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 Project Area for more than ninety (Tenant90) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord days other than as a result of Landlord's a Force Majeure event.
(vii) If at any time before the Financial Closing an event of default as to any covenant exists under the Grant Agreement or agreement contained in this Lease the Development Agreement, which has not been cured or as a result of waived by the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remediesDistrict, it will give being expressly understood that if an event of default exists under the mortgagees Grant Agreement or the Development Agreement at any time on or after the Property written notice and a reasonable period Financial Closing, it shall not constitute an Event of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus LandlordDefault hereunder.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Lease Agreement
Events of Default Remedies. a) The following events shall be deemed to be events of default by Tenant under this Lease:
(i) Tenant shall fail to pay when due any Rent or any other sums installment of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord)rent hereby reserved; hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary term, provision or covenant of this Lease or any Lease, other agreement between Landlord than the payment of rent, and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to shall not cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured failure within thirty (30) days and if Tenant is diligently attempting after written notice thereof to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
Tenant; (iii) The the leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
; (iv) Tenant shall fail to promptly move into, into and take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
Premises; (v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting tobecomes insolvent, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or admits in writing its inability to pay its debts as they become due; (vi) Tenant consents to the appointment of a receiver or custodian for all or a substantial part of is not paying its propertydebts as such debts become due; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxxvii) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, trustee or custodian is appointed for, or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of takes possession of, all or substantially all of Tenant's propertythe assets of Tenant or any of the Premises, either in a proceeding brought by Tenant or in a proceeding brought against Tenant and such appointment is not discharged or such possession is not terminated within thirty (30) days thereafter after the effective date thereof or Tenant consents to or acquiesces in such filing appointment or possession; (viii) Tenant files a petition for relief under the Federal Bankruptcy Code, as amended, or any other present or future federal or state insolvency, bankruptcy or similar law (all of the foregoing hereinafter collectively called “applicable Bankruptcy Law”) or an involuntary petition for relief is filed against Tenant under any applicable Bankruptcy Law and such petition is not dismisseddismissed within thirty (30) days after the filing thereof, or such court an order for relief naming Tenant is not vacated or such assumption or sequestration is not releasedentered under any applicable Bankruptcy Law, or if any composition, rearrangement, extension, reorganization or other relief of debtors now or hereafter existing is requested or consented to by Tenant; or (ix) any of the Tenant does not bond off events referred to in subheadings (v), (vi), (vii), and (viii) shall occur with respect to any guarantor (hereinafter called “Guarantor”) of the risk to Landlord to Landlord's reasonable satisfaction, which payment or performance of any Tenant’s obligations hereunder and shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests remedied within the time set forth in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 abovesuch subheadings.
b) Upon the occurrence of any If an event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or notshall have occurred, Landlord shall have the option right at its election, then or at any time thereafter while such event of default shall continue and without any further notice or demand of any kind or nature to pursue Tenant or to any other party liable hereunder, to pursue, in addition to any other rights or remedies provided for elsewhere in this Lease or otherwise available to Landlord at law or in equity, any one or more of the following remedies:
(i) Terminate this Lease by giving notice thereof to Tenant, in which event Tenant shall immediately surrender the Premises 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 Tenant and any other person who may be occupying said Premises, or any part thereof, by force, if necessary, without being liable for prosecution or any claim of damages therefore and Tenant hereby agrees to pay to Landlord on demand the amount of all loss and damage which Landlord may suffer by reason of such termination, whether through inability to relet the Premises on satisfactory terms or otherwise, specifically including, but not limited to (1) all reasonable expenses necessary to relet the Premises, which shall have include, without limitation, the rightcost of renovating, at its electionrepairing and altering the Premises for a new tenant or tenants, advertisements and brokerage fees and (2) any increase in insurance premiums caused by the vacancy of the Premises. If such termination is caused by the failure to pay rent and/or the abandonment of any substantial portion of the Premises, Landlord may elect, by sending written notice thereof to Tenant, to cancel and terminate receive liquidated damages in an amount equal to the rental payable hereunder for the month during which this Lease is terminated times twelve (12), which shall be in lieu of the payment of loss and dispossess damage Landlord may suffer by reason of such termination as provided in the preceding sentence but which shall not be in lieu of or reduce in any way amount (including accrued rent) or damages due to breach of covenant (whether or not liquidated) payable by Tenant to Landlord with accrued prior to the termination of this Lease. Nothing contained in this Lease shall limit or prejudice the right of Landlord to prove for and obtain in proceedings for bankruptcy or insolvency by summary reason of the termination of this Lease an amount equal to the maximum allowed by any statute or rule of law in effect at the time when and governing the proceedings in which the damages are to be proved, whether or other lawful means;not the amount be greater, equal to, or less than the amount of the loss or damages referred, to above.
(ii) Enter upon and take possession of the Premises and expel or remove Tenant or any other person who may be occupying said Premises, or any part thereof, by force, if necessary, without having any civil or criminal liability therefore and without terminating this Lease, Landlord may (but shall be under no obligation to) relet the Premises or any part thereof for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the term of this Lease) and on such conditions (which may include concessions or free rent) and for such uses as Landlord in its sole and absolute discretion may determine and Landlord may collect and receive any rents payable by reason of such reletting; and Tenant agrees to pay Landlord on demand all reasonable expenses necessary to relet the Premises and shall include, without limitation, the cost of renovating, repairing and altering the Premises for a new tenant or tenants, advertisements and brokerage fees, and Tenant further agrees to pay Landlord on demand any deficiency that may arise by reason of such reletting. Landlord shall have not be responsible or liable for any failure lo relet the right Premises or any part thereof or for any failure to declare all amounts and rents collect any rent due under upon any such reletting. No such re-entry or taking of possession or reletting of the Premises by Landlord shall be construed as an election on Landlord’s part to terminate this Lease for the remainder unless a written notice of the existing term such termination is given to Tenant pursuant to subparagraph (and any applicable extension or renewal thereofb) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent(i) above.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter Enter upon the Premises Premises, by force if necessary, without having any civil or criminal liability therefore, and do whatever Tenant is obligated to do under the terms of this Lease (and Tenant agrees to reimburse Land- lord Landlord on demand for any expenses which Landlord may incur in thus effecting compliance with Tenant's ’s obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action), whether caused by the negligence of Landlord or otherwise.
(iv) Elect to treat such event of default as an entire breach of this Lease, whereupon Tenant will immediately become liable to Landlord, as damages for such entire breach, for an amount equal to the total of (1) all unpaid rent and other sums then due to Landlord hereunder, including a penalty fee in the amount equal to five percent (5%) of the unpaid rent and other sums then due, (2) the present value [discounted at the rate of eight percent (8%) per annum] of the balance of the rent and any other sums becoming due hereunder for the remainder of the Lease Term reduced by the reasonable cash market value of the Lease for such period and (3) any other sums of money or damages owed by Tenant to Landlord or to which Landlord is entitled hereunder and/or otherwise at law or in equity.
c) No repossession of or re-entering on the Premises or any part thereof pursuant to subparagraphs (b) (ii) and (iii) above or otherwise and no reletting of the Premises or any part thereof pursuant to subparagraph (b) (ii) shall relieve Tenant or any Guarantor of its liabilities and obligations hereunder, all of which shall survive such repossession or reentering. All In the event of any such remedies repossession or reentering on the Premises or any part thereof by reason of Land- lord the occurrence of an event of default, Tenant will pay to Landlord the rent required to be paid by Tenant. Landlord shall have the right to collect from Tenant the rent as it becomes due to suits or proceedings brought from time to time on one or more occasions without Landlord being obligated to wait until the expiration of the Lease Term. Landlord shall have the right to allow rent to accumulate and to bring an action on several or all of the accrued sums at one time. Any such suit shall not prejudice in any way the right of Landlord to bring a similar action for any subsequent sum becoming due hereunder; and no delivery or recovery of any portion due Landlord hereunder shall be any defense in any action to recover any amount not theretofore reduced to judgment in favor of Landlord. Notwithstanding any repossession of or re-entering on the Premises or any part thereof pursuant to subparagraph (b) (ii) and (iii) above or otherwise without terminating this Lease, Landlord may at any time thereafter elect to terminate this Lease and recover from Tenant such sums and damages to which Landlord is then entitled.
d) No right or remedy herein conferred upon or reserved to landlord is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and not exclusive, and in addition, Landlord may pursue addition to any other remedies that may be permitted by right or remedy given hereunder or now or hereafter existing at law or in equityequity or by statute. Forbearance by Landlord In addition to enforce one or more of the other remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants thatentitled, prior to the exercise extent permitted by applicable law, to injunctive relief in ease of any such remediesthe violation, it will give the mortgagees on the Property written notice and a reasonable period or attempted or threatened violation of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (covenants, agreements, conditions or provisions of this Lease, or to a decree compelling performance of any of the covenant, agreements, conditions or provisions of this Lease, or to any other remedy) remedy allowed to Landlord at law or in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordequity.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. (a) The occurrence of any one or more of the following events shall be deemed to be events constitute an “Event of default by Tenant under this LeaseDefault” hereunder:
(i) Tenant shall fail Borrower’s failure to pay any Rent or amount payable under either of the Notes in accordance with the terms thereof; provided, however, that Borrower shall have three (3) business days in which to cure any other sums failure to pay interest due under any of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:Notes;
(ii) Tenant shall fail Borrower’s failure to comply issue any Common Stock issuable under any of the Convertible Notes in accordance with any other Non-Monetary provision the terms thereof upon Lender’s exercise of this Lease or any other agreement between Landlord and Tenantthe Conversion Right, if applicable, after Landlord has provided thirty (30) days prior written notice of as defined in such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultConvertible Note;
(iii) The leasehold hereunder demised shall be taken on execution or other process Borrower’s breach of law any representation and warranty made to Lender in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for Transaction Documents or Borrower’s breach of any covenant under any of the Transaction Documents which is not cured within ten (10) business days of the earlier of Borrower learning of such breach or of notice thereof from Lender; provided, however, that if the cure will take more than ten (10) consecutive daysbusiness days and Borrower is diligently pursuing such cure during such ten (10) business day period, then an Event of Default shall not occur with respect to such breach if it is cured within twenty (20) business days of the earlier of an officer of Borrower learning of such breach or receipt by Borrower of notice thereof from Lender;
(viv) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or Borrower (A) has an order for reorganization relief entered against it under the bankruptcy laws or an admissionfederal Bankruptcy Code, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(viB) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws (C) applies for or Tenant consents to seeks the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian liquidator, assignee, trustee or trustee other similar official for all it or a of any substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's propertyany such official is appointed, other than upon Borrower’s request, and within such unrequested appointment continues for sixty (60) days, (D) institutes proceedings seeking an order for relief under the federal Bankruptcy Code or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or any of its debts under other applicable federal or state law relating to creditor rights and remedies, or any such proceeding is filed against it, other than upon Borrower’s request, and such unrequested proceeding continues undismissed or unstayed for thirty (30) days thereafter such filing is not dismisseddays, or (E) takes corporate action in furtherance of any of the foregoing actions;
(v) the occurrence and continuance of any default under any lease or agreement for borrowed money having an outstanding principal amount in excess of $100,000 that gives the lessor or the creditor of such court order is not vacated indebtedness, as applicable, the right to accelerate the lease payments or such assumption or sequestration is not releasedthe indebtedness, as applicable, or if the Tenant does not bond off right to exercise any rights or remedies with respect to any of the risk to Landlord to Landlord's reasonable satisfaction, Collateral;
(vi) the entry of any judgment or order against Borrower which shall not be unreasonably deniedremains unsatisfied or undischarged and in effect for forty-five (45) days after such entry without a stay of enforcement or execution;
(vii) the occurrence of a Change of Control; or
(viii) The adjudication any material portion of Tenant as Borrower’s assets is attached, seized, subjected to a bankruptor; orwrit or distress warrant, or is levied upon, or comes into the possession of any trustee, receiver or person acting in a similar capacity and such attachment, seizure, writ or distress warrant or levy has not been removed, discharged or rescinded within ten (10) business days, or Borrower is enjoined, restrained, or in any way prevented by court order from continuing to conduct all or any material part of its business affairs.
(ixb) Tenant Upon the occurrence and during the continuance of any Event of Default, Lender, may at any time, do any of the following:
(i) accelerate the payment of the amounts owing under the Notes;
(ii) enforce the Notes by exercise of the rights and remedies under this Agreement or granted to Lender by applicable law; and
(iii) exercise, in addition to all other rights and remedies granted in this Agreement, all rights and remedies of a secured party under the UCC and other applicable laws.
(c) Without limiting the generality of the foregoing provisions in Section 5(b), Lender shall attempt have the right to assign, transfer, sublet sell or otherwise dispose of all or any part of its interests the Collateral, either at public or private sale, in the Premises lots or in this Lease bulk, for cash or for credit, with or without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event warranties or events of default or other breach of this Lease by Tenantrepresentations, whether enumerated and upon such terms and conditions, all as Lender, in this Paragraph or notits sole discretion, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the rightmay deem advisable, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord it shall have the right to declare purchase at any such sale. Borrower agrees that a notice sent at least fifteen (15) days before the time of any intended public sale or of the time after which any private sale or other disposition of the Collateral is to be made shall be reasonable notice of such sale or other disposition. The proceeds of any such sale or other Collateral disposition shall be applied, first to the expenses of retaking, holding, storing, processing and preparing for sale, selling, and the like, and to Lender’s reasonable and documented attorneys’ fees and legal expenses, and then to the Obligations and to the payment of any other amounts required by applicable law, after which Lender shall account to Borrower for any surplus proceeds. If, upon the sale or other disposition of the Collateral, the proceeds thereof are insufficient to pay all amounts and rents due under this Lease to which Lender is legally entitled, Borrower shall be liable for the remainder deficiency, together with interest thereon at the default rate specified in the Notes, and the reasonable and documented fees of any attorneys Lender employs to collect such deficiency; provided, however, that the foregoing shall not be deemed to require Lender to resort to or initiate proceedings against the Collateral prior to the collection of any such deficiency from Borrower. To the extent permitted by applicable law, Borrower waives all claims, damages and demands against Lender arising out of the existing term (and any applicable extension retention or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end sale or lease of the initial term Collateral or other exercise of Lender’s rights and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rentremedies with respect thereto.
(iiid) Landlord may elect to enter and repossess To the Premises and relet the Premises for Tenant's accountextent permitted by law, holding Tenant liable in damages for all expenses incurred Borrower covenants that it will not at any time insist upon or plead, or in any manner whatever claim or take any benefit or advantage of, any stay or extension law now or at any time hereafter in force, nor claim, take or insist upon any benefit or advantage of or from any law now or hereafter in force providing for the valuation or appraisal of the Collateral or any part thereof, prior to any sale or sales thereof to be made pursuant to any provision herein contained, or the decree, judgment or order of any court of competent jurisdiction; or, after such reletting sale or sales, claim or exercise any right under any statute now or hereafter made or enacted by any state or otherwise to redeem the property so sold or any part thereof, and, to the full extent legally permitted, hereby expressly waives all benefit and advantage of any such law or laws, and covenants that it will not invoke or utilize any such law or laws or otherwise hinder, delay or impede the execution of any power herein granted and delegated to Lender, but will suffer and permit the execution of every such power as though no such power, law or laws had been made or enacted.
(e) Any sale, whether under any power of sale hereby given or by virtue of judicial proceedings, shall operate to divest all Borrower’s right, title, interest, claim and demand whatsoever, either at law or in equity, in and to the Collateral sold, and shall be a perpetual bar, both at law and in equity, against Borrower, its successors and assigns, and against all persons and entities claiming the Collateral sold or any part thereof under, by or through Borrower, its successors or assigns.
(f) Borrower appoints Lender, and any officer, employee or agent of Lender, with full power of substitution, as Borrower’s true and lawful attorney-in-fact, effective as of the date hereof, with power, in its own name or in the name of Borrower, during the continuance of an Event of Default, to endorse any notes, checks, drafts, money orders, or other instruments of payment in respect of the Collateral that may come into Lender’s possession, to sign and endorse any drafts against debtors, assignments, verifications and notices in connection with accounts, and other documents relating to Collateral; to pay or discharge taxes or Liens at any time levied or placed on or threatened against the Collateral; to demand, collect, issue receipt for, compromise, settle and xxx for monies due in respect of the Collateral; to notify parties obligated with respect to the Collateral to make payments directly to Lender; and, generally, to do, at Lender’s option and at Borrower’s expense, at any difference between time, or from time to time, all acts and things which Lender deems necessary to protect, preserve and realize upon the amount of rent received from such reletting Collateral and Lender’s security interest therein to effect the rent due and payable under the term intent of this LeaseAgreement, all as fully and effectually as Borrower might or could do; andprovided that Lender provides Borrower with prompt notice of such actions having been taken and Borrower hereby ratifies all that said attorney shall lawfully do or cause to be done by virtue hereof. This power of attorney shall be irrevocable as long as any of the Obligations are outstanding.
(ivg) Landlord may enter upon the Premises All of Lender’s rights and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance remedies with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting respect to the Tenant from such action). All such remedies of Land- lord Collateral, whether established hereby or by any other agreements, instruments or documents or by law shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law exercised singly or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedyconcurrently.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Security Agreement (DSL Net Inc)
Events of Default Remedies. a) The following events occurrence and continuance of an Event of Default under the Credit Agreement shall be deemed to be constitute an “event of default” hereunder. In case any one or more events of default shall happen, then the security constituted by Tenant this Mortgage shall become immediately enforceable and that without limitation, the enforcement remedies specified can be exercised irrespective of whether or not the Mortgagee has exercised the right of acceleration under this Leasethe Credit Agreement or any of the other Credit Documents and the Mortgagee shall have the right to:
(i) Tenant Declare all the then unpaid Indebtedness hereby secured to be due and payable immediately, and upon such declaration, the same shall fail to pay become and be immediately due and payable provided, however, that no declaration shall be required if an event of default shall have occurred by reason of a default under Section 7.3 of the Credit Agreement, then and in such case, the Indebtedness hereby secured shall become immediately due and payable on the occurrence of such event of default without any Rent notice or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:demand;
(ii) Tenant shall fail Exercise all of the rights and remedies in foreclosure and otherwise given to comply with a mortgagee by the provisions of the laws of the country of registry of the Rig or of any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as jurisdiction where the Rig may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultfound;
(iii) The leasehold hereunder demised shall Bring suit at law, in equity or in admiralty, as it may be taken on execution advised, to recover judgment for the Indebtedness hereby secured, and collect the same out of any and all property of the Shipowner whether covered by this Mortgage or other process of law in any action against Tenantotherwise;
(iv) Tenant shall fail to promptly move into, take Take and enter into possession of the Rig, at any time, wherever the same may be, without legal process and operate its business on the Premises when the Premises are ready for occupancy Shipowner or shall cease to do business other person in or vacate or abandon any substantial portion possession forthwith upon demand of the Premises Mortgagee shall surrender to the Mortgagee possession of the Rig;
(v) The Mortgagee may hold, lay up, lease, charter, operate or otherwise use such Rig for more than such time and upon such terms as it may deem to be for its best advantage, and demand, collect and retain all hire, freights, earnings, issues, revenues, income, profits, return premiums, salvage awards or recoveries, recoveries in general average, and all other sums due or to become due in respect of such Rig or in respect of any insurance thereon from any person whomsoever, accounting only for the net profits, if any, arising from such use of the Rig and charging upon all receipts from the use of the Rig or from the sale thereof by court proceedings or pursuant to subsection (vi) next following, all costs, expenses, charges, damages or losses by reason of such use; and if at any time the Mortgagee shall avail itself of the right herein given them to take the Rig, the Mortgagee shall have the right to dock the Rig, for a reasonable time at any dock, pier or other premises of the Shipowner without charge, or to dock her at any other place at the cost and expense of the Shipowner;
(vi) The Mortgagee may sell the Rig upon such terms and conditions as to the Mortgagee shall seem best, free from any claim of or by the Shipowner, at public or private sale, by sealed bids or otherwise, by mailing, by air or otherwise, notice of such sale, whether public or private, addressed to the Shipowner at its last known address and to any other registered mortgagee, twenty (20) calendar days prior to the date fixed for such sale and by first publishing notice of any such public sale for ten (10) consecutive days, in daily newspapers of general circulation published in the City of New York, State of New York; in the event that the Rig shall be offered for sale by private sale, no newspaper publication of notice shall be required, nor notice of adjournment of sale; sale may be held at such place and at such time as the Mortgagee by notice may have specified, or may be adjourned by the Mortgagee from time to time by announcement at the time and place appointed for such sale or for such adjourned sale, and without further notice or publication the Mortgagee may make any such sale at the time and place to which the same shall be so adjourned; and any sale may be conducted without bringing the Rig to the place designated for such sale and in such manner as the Mortgagee may deem to be for its best advantage, and the Mortgagee may become the purchaser at any sale. The Shipowner agrees that the terms of this paragraph shall be deemed a commercially reasonable manner of sale insofar as it is concerned;
(vvii) Tenant shall become insolvent or unable Require that all policies, contracts, certificates of entry and other records relating to pay its debts as they become duethe insurance with respect to the Rig, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admissionincluding, answer or other responsive pleading consenting but not limited to, those described in Article II, Section 13 hereof (the “Insurances”) (including details of and correspondence concerning outstanding claims) be forthwith delivered to or requesting to the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning order of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; orMortgagee;
(viii) The adjudication Collect, recover, compromise and give a good discharge for any and all monies and claims for monies then outstanding or thereafter arising under the Insurances or in respect of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all the earnings or any part of its interests in requisition compensation and to permit any brokers through whom collection or recovery is effected to charge the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 aboveusual brokerage therefor.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Credit Agreement (Transocean Ltd.)
Events of Default Remedies. (a) The following events shall be deemed to be events constitute an "Event of default by Tenant under this Lease:
Default" hereunder: (i) Tenant an Event of Default under the Note, (ii) an Event of Default under the Line of Credit Agreement, (iii) an Event of Default under any of the other Loan Documents, (iv) at any time the Oak TAC Shares and the Accommodation TAC Shares, in the aggregate, do not equal at least 51% (or such larger percentage as the Lender, in its sole discretion, shall fail determine is necessary to pay control the management of TAC in light of the taking of any Rent action by the board of directors of TAC that would require that the approval of more than 50% of the outstanding voting shares of TAC is necessary for the taking of any action by the shareholders, including, without limitation, the election of directors) of the issued and outstanding shares of common stock of TAC, or do not constitute at least 51% of the outstanding voting securities of TAC, after giving effect to the pledge of additional issued and outstanding shares by Excalibur, Borrower or any other sums holder of money due hereunder TAC shares, and such failure shall continue for a period of ten (10v) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision breach by Pledgor of any representation, covenant or obligation of Pledgor under this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default canAgreement that is not be cured by Pledgor within thirty (30) days of his receipt from Secured Party of written notice of such breach.
(b) Upon the occurrence and during the continuance of an Event of Default beyond any applicable cure period, Secured Party may, without notice to or assent of Pledgor, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Pledgor or any other Person, all and each of which demands, advertisements and other notices are expressly waived to the extent permitted by applicable law, forthwith collect, receive, appropriate and realize upon the Pledged Collateral or any part thereof, and may forthwith sell, assign, give option or options to purchase, contract to sell or otherwise dispose of and deliver the Pledged Collateral or any part thereof in accordance with law, in one or more parcels at public or private sale or sales, at any exchange, broker's board or any of Secured Party's offices or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk, with the right to Secured Party or Secured Party's nominee upon any such sale or sales, public or private, to purchase the whole or any part of the Pledged Collateral. The parties agree that 10 days shall be reasonable notice for any public or private sale of the Pledged Collateral.
(c) Upon the occurrence and during the continuance of an Event of Default beyond any applicable cure period, any and all rights of Pledgor to exercise the voting and other consensual rights as a equity interest holder of the Company shall cease immediately, and such rights shall thereupon become vested in Secured Party who shall thereupon have the sole voting and consensual rights with respect to the Interests. Pledgor shall, if Tenant is diligently attempting necessary to cure such Default, Landlord shall grant such additional reasonable time as permit Secured Party to exercise the voting and other rights which it may be necessary entitled to cure such Non-Monetary Defaultexercise and to receive all distributions which it may be entitled to receive, but execute and deliver to Secured Party, from time to time and upon written notice from Secured Party, appropriate proxies and other instruments as Secured Party may request. The foregoing shall in no event shall Landlord grant more than ninety (90) days way limit Secured Party's power and authority granted pursuant to cure a Non-Monetary default;Section 10 hereof.
(iiid) The leasehold hereunder demised In addition to the rights and remedies granted to it in this Agreement and in any other instrument or agreement securing, evidencing or relating to any of the Obligations, Secured Party shall have all the rights and remedies of a secured party under the UCC.
(e) Any cash held by Secured Party as Pledged Collateral and all cash Proceeds received by Secured Party in respect of any sale of, collection from, or other realization upon all or any part of the Pledged Collateral shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail applied by Secured Party: First, to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion payment of the Premises for more than ten (10) consecutive days;
(v) Tenant costs and expenses of such sale, including, without limitation, reasonable expenses of Secured Party and its agents including the fees and expenses of its counsel, and all expenses, liabilities and advances made or incurred by Secured Party in connection therewith; Next, to the payment of the Obligations, in such order as the Loan Documents shall become insolvent prescribe; and Finally, after payment in full of all of the Obligations, to the payment to Pledgor or unable to pay its debts as they become duehis heirs, Tenant files a petition in bankruptcy representatives or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting toassigns, or requesting to whomsoever may be lawfully entitled to receive the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant same as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rentmay direct.
(iiif) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's accountSecured Party shall not, holding Tenant liable in damages for all expenses incurred under any circumstances, or in any such reletting and event whatsoever, have any liability for any difference between error, omission or delay of any kind occurring in the amount of rent received from such reletting settlement of, and collection or payment for, the rent due and payable under the term of this Lease; andPledged Collateral.
(ivg) Landlord may enter upon the Premises The rights and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this LeaseAgreement and the other Loan Documents and in any other agreements, instruments and documents delivered in no event shall Tenant have connection with this Agreement and the right to terminate other Loan Documents, are cumulative and are in addition to, and not exclusive of, any other rights or rescind this Lease or to offset remedies provided by law including, without limitation, the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such rights and remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to secured party under the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus LandlordUCC.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Pledge and Security Agreement (Oak Finance Investments LTD)
Events of Default Remedies. (a) The Each of the following events shall be deemed to be events constitute an “Event of default by Tenant Default” under this LeaseSublease:
(i) Tenant shall fail Subtenant fails to pay any when due Rent or any other sums of money amount due hereunder and hereunder; provided, however, on the first (1st) occasion with respect to any such failure during any Sublease Year, Sublandlord shall continue for furnish Subtenant with written notice of such failure and permit Subtenant a three (3) business day period of ten (10) days after the date to cure such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:failure;
(ii) Tenant shall fail Subtenant fails to comply with perform or observe any other Non-Monetary provision of covenant or agreement set forth in this Lease or any other agreement between Landlord Sublease and Tenant, if applicable, after Landlord has provided thirty such failure continues for fifteen (3015) days prior after written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; howeverthereof, if such unless the default cannot be cured with reasonable diligence within such period and Subtenant commences and diligently proceeds with rectifying such default hereunder and completes the cure of such default within thirty (30) days and if Tenant is diligently attempting to cure following Subtenant’s receipt of the original written notice of such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold the default or non-performance of any other obligation, covenant or agreement of Subtenant hereunder demised shall be taken on execution or other process which, if it remains uncured would result in an event of law default of Sublandlord under the Xxxxxxxxx, and such event is not cured at least five (5) business days in any action against Tenantadvance of the time period required for a cure thereof under the Xxxxxxxxx;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business institution in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all proceedings for reorganization, liquidation, or substantially all involuntary dissolution by Subtenant, or for
(v) its adjudication as a bankrupt or insolvent, or for the appointment of Tenant's propertya receiver of the property of Subtenant, and within thirty (30) days thereafter such filing is provided that proceedings are not dismissed, and any receiver, trustee or such court order liquidator appointed therein is not vacated discharged within sixty (60) days after the institution of such proceedings; or such assumption (vi) any assignment of this Sublease or sequestration is not released, further sublet of the Subleased Premises in contravention of this Sublease or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; orXxxxxxxxx.
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of an Event of Default, Sublandlord shall have, in addition to any event or events of default or other breach of rights and remedies available to it under this Lease by TenantSublease and/or at law and/or in equity, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the rightIf this Sublease is terminated due to an Event of Default, at its electionthen unless and until Sublandlord elects lump sum liquidated damages described in (ii) below, Subtenant covenants, as an additional cumulative obligation after any such termination, to cancel pay punctually to Sublandlord all the sums and terminate perform all the obligations which Subtenant covenants in this Lease Sublease to pay and dispossess Tenant to perform in the same manner and to the same extent and at the same time as if this Sublease had not been terminated. In calculating the amounts to be paid by summary proceedings or other lawful means;Subtenant pursuant to the preceding sentence Subtenant shall be credited with the net proceeds of any rent then actually received by Sublandlord from a reletting of the Subleased Premises after deducting all sums provided for in this Sublease to be paid by Subtenant and not then paid.
(ii) Landlord shall have If this Sublease is terminated due to an Event of Default, then Subtenant covenants, as an additional cumulative obligation after termination, to pay forthwith to Sublandlord at Sublandlord’s election made by written notice to Subtenant at any time within one year after termination, as liquidated damages a single lump sum payment equal to the right sum of (1) all sums provided for in this Sublease to declare be paid by Subtenant and not then paid at the time of such election, plus (2) the present value (calculated at the Federal Reserve discount rate or equivalent plus 2%) of the excess of all amounts and rents due under this Lease of the rent reserved for the remainder residue of the existing term (and any applicable extension or renewal thereof) Term over all of the fair market rent reasonably projected by Sublandlord to be immediately due received on account of the Subleased Premises during such period, which rent from reletting shall be reduced by reasonable projections of vacancies and payable, and thereupon all rents and other charges due hereunder by Sublandlord’s reletting expenses described above to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary extent not theretofore paid to obtain such alternate source of rentSublandlord.
(iii) Landlord may elect to enter any and repossess all rights and remedies of Overlandlord set forth in the Premises and relet Xxxxxxxxx in connection with a default by Sublandlord thereunder which continues after the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in expiration of any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; andapplicable cure period therein.
(iv) Landlord may enter In addition, without limiting any of the foregoing, in the event Sublandlord reasonably believes that Subtenant’s failure to cure a breach under Section 14(a) above shall cause a default by Sublandlord to occur under the Xxxxxxxxx and Subtenant has not commenced to cure such breach within five (5) days following written notice from Sublandlord (provided that no such notice shall be required in the event of an emergency threatening life or property) or has commenced but ceased the cure of such default, Sublandlord shall specifically have the right to cure such breach or default and be reimbursed by Subtenant as Additional Rent hereunder for all out-of-pocket expenses (including attorneys’ fees) incurred by Sublandlord in connection therewith upon the Premises demand and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action)presentation of invoices therefor. All such rights and remedies of Land- lord Sublandlord herein enumerated shall be cumulative and not exclusive, and in addition, Landlord may pursue none shall exclude any other remedies that may be permitted right allowed by law or in equity. Forbearance by Landlord equity and such rights and remedies may be exercised and enforced concurrently (except for the election to enforce one or more of exercise the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease (i) or (ii) above) and whenever and as a result of often as the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordoccasion therefor arises.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. The occurrence of any one of the following shall constitute a default (each an “Event of Default”) by Borrower under this Agreement: (a) The following events shall be deemed to be events of default by Tenant under this Lease:
(i) Tenant if Borrower shall fail to pay any Rent (i) principal amount of any Advance, when due and payable, or declared due and payable, or (ii) interest on any other sums of money due hereunder and such failure shall continue for a period of ten Advance within five (105) days after the date on which such Rent payment of interest shall become due and payable, or declared due and payable; (b) if Borrower shall fail to pledge additional Auction Rate Securities as required under Section 8(b) above; (c) if Borrower or Guarantor shall default in the performance or observance of any other sums of their obligations under this Agreement or any of the other Credit Documents, and such default shall remain uncured for a period of fifteen (15) days after notice from Lender; (d) if any representation, warranty, statement, report or certificate made or delivered by Borrower or Guarantor, or any of their officers, employees or agents, to Lender is due not true and correct in any material respect when made or deemed made; (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
e) If Borrower or Guarantor shall (i) become insolvent, (ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure paying its debts generally as such Defaultdebts become due, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes make an assignment for the benefit of creditors, creditors or cause or suffer any of their respective assets to come within the meaning possession of any receiver, trustee or custodian, (iv) have a petition filed by or against Borrower or Guarantor under the bankruptcy laws Bankruptcy Reform Act of 1978, as amended, or Tenant consents to the appointment of a receiver any similar law or custodian for all or a substantial part regulation, (v) have any of its property; assets attached, seized or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissedlevied upon, or such court order is not vacated (vi) otherwise become the subject of any insolvency or such assumption creditor enforcement proceedings, provided however, that any involuntary petition or sequestration is not released, other proceeding against Borrower or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which Guarantor shall not be unreasonably deniedan Event of Default unless an order for relief is entered or such proceeding remains undismissed for at least sixty (60) days; or
(viiif) The adjudication of Tenant as a bankruptor; or
(ix) Tenant if Borrower or Guarantor shall attempt to assign, transfer, sublet all or any part of its interests default in the Premises payment, when due, whether by acceleration or otherwise, of any indebtedness of Borrower in this Lease without Landlord's prior written consent subject to excess of $1,000,000, and such default is declared and is not cured within the provisions of Section 19 above.
b) Upon time, if any, specified there for in any agreement governing the occurrence of same, or any event or events condition shall occur which results in the acceleration of default or other breach the maturity of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any such Indebtedness of Borrower; (g) if one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings judgments or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, decrees shall be accelerated; howeverentered against Borrower or Guarantor involving, Landlord shall credit Tenant for any re-renting income for individually, or in the Premisesaggregate, after deducting Landlord's costs necessary to obtain a liability of $1,000,000 or more and such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord judgments or decrees shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusivehave been satisfied, and in additionvacated, Landlord may pursue any other remedies that may be permitted by law discharged or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder stayed pending appeal within thirty (30) days after the receipt entry thereof; or (h) if this Agreement, the Note, or any other Credit Documents executed by Landlord Borrower or Guarantor at any time after their respective execution and delivery, shall cease to be in full force and effect, shall be declared null and void, shall be revoked or terminated or shall be subject to any contest by Borrower or Guarantor as to their validity and/or enforceability, for any reason, or if Borrower or Guarantor shall for any reason deny any further liability to Lender hereunder and thereunder. Upon the occurrence and during the continuance of written any Event of Default, Borrower may not request any Advance under this Agreement, Lender may then forthwith cease making Advances to or for the benefit of Borrower under this Agreement without any notice from Tenant to Borrower, and Lender may terminate this Agreement; provided that this Agreement shall automatically terminate, and all amounts Borrower owes Lender hereunder and under the Note shall become due, without any notice should an order for relief be entered with respect to Borrower under the United States Bankruptcy Code. Upon an Event of Default, with notice by Lender to or demand by Lender of Borrower, Lender may declare all Advances to be immediately due and payable. Lender, in its sole discretion, upon the occurrence of and during the continuance of an Event of Default may exercise one or more of the alleged failure rights and remedies accruing to perform and does not continue SpanishRiver.Manchester.September 22Lender under this Agreement or the other Credit Documents, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Leaseand/or applicable law upon default by Borrower, in no event shall Tenant have including, without limitation, the right to terminate or rescind this Lease or set off and/or reduce to offset cash and apply to the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach payment of any promise of Borrower’s obligations, any monies, reserves, deposits, certificates of deposit, deposit accounts and interest and dividends thereon, securities, investment property, cash and other property in the possession of or inducement hereof, whether in this Lease under the control of Lender or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus LandlordLender’s affiliates.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. In case anyone or more of the following events, herein termed “events of default”, shall happen:
(a) The following events the Shipowner fails to pay on the date due any payment of principal in respect of the Indebtedness hereby secured as provided herein or the Shipowner fails to pay within three (3) Business Days of the date due any payment of interest or any Commitment Commission or any other amount owing under the Subsidiaries Guaranty; or
(b) the statements in Article I shall prove to have been untrue when made in a material way; or
(c) a default in the due and punctual observance and performance of any of the provisions of Sections 2, 3, 7, 8, 9(b), 11, 12, 13(a), (b), (c), (e), (i) and (k), 16 or 17 of Article II hereof shall have occurred and be continuing; or
(d) a breach or omission in the due and punctual observance of any of the other covenants and conditions herein required to be kept and performed by the Shipowner and such breach or omission shall continue for 30 days after the day the Shipowner first knew or should have known of such breach or omission; or
(e) an Event of Default shall have occurred and be continuing under the Credit Agreement; or
(f) a payment default by the Borrower under any Interest Rate Protection Agreement or Other Hedging Agreement shall have occurred and be continuing; or
(g) any notice shall have been issued by the government or any bureau, department, officer, board or agency thereof of the country of registry of the Vessel to the effect that the Vessel is subject to cancellation from such registry or the certificate of registry of the Vessel is subject to revocation or cancellation for any reason whatsoever, and such notice shall not have been cancelled or annulled on or before seven (7) Business Days prior to the date set forth in such notice for such cancellation or revocation; or
(h) the Vessel shall be deemed to cancelled from the country of registry of the Vessel or the certificate of registry of the Vessel is revoked or cancelled for any reason whatsoever; then: the security constituted by this Mortgage shall become immediately enforceable and that without limitation, the enforcement remedies specified can be events exercised irrespective of default by Tenant whether or not the Mortgagee has exercised the right of acceleration under this Leasethe Credit Agreement or any of the other Credit Documents and the Mortgagee, in accordance with the Credit Agreement, shall have the right to:
(i) Tenant Declare all the then unpaid Indebtedness hereby secured to be due and payable immediately, and upon such declaration, the same shall fail to pay become and be immediately due and payable provided, however, that no declaration shall be required if an Event of Default shall have occurred by reason of a Default under Section 10.05 of the Credit Agreement, then and in such case, the Indebtedness hereby secured shall become immediately due and payable on the occurrence of such Event of Default without any Rent notice or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:demand;
(ii) Tenant shall fail Exercise all of the rights and remedies in foreclosure and otherwise given to comply with a mortgagee by the provisions of the laws of the country of registry of the Vessel or of any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as jurisdiction where the Vessel may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultfound;
(iii) The leasehold hereunder demised shall Bring suit at law, in equity or in admiralty, as it may be taken on execution advised, to recover judgment for the Indebtedness hereby secured, and collect the same out of any and all property of the Shipowner whether covered by this Mortgage or other process of law in any action against Tenantotherwise;
(iv) Tenant shall fail to promptly move into, take Take and enter into possession of the Vessel, at any time, wherever the same may be, without legal process and operate its business on without being responsible for loss or damage and the Premises when the Premises are ready for occupancy Shipowner or shall cease to do business other person in or vacate or abandon any substantial portion possession forthwith upon demand of the Premises Mortgagee shall surrender to the Mortgagee possession of the Vessel;
(v) Without being responsible for more than loss or damage, the Mortgagee may hold, lay up, lease, charter, operate or otherwise use such Vessel for such time and upon such terms as it may deem to be for its best advantage, and demand, collect and retain all hire, freights, earnings, issues, revenues, income, profits, return premiums, salvage awards or recoveries, recoveries in general average, and all other sums due or to become due in respect of such Vessel or in respect of any insurance thereon from any person whomsoever, accounting only for the net profits, if any, arising from such use of the Vessel and charging upon all receipts from the use of the Vessel or from the sale thereof by court proceedings or pursuant to subsection (vi) next following, all costs, expenses, charges, damages or losses by reason of such use; and if at any time the Mortgagee shall avail itself of the right herein given them to take the Vessel, the Mortgagee shall have the right to dock the Vessel, for a reasonable time at any dock, pier or other premises of the Shipowner without charge, or to dock her at any other place at the cost and expense of the Shipowner;
(vi) Without being responsible for loss or damage, the Mortgagee may sell the Vessel upon such terms and conditions as to the Mortgagee shall seem best, free from any claim of or by the Shipowner, at public or private sale, by sealed bids or otherwise, by mailing, by air or otherwise, notice of such sale, whether public or private, addressed to the Shipowner at its last known address and to any other registered mortgagee, twenty (20) calendar days prior to the date fixed for entering into the contract of sale and by first publishing notice of any such public sale for ten (10) consecutive days, in daily newspapers of general circulation published in the City of New York, State of New York; in the event that the Vessel shall be offered for sale by private sale, no newspaper publication of notice shall be required, nor notice of adjournment of sale; sale may be held at such place and at such time as the Mortgagee by notice may have specified, or may be adjourned by the Mortgagee from time to time by announcement at the time and place appointed for such sale or for such adjourned sale, and without further notice or publication the Mortgagee may make any such sale at the time and place to which the same shall be so adjourned; and any sale may be conducted without bringing the Vessel to the place designated for such sale and in such manner as the Mortgagee may deem to be for its best advantage, and the Mortgagee may become the purchaser at any sale. The Shipowner agrees that any sale made in accordance with the terms of this paragraph shall be deemed made in a commercially reasonable manner insofar as it is concerned;
(vvii) Tenant shall become insolvent or unable Require that all policies, contracts, certificates of entry and other records relating to pay its debts as they become duethe insurance with respect to the Vessel, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admissionincluding, answer or other responsive pleading consenting but not limited to, those described in Article II, Section 13 hereof (the “Insurances”) (including details of and correspondence concerning outstanding claims) be forthwith delivered to or requesting to the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning order of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; orMortgagee;
(viii) The adjudication Collect, recover, compromise and give a good discharge for any and all monies and claims for monies then outstanding or thereafter arising under the Insurances or in respect of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all the earnings or any part of its interests in requisition compensation and to permit any brokers through whom collection or recovery is effected to charge the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 aboveusual brokerage therefor.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. (a) The following events shall be deemed to be events constitute "Events of default by Tenant under this LeaseDefault" hereunder:
(i) Tenant If the Mortgagor shall (a) sell or transfer, or attempt to sell or transfer by operation of law or otherwise, its interest in the Vessel, except as permitted in the Security Agreement, or (b) permit the attachment of any suit, lien, claim, charge or encumbrance of any kind (i) in excess of $5,000 in the aggregate at any time if the Vessel is in drydock, (ii) which is not released within 30 days after it first attaches if the Vessel is in drydock, (iii) in excess of $5,000 in the aggregate at any time if the Vessel is not in drydock and the costs relate to items other than non-drydock repairs made while the Vessel is at port, and (iv) which is not released within 30 days after it first attaches if the Vessel is not in drydock and the costs relate to items other than non-drydock repairs made while the Vessel is at port; or
(ii) If the Mortgagor shall remove or attempt to remove the Vessel beyond the limits of the United States, save on voyages with the intention of returning to the United States, or shall abandon the Vessel; or
(iii) If the Vessel shall be libeled and levied upon or taken by virtue of any attachment or execution against the Mortgagor and such libel or levy is not released by Mortgagor within 30 days; or
(iv) The occurrence of an "Event of Default" under the Security Agreement;
(v) If the Mortgagor shall fail to pay any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord)Secured Obligation when due; hereinafter referred to as a "Monetary Default:;or
(iivi) Tenant The title or ownership of the Vessel shall fail be requisitioned, purchased or taken by the government of any country or by any department, agency or representative thereof and there shall not have been paid to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice Mortgagee an amount in cash in United States dollars equal to the fair value of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default Vessel within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultafter such event occurs;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events an Event of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have Default the option to pursue any one or more of the following remediesMortgagee may:
(i) Landlord Declare the Secured Obligations to be due and payable forthwith, whereupon such Secured Obligations shall have the right, at its election, to cancel become and terminate this Lease be immediately due and dispossess Tenant by summary proceedings or other lawful meanspayable;
(ii) Landlord shall have the right Exercise all of thc rights, powers and remedies in foreclosure and otherwise given to declare all amounts and rents due under this Lease for the remainder thc Mortgagee by thc provisions of the existing term (and any applicable extension or renewal thereof) to be immediately due and payableChapter 313 of title 46), United States Code, and thereupon all rents acts amendatory thereof and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.supplemental thereto;
(iii) Landlord may elect to enter Recover judgment for any amount due on the debt and repossess collect the Premises and relet same out of any property of the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred Mortgagor without its security under this First Preferred Ship Mortgage being in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; andway affected or impaired thereby;
(iv) Landlord Demand and receive all freights, hires, charter hires, earnings/or profits of the Vessel, due or to become due from any person whomsoever;
(v) With or without legal process re-enter and take possession of the Vessel at any time wherever it may enter upon be found and, without being responsible for loss or damage, hold, lease, charter, operate or otherwise use the Premises Vessel for such time and do whatever Tenant is obligated on such terms as the Mortgagee may deem advisable and collect and retain all freights, hires, earnings, and/or other moneys due or to do under this Lease become due and arising therefrom, and/or if it seems desirable to the Mortgagee, and without being responsible for loss or damage, with or without possession, sell the Vessel free from any claim by the Mortgagor in admiralty, in equity, at law or by statute, after first giving notice of the time and place of sale, with a general description of the property, by publishing such notice in such manner as may be required by applicable rules of court and as may be reasonably calculated to give adequate notice of the sale to potential buyers through trade publication, via brokers, or otherwise, and by mailing a similar notice to the Mortgagor at its last known business address on the day of first publication. Such sale may be held at any place and at such time as the Mortgagee may specify, and in such manner as the Mortgagee may deem advisable, and may be conducted without bringing the Vessel to the place of sale, and the Mortgagee may become a purchaser at the sale. From time to time the Mortgagee may adjourn any such sale by announcement at the time and place appointed for such sale or by any adjourned sale; and without notice or publication, the Mortgagee may make such sale at the time and place to which the same shall be so adjourned.
(and Tenant agrees vi) Bring suit at law, in equity or in admiralty, as it may be advised, to reimburse Land- lord on demand recover judgment for any expenses which Landlord may incur and all amounts due, and collect the same from Mortgagor and/or out of any and all property of Mortgagor whether covered by this First Preferred Ship Mortgage or otherwise;
(vii) Commence a civil action in effecting compliance with Tenant's obligations under rem to foreclose this Lease First Preferred Ship Mortgage and Tenant further agrees that Landlord shall not be liable for any damages resulting obtain an order to sell, and sell, the Vessel, pursuant to the Tenant provisions of the Act of November 23, 1988, P.L. 100-710, 102 Stat. 4735, as amended, 46 U.S.C. 31325 and 31326, or their successor provisions, or by other judicial process as may be provided in the statutes.
(c) Mortgagor hereby consents to thc appointment of a custodian of the Vessel by Mortgagee with thc costs thereof to be a cost of the sale to be paid from such action). All such remedies the proceeds of Land- lord the sale or by Mortgagor.
(d) Each and every power or remedy herein specifically given to the Mortgagee shall be cumulative and not exclusiveshall be in addition to every other power or remedy herein specifically given or now or hereafter existing at law, in equity, in admiralty or by statute, and in additioneach and every power or remedy, Landlord may pursue any other remedies that whether specifically herein given or otherwise so existing may be permitted exercised from time to time and as often and at such order as may be deemed expedient by law the Mortgagee, and the exercise or in equity. Forbearance by Landlord to enforce one or more the beginning of the remedies herein provided upon an event exercise of default any power or remedy shall not be deemed a waiver of the right to exercise at the same time or thereafter any other power or remedy. No delay or omission by the Mortgagee in the exercise of any right or power accruing upon any Event of Default shall be construed to constitute be a waiver of such default or remedyany acquiescence therein; nor shall the acceptance by the Mortgagee of any security or of any payment after such default or any payment on account of any past default be deemed a waiver of any right to take advantage of any other default or of any past default not completely cured thereby.
c(e) This Paragraph 28 shall be enforceable If, at any time after an Event of Default and previous to the maximum extent permissible actual sale of the Vessel by applicable lawthe Mortgagee or to any foreclosure proceedings, the Mortgagor completely cures all Events of Default and pays all expenses, advances and damages to the Mortgagee consequent on such Event of Default with interest and the monthly service fee at the rates provided in the Security Agreement, then the Mortgagee shall accept such payment and cure and restore the Mortgagor to its former position, but such actions shall not affect any subsequent Event of Default, nor impair any rights consequent thereon.
(f) The proceeds of any sale, and the unenforceability net earnings of any portion hereof shall not thereby render unenforceable any charter, operation or other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant use of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue Vessel by the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to Mortgagee under any covenant or agreement contained in this Lease or as a result of the breach powers herein specified, and the proceeds of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies Judgment collected by the Mortgagee for any default hereunder and for breach the proceeds of any promise insurance or inducement of any claim for damages on account of the Vessel, received by Landlord the Mortgagee while exercising any such power, and any and all other proceeds collected by the Mortgagee, or in any proceedings hereunder, the application of which has not elsewhere been specifically provided for, shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.applied as follows:
Appears in 1 contract
Samples: First Preferred Ship Mortgage (Leisure Time Casinos & Resorts Inc)
Events of Default Remedies. a) The following events 9.1 An event of default shall be deemed to be events have occurred upon the occurrence of default by Tenant under this Leaseany of the following events:
(ia) Tenant any amount payable on the Loan shall fail to pay any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be paid on the Maturity Date and shall not have been cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;from the Maturity Date; or
(iiib) The leasehold hereunder demised except with respect to Section 6A.5, a material breach or failure of performance by the Borrower of any covenant, condition or agreement on its part to be observed or performed contained in this Agreement or the Notes which shall not have been cured within five (5) business days after receipt by the Borrower of notice thereof given by the Lenders; or
(c) any material breach or failure of performance by the Borrower under Section 6A.5.
(d) any material representation or warranty made by the Borrower herein shall prove to have been false or breached in any material respect on and as of the date on which made; or
(e) the Borrower shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail adjudged to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become be insolvent or unable to pay its debts as they become duemature or any receiver, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admissiontrustee, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiverliquidator, custodian or trustee for all like officer be appointed to take custody, possession or a substantial part control of its any property without its consent or of the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably deniedBorrower; or
(viiif) The adjudication there shall be in effect any statute, rule, law or regulation that prohibits the disbursement of Tenant as a bankruptorthe Loan or if the disbursement of the Loan would violate any non-appealable final judgment, order, decree, ruling or injunction of any court of or governmental authority having competent jurisdiction; or
(ixg) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without LandlordBorrower's prior written consent subject to the provisions of Common Stock is not registered under Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more 12 of the following remedies:Exchange Act; or
(h) except as set forth in Schedule 5.11, the Borrower is not current in its reporting obligations under Section 13 or 15(d) of the Exchange Act; or
(i) Landlord an event occurs prior to the disbursement of the Loan requiring the Borrower to report such event to the SEC on Form 8-K and not otherwise set forth in Schedule 9.1, provided, however, such event shall have only include the rightfollowing items under Form 8-K: Item 1, at its electionItem 2 to the extent that any event is reported under Item 2 that involves a change in the nature of the Borrower's business; Item 3; or Item 4 (provided further, that as to cancel and terminate this Lease and dispossess Tenant Item 4, only if the event requires disclosure under Item 304(a)(1)(iv) under Regulation S-B); or
(j) trading in the Common Stock has been suspended, delisted, or otherwise ceased by summary proceedings the Commission or the NASD or other lawful means;exchange or the Nasdaq (whether the National Market or otherwise), except for any suspension of trading of limited duration solely to permit dissemination of material information regarding the Borrower, and not reinstated within ten (10) business days; or
(iik) Landlord shall have the right to declare all amounts and rents due under this Lease transfer agent for the remainder of the existing term (and any applicable extension or renewal thereof) Common Stock fails to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income deliver certificates for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rentConversion Shares and/or the Warrant Shares as required by this Agreement.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon 9.2 If an event of default shall not have occurred and be deemed continuing:
(a) The Lenders may (by written notice delivered to the Borrower) declare all or construed to constitute a waiver any portion of such default or remedythe Loan immediately due and payable.
(b) The Bauer resignation shall become efxxxxxve.
(c) This Paragraph 28 The Lenders shall also be enforceable entitled to the maximum extent permissible by applicable law, exercise all their rights and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except remedies as otherwise specifically provided may exist at law or as set forth in this Lease, in no event shall Tenant have Agreement and/or the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus LandlordNotes.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Loan Agreement (Finders Keepers Inc)
Events of Default Remedies. a) The following events shall be deemed to be events constitute an Event of default by Tenant under this LeaseDefault hereunder:
(i) if Tenant or any of its permitted Transferees shall fail to pay make payment of any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of sum payable under this Lease or any other agreement between Landlord and TenantLease, provided, however, if applicablewithin the last twelve (12) months, after Landlord has not previously provided thirty (30) days prior Tenant with written notice of any monetary default (failure to pay sum when due) then Landlord shall give Tenant written notice specifying such Non-Monetary Default default and Tenant has failed an event of default shall be found to cure such Non-Monetary Default within said thirty (30) days provided; howeverhave occurred, if such default canis not be cured within thirty (30) days and of the delivery of such notice.
(ii) if Tenant shall be adjudged bankrupt or insolvent, file any debtor proceedings, or take or have taken against Tenant, in any court pursuant to any statute now or hereafter enacted, a petition in bankruptcy or insolvency or for an arrangement or for reorganization, composition, or any other arrangement with Xxxxxx’s creditors, and the same is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than not dismissed within ninety (90) days days, or if this Lease or the estate of Tenant herein shall pass to cure or devolve upon, by operation of law or otherwise, anyone other than Tenant (other than as herein provided) and the same does not revert to Tenant within ninety (90) days; or for the appointment of a Non-Monetary defaultreceiver or trustee of all or a portion of Tenant’s property;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant if Xxxxxx makes an assignment for the benefit of creditors, or petitions for or enters into a similar arrangement (other than any arrangement or assignment permitted under this Lease) and the same is not dismissed within ninety (90) days;
(iv) if Tenant shall suffer this Lease to be taken under any writ of execution;
(v) if Tenant or any subtenant of Tenant subleasing the entire Leased Premises shall fail to pay an obligation required under any mortgage within the meaning time provided in such an instrument plus any period of grace to make such payment or cure a failure to make such a payment, or otherwise commit an act of default under any mortgage affecting the Leased Premises;
(vi) if Tenant and any subtenant of Tenant subleasing the entire Leased Premises shall assign this Lease or sublet or otherwise encumber the Leased Premises without first obtaining Landlord’s consent as provided for in Section 9 hereof;
(vii) if the provisions of Section 3 hereof shall not be fully and completely complied with and such failure continues without the curing of the bankruptcy laws or Tenant consents to the appointment same for a period of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter after written notice shall have been given to Tenant by Landlord specifying the nature of such filing failure; provided, however, that if such curing is commenced within such thirty (30) day period but cannot, with due diligence, be completed within such period, the same will not dismissedbecome a default under this Lease so long as Tenant shall at all times diligently, continually, and in good faith prosecute such curing to effect the same as soon as reasonably possible under all prevailing circumstances but in any event completes such cure within ninety (90) days after the aforementioned written notice;
(viii) if Tenant, any Transferees, or any occupant of the Leased Premises shall fail to perform any of the other covenants, conditions and agreements contained in this Lease that are required to be kept or performed by Tenant and such court order failure continues without the curing of the same for a period of thirty (30) days after written notice shall have been given to Tenant by Landlord specifying the nature of such failure; provided, however, that if such curing is commenced within such thirty (30) day period but cannot, with due diligence, be completed within such period, the same will not vacated or become a default under this Lease so long as Tenant shall at all times diligently, continually, and in good faith prosecute such assumption or sequestration is not released, or curing to effect the same as soon as reasonably possible under all prevailing circumstances but in any event completes such cure within ninety (90) days after the aforementioned written notice;
(ix) if Tenant fails to diligently and continuously prosecute the Tenant does not bond off construction of the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably deniedimprovements; or
(viiix) The adjudication of if Tenant as a bankruptor; or
(ix) Tenant shall attempt abandons or ceases to assign, transfer, sublet all or any part of its interests operate in the Leased Premises or in during the term of this Lease without Landlord's prior written consent subject (other than temporary closures following a casualty or to effect any improvements or alterations in and to the provisions of Section 19 above.
b) Leased Premises). Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or notsuch Default, Landlord shall have the immediate right and option (but not the obligation) to pursue re-enter the Leased Premises, either by summary proceedings, force, or otherwise, and to dispossess Tenant and all other occupants therefrom and remove and dispose of all property therein, all without service of any one notice of intention to re-enter and with or more without resort to legal process (which Tenant hereby expressly waives) and without Landlord being deemed guilty of the following remedies:
(i) trespass or becoming liable for any loss or damage which may be occasioned thereby. Further, Landlord shall have the right, at its electionoption, in addition to and not in limitation of any other right or remedy, to cancel and terminate this Lease by giving Tenant notice of cancellation, and dispossess Tenant by summary proceedings or other lawful means;
(ii) upon delivery of such notice, this Lease and the term hereof shall end and terminate as fully and completely and thereupon, unless Landlord shall have theretofore elected to re-enter the Leased Premises, Landlord shall have the immediate right to declare all amounts and rents due under this Lease for of re-entry, in the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payablemanner aforesaid, and thereupon Tenant and all rents other occupants shall quit and other charges due hereunder surrender the Leased Premises to the end of the initial term and any renewal termLandlord, if applicable, but Tenant shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rentremain liable as provided herein.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Ground Lease
Events of Default Remedies. Upon the occurrence of any of the following events (each an "Event of Default"):
(a) The following events any representation or warranty made herein, in any other Loan Document, in any financial statement furnished pursuant to or in connection with this Agreement, or in any report, certificate or other instrument furnished by the Borrower or any authorized officer or employee thereof in connection with this Agreement shall be deemed prove to be events of default by Tenant under this Lease:have been false or misleading in any material respect when made; or
(ib) Tenant default in the payment of the principal of or interest on the Loan and the continuance of such default for a period of 3 days after the due date; or
(c) the Borrower shall fail to pay duly perform or observe in any Rent material respect any of the other terms, conditions, covenants or agreements required to be performed or observed by the Borrower hereunder (other than any such term, condition or agreement otherwise specifically dealt with in the other sums paragraphs of money due hereunder this Section 7.1), and such failure shall continue for a period of ten fifteen (1015) calendar days after notice thereof to the date Borrower; or
(d) an Event of Default shall occur under and as defined in the Mortgage, Security Agreement, any other Loan Document, the Bayfront Agreement or any Guaranty or, if no such Rent "Events of Default" are defined in any such document, the Borrower, Bayfront or a Guarantor shall be in material breach or default of any obligation, agreement or covenant of such Person under such document and shall fail to cure such breach or default within the period or periods of grace, if any, applicable thereto; or
(e) default in the payment of any other sums indebtedness of the Borrower or Bayfront that is due (in an amount greater than $50,000 for a single item of Indebtedness or in an amount greater than $200,000 of Indebtedness in the aggregate, or default in the performance of any other obligation incurred in connection with any such Indebtedness of the Borrower or Bayfront, if the effect of such default is to accelerate the maturity of such Indebtedness or to permit the holder thereof to cause such Indebtedness to be accelerated; provided that no notice being required Event of Landlord); hereinafter referred to Default shall occur hereunder as a "Monetary Default:;
result of any such default with respect to any Indebtedness of the Borrower or Bayfront if (i) the Borrower or Bayfront in good faith contests its liability for such Indebtedness, the amount thereof or its obligation for the performance of such obligation and (ii) Tenant shall fail acceleration of such Indebtedness would not impair the Lenders' interests as holders of the Notes or the Borrower's ability to comply with any other Non-Monetary provision make all payments on the Notes when and as due; or
(f) the Borrower, Bayfront or Brucx Xxxx xxxll voluntarily or involuntarily (i) apply for or consent to the appointment of this Lease a receiver, trustee or liquidator of it or any other agreement between Landlord and Tenantof its properties or assets, if applicable, after Landlord has provided thirty (30ii) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but admit in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate writing its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable inability to pay its debts as they become duemature, Tenant files (iii) make a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an general assignment for the benefit of creditors, (iv) file a voluntary or have filed an involuntary petition in bankruptcy (and, if involuntary, such filing shall not be dismissed within 30 days from the meaning date of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all filing), or a substantial part petition or an answer seeking reorganization or an arrangement with creditors to take advantage of its property; any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or SpanishRiver.Manchester.September 22liquidation law or statute, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant or an answer admitting the material allegations of a petition filed against it in bankruptcy or for reorganization any proceeding under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter any such filing is not dismissedlaw, or such court order is not vacated or such assumption or sequestration is not released, or if (v) take any action for the Tenant does not bond off purpose of effecting any of the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably deniedforegoing; or
(viiig) The adjudication of Tenant as a bankruptorthe Borrower or Bayfront shall incur, permit the incurrence of, create or permit to exist any Lien on Gross Facility Revenues or any Indebtedness secured by Gross Facility Revenues not expressly permitted by the terms hereof; or
(ixh) Tenant Concorde Gaming Corporation shall attempt to assignno longer own, transferdirectly or through subsidiaries, sublet all or any part of its interests at least a majority interest in both the Premises or in this Lease without Landlord's prior written consent subject Borrower and Bayfront; then, the Lenders, by notice to the provisions of Section 19 above.
b) Upon Borrower, may declare the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more outstanding principal of the following remedies:
(i) Landlord shall have Loan, the rightaccrued interest thereon computed at the Default Rate, at its electionand all other obligations of the Borrower to the Lenders under the Loan Documents, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately forthwith due and payable, whereupon the Loan, all accrued interest thereon and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, such obligations shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent immediately become due and payable under payable, in each case without presentment, demand, protest or notice, all of which the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action)Borrower hereby expressly waives. All such remedies of Land- lord shall be cumulative and not exclusive, and in In addition, Landlord the Lenders may pursue exercise any other remedies that may be permitted by right or remedy available to them, or any one of them, at law or in equity. Forbearance by Landlord to enforce one or more of the , including enforcing any and all rights and exercising any remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting under any of the foregoing remedies (Loan Documents or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordapplicable law.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a) The Each of the following events shall be deemed to be events an Event of default by Tenant under this LeaseDefault hereunder:
(ia) Tenant shall fail Failure of any Guarantor to pay any Rent Guaranteed Obligations upon receipt of demand by the Trustee to such Guarantor given in accordance with Section 20 hereof.
(b) The dissolution or liquidation of a Guarantor or the filing by a Guarantor of a voluntary petition in bankruptcy, or the entry of any order or decree granting relief in any involuntary case commenced against a Guarantor under any present or future federal bankruptcy act or any other sums of money due hereunder similar federal or state law, or a petition for such an order or decree shall be filed in any court and such failure petition shall continue for a period of ten (10) not be discharged or denied within 90 days after the date such Rent filing thereof, or other sums is due (with no notice being required of Landlord); hereinafter referred to as if a "Monetary Default:;
(ii) Tenant Guarantor shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but admit in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate writing its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable inability to pay its debts generally as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian trustee or trustee for all liquidator of a Guarantor shall be appointed in any proceeding brought against the Guarantor and shall not be discharged within 90 days after such appointment or if a substantial part of its property without its Guarantor shall consent to such appointment, or the assuming of custody or sequestration assignment by a court of competent jurisdiction Guarantor of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissedits assets for the benefit of its creditors, or such court order is not vacated the entry by a Guarantor into an agreement of composition with its creditors with respect to all or such assumption or sequestration is not releasedsubstantially all of its assets, or a bankruptcy, insolvency or similar proceeding shall be otherwise initiated by or against a Guarantor under any applicable bankruptcy, reorganization or analogous law as now or hereafter in effect and if initiated against the Tenant does not bond off Guarantor shall remain undismissed (subject to no further appeal) for a period of 90 days; provided, the risk to Landlord to Landlord's reasonable satisfactionterm “dissolution or liquidation of a Guarantor,” as used in this subsection (b), which shall not be unreasonably deniedconstrued to include the cessation of the existence of a Guarantor resulting either from a merger or consolidation of the Guarantor into or with another entity or a dissolution or liquidation of the Guarantor following a transfer of all or substantially all of its assets as an entirety; orand provided further that an Event of Default shall not be triggered under this subsection (b) if the Company and the unaffected Guarantor or Guarantors shall continue to own more than 50% of the consolidated assets of the Company and the Subsidiaries.
(viiic) The adjudication If any representation made by a Guarantor contained in this Guaranty was false or misleading in any material respect at the time it was made or delivered. Whenever an Event of Tenant as a bankruptor; or
Default shall have happened and be continuing, (ixa) Tenant shall attempt to assign, transfer, sublet all or any part of its interests the Trustee in the Premises or manner provided in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more 7.1 of the following remedies:
(i) Landlord shall have Indenture may declare the rightentire unpaid principal of, at its electionor redemption premium, to cancel if any, and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have interest on the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) Series 2022A-1 Bonds to be immediately due and payable, and thereupon all rents and other charges due hereunder to (b) the end Trustee may, in its discretion, or shall upon the written request of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source Holders of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable 66 2/3% in damages for all expenses incurred in any such reletting and for any difference between the principal amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do Series 2022A-1 Bonds then Outstanding, take whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by action at law or in equity. Forbearance by Landlord equity as may appear necessary or desirable to collect payments then due or thereafter to become due hereunder or to enforce one observance or more performance of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of Guarantors under this Guaranty. In case the Trustee shall have proceeded to enforce this Guaranty and such proceedings shall have been discontinued or abandoned for any promise or inducement hereofreason, whether then and in this Lease or elsewhere. Tenant hereby waives every such remedies of termination case each Guarantor and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of the Trustee, subject to any promise or inducement by Landlord determination in any applicable proceeding, shall be limited restored respectively to a suit for damages and/or injunction. Tenant hereby covenants thattheir several positions and rights hereunder, prior to the exercise of any such remediesand all rights, it will give the mortgagees on the Property written notice remedies and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any powers of the foregoing remedies (or any other remedy) in a Guarantors and the Trustee shall continue as though no such proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordhad been taken.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a(A) The following events events, or any one or more of them, shall be deemed to be events of default by Tenant under this Leaselease:
(i) Tenant Sublessee shall fail to pay any Rent minimum rent, additional rent or other sum payable hereunder within ten (10) days after written notice that the same is due and payable; provided, however, that if Sublessee shall fail to pay such amount when due and payable twice in any lease year, thereafter no written notice from Sublessor shall be required for the remainder of such lease year to create an event of default hereunder; or
(ii) Sublessee shall fail to perform or comply with any of the other sums of money due hereunder terms, covenants, agreements or conditions hereof and such failure shall continue for a period of ten more than fifteen (1015) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice thereof from Sublessor; provided, however, that if the default is of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default a nature that it cannot be cured within thirty fifteen (3015) days days, Sublessee shall not be considered in default if Sublessee shall, within such period, have commenced with due diligence and if Tenant is diligently attempting dispatch to cure such Defaultdefault, Landlord and shall grant thereafter complete with due diligence and dispatch the curing of such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;; or
(iii) The leasehold hereunder demised Sublessee shall be taken on execution or other process fail to keep the Premises open for business in accordance with the terms of law in any action against Tenant;Article 5 above; or
(iv) Tenant Sublessee shall fail have acted in a manner creating the right of Sublessor to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease terminate this lease pursuant to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;Article 2(c)(iii); or
(v) Tenant Except as permitted by the provisions of Article 5, Sublessee shall become insolvent vacate or unable desert the Premises or remove, attempt to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting toremove, or requesting in Sublessor's reasonable judgment manifest an intention to remove Sublessee's goods or property from the relief afforded by Premises, except in the bankruptcy laws;ordinary and usual course of business; or
(vi) Tenant makes an Sublessee shall make a general assignment for the benefit of creditors, within the meaning or shall admit in writing Sublessee's inability to pay Sublessee's debts as they become due, or shall file a petition under any of Chapters 7, 11 or 13 of the Bankruptcy Reform Act of 1978, or shall have entered against Sublessee an order for relief under any of Chapter 7, 11 or 13 of the Bankruptcy Reform Act of 1978, or shall be adjudicated insolvent, or shall file a petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation relating to bankruptcy laws or Tenant consents insolvency, or shall file an answer admitting or not contesting the material allegations of a petition against Sublessee in any such proceeding, or shall seek or consent to or acquiesce in the appointment of a any trustee, receiver or custodian for all liquidator of Sublessee or a substantial any material part of its property; or SpanishRiverSublessee's properties.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxxB) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under In the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence event of any such event or events of default (regardless of the pendency of any proceeding which has or other breach might have the effect of preventing Sublessee from complying with the terms of this Lease by Tenantlease), whether enumerated in this Paragraph or not, Landlord shall have the option to pursue Sublessor at any time thereafter may exercise any one or more of the following remedies:
(i) Landlord Any rent (including charges collectible as additional rent) overdue for a period of more than ten (10) days shall have bear interest at the right"prime rate" (as hereinafter defined) plus three percent (3%) per annum until paid, at its electionand such interest shall be considered additional rent and shall be payable on demand. For purposes of this lease, the term "prime rate" shall mean the rate charged by National City Bank, Cleveland, Ohio, to cancel its best risk commercial borrowers on unsecured and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rentunmatured obligations maturing within 90 days.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Sublease (Ciao Cucina Corp)
Events of Default Remedies. The Mortgagee may enforce this Mortgage in any way it may decide at any time (in each case, acting at the direction of Holders of not less than a majority in aggregate principal amount of the Outstanding Securities) at which an Event of Default has occurred and is continuing by exercising any powers conferred on it by law or by this Mortgage and, in addition, may (in each case, acting at the direction of Holders of not less than a majority in aggregate principal amount of the Outstanding Securities):
(a) The following events shall be deemed to be events of default demand payment by Tenant under this Lease:
(i) Tenant shall fail to pay any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of the Indebtedness hereby secured, whereupon such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord payment shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder anything contained in the Note Documents or this Mortgage to the end contrary notwithstanding and without prejudice to any other rights and remedies of the initial term Mortgagee under the Note Documents or this Mortgage, provided, however, that if, before any sale of the Rig, all defaults shall have been remedied in a manner satisfactory to the Mortgagee (acting at the direction of the requisite Holders in accordance with the Indenture), the Mortgagee (acting at the direction of the requisite Holders in accordance with the Indenture) may waive such defaults by written notice to the Shipowner; but no such waiver shall extend to or affect any subsequent or other default or impair any rights and remedies consequent thereon;
(b) at any renewal termtime and as often as may be necessary, take any such action as may be necessary or advisable for the purpose of protecting the security created by this Mortgage and each and every expense or liability (including reasonable fees of counsel) so incurred by the Mortgagee in or about the protection of such security shall be repayable to it by the Shipowner promptly after demand. The Shipowner shall promptly execute and deliver to the Mortgagee such documents or cause promptly to be executed and delivered to the Mortgagee such documents, if applicableany, and shall promptly do and perform such acts, if any, as may be accelerated; howevernecessary or advisable to facilitate or expedite the protection, Landlord shall credit Tenant maintenance and enforcement of the security created by this Mortgage;
(c) exercise all the rights and remedies in foreclosure and otherwise given to mortgagees by Chapter 3 of the Maritime Xxx 0000 of the Republic of the Xxxxxxxx Islands as amended and all applicable laws of any other jurisdiction;
(d) take possession of the Rig, wherever the same may be, without prior demand and without legal process (when permissible under applicable law) and cause the Shipowner or other Person in possession thereof forthwith upon demand of the Mortgagee to surrender to the Mortgagee possession thereof as demanded by the Mortgagee;
(e) require that all documents and records relating to the insurance with respect to the Rig, including, but not limited to, those described in Section 12 of Article II (Insurance) hereof (the “Insurances”) (including details of and correspondence concerning outstanding claims) be forthwith delivered to the Mortgagee or its nominee;
(f) collect, recover and give a good discharge for any re-renting income moneys or claims in respect of the Rig and to take over or institute (if necessary using the name of the Shipowner) all such proceedings in connection therewith as may be necessary or advisable and to permit any brokers through whom collection or recovery is effected to charge the usual brokerage for doing so;
(g) settle, refer to arbitration, compromise and arrange any claims, accounts, disputes, questions and demands with or by any person relating to the PremisesRig;
(h) bring, after deducting Landlord's costs necessary prosecute, defend or abandon any action, suit or proceedings in relation to obtain the Rig;
(i) sell the Rig or any share or interest in it (with or without prior notice to the Shipowner or the benefit of any charter commitment), free from any claim by the Shipowner, by public auction or private contract, at such alternate source place and upon such terms as the Mortgagee in its absolute discretion may determine, with power to postpone any such sale and without being answerable for any loss occasioned by such sale or resulting from its postponement and with power to purchase the Rig itself and set off the sale price against all or any part of rentthe Indebtedness hereby secured;
(j) manage, charter, lease, insure, maintain and repair the Rig, and employ, sail or lay up the Rig upon such terms, in such manner and for such period as the Mortgagee, in its absolute discretion, deems expedient or advisable and enter into such arrangements in all respects as if the Mortgagee was the owner of the Rig and without being responsible for any loss thereby incurred;
(k) do anything incidental or conducive to the exercise of its rights as mortgagee of the Rig including discharging any cargo or equipment belonging to any person on board the Rig.
(iiil) Landlord may elect to enter and repossess the Premises and relet extent permitted by the Premises for Tenant's accountIndenture and/or this Mortgage, holding Tenant liable in damages for all expenses incurred in recover from the Shipowner on demand any such reletting and for any difference between losses as may be incurred by the amount Mortgagee in or about the exercise of rent received from such reletting and the rent due and payable powers vested in the Mortgagee under the term of this LeaseSection 1(j) above; and
(ivm) Landlord may enter upon to the Premises and do whatever Tenant is obligated to do under extent permitted by the Indenture and/or this Lease (and Tenant agrees to reimburse Land- lord Mortgage, recover from the Shipowner on demand for any all expenses, payments and disbursements (including fees and expenses which Landlord may incur of counsel) incurred by the Mortgagee in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one about or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior incidental to the exercise by it of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) powers vested in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordit hereunder.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Indenture (Transocean Ltd.)
Events of Default Remedies. a) The Any one or more of the following events shall be deemed to be events constitute an “Event of default by Tenant under this LeaseDefault” hereunder:
(i) Tenant A. Borrower shall fail default in the payment of principal or interest due according to pay the terms hereof or of any Rent or any other sums of money due hereunder Note, and such failure default shall continue for a period ten (10) days beyond the date on which such payment is due, except with respect to the final payment of principal and interest, for which there shall be no grace period.
B. Borrower shall default in the payment of fees or other amounts due and payable under this Agreement (other than those addressed in Section 6(A) hereof), under the Note or under any of the other Loan Documents, and such default continues for ten (10) days after the date such Rent of written notice thereof from Lender to Borrower.
C. Borrower or other sums is any Guarantor shall default in the due performance or observance of any covenant or obligation set forth in Sections 5(E), (with no notice being required G), (I), (J), (K), (N), (P), (Q), (R) or (S) of Landlord); hereinafter referred to as a "Monetary Default:;this Agreement.
(ii) Tenant D. Borrower or any Guarantor shall fail to comply with observe or perform any of the covenants, conditions or agreements to be observed or performed by it under this Agreement or any of the other Non-Monetary provision Loan Documents (other than those defaults covered by other subsections of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided Section 6) for a period of thirty (30) days prior after written notice specifying such default and requesting that it be remedied, given to such party by Lender.
E. Borrower or any Guarantor shall be in default in the performance of any covenant or obligation under any other document or instrument heretofore or hereafter executed and delivered to Lender by such Non-Monetary Default party in connection with any other loan or credit transaction(s) (other than those defaults covered by other subsections of this Section 6), and Tenant has failed to cure such Non-Monetary Default default is not cured within said thirty (30) days provided; howeverthe period, if any, allowed by such default cannot be cured within thirty documents for the cure thereof and will likely have a material adverse effect (30financial or otherwise) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy business, properties or assets of Borrower and Guarantors taken as a whole.
F. Borrower or any Guarantor shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any present or future state or federal bankruptcy act or under the bankruptcy laws any similar federal or an admission, answer or other responsive pleading consenting tostate law, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an shall be adjudicated as bankrupt or insolvent, or shall make a general assignment for the benefit of their creditors, within the meaning of the bankruptcy laws or Tenant consents shall be unable to the appointment of a receiver or custodian for all or a substantial part of its propertypay their debts generally as they become due; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of if a petition in bankruptcy or for reorganization under the bankruptcy laws, answer proposing the adjudication of Tenant Borrower or any Guarantor as a bankrupt, bankrupt or their reorganization under any present or future state or federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within sixty (60) days after the entry of a court order appointing filing thereof; or if a receiver, custodian trustee or trustee for all liquidator of Borrower or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of any Guarantor is appointed over all or substantially all of Tenant's propertythe assets of Borrower or any Guarantor, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denieddischarged within sixty (60) days of each appointment; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or if Borrower or any part of its interests Guarantor shall consent to or acquiesce in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 abovesuch appointment.
b) Upon the occurrence of G. Borrower or any event Guarantor shall be or events of default or other breach of this Lease by Tenantbecome insolvent, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
meaning (i) Landlord shall have Borrower or such Guarantor is engaged or about to engage in a business or transaction for which the rightremaining assets of Borrower or such Guarantor are unreasonably small in relation to the business or transaction or for which the property remaining with Borrower or such Guarantor is an unreasonably small capital, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right Borrower or such Guarantor has incurred or intends to declare all amounts and rents incur, or reasonably believes that it will incur, debts beyond its ability to pay such debts as they become due under this Lease for the remainder of the existing term (and any applicable extension whether at maturity or renewal thereof) to be immediately due and payableotherwise), and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect Borrower or such Guarantor is not “solvent” or is “insolvent”, as applicable within the meaning given those terms and similar terms under applicable laws relating to enter fraudulent transfers and repossess conveyances (provided, that this clause (iii) shall exclude any definition of “solvent” or “insolvent” which is defined as at fair valuations, the Premises sum of Borrower’s or such Guarantor’s debts and relet the Premises for Tenant's account, holding Tenant liable in damages for liabilities (including contingent liabilities) is less than all expenses incurred in any of Borrower’s or such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such actionGuarantor’s assets). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Loan Agreement (Nuverra Environmental Solutions, Inc.)
Events of Default Remedies. a) The Each of the following events shall be deemed to be events constitute an “Event of default by Tenant under this LeaseDefault” hereunder:
(a) if (i) Tenant shall fail to pay any Rent installment of interest or any other sums of money due hereunder and such failure shall continue for a period of ten principal is not paid within five (105) days after the date same is due, (ii) the entire Indebtedness of each Note is not paid on or before the Maturity Date (or if the Maturity Date has been accelerated, upon such Rent acceleration), or (iii) any other sums payment or charge due under the Note, this Mortgage or any other Loan Documents is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:not paid when due;
(b) if at any time any representation or warranty of Mortgagor made herein or in any guaranty, agreement, certificate, report, affidavit, owner’s affidavit, financial statement or other instrument furnished to Mortgagee shall be false or misleading in any respect;
(c) if any mortgagee under a mortgage on the Mortgaged Property, including, without limitation, the holder of the Second Mortgage or the Third Mortgage, whether superior or subordinate to this Mortgage (i) demands payment in full or otherwise accelerates any indebtedness of Mortgagor or (ii) Tenant shall fail otherwise commences the exercise of any remedy available to comply with such party under any other Non-Monetary provision such mortgage or related loan, including, without limitation, the Second Mortgage or the Third Mortgage;
(d) if Mortgagor fails to cure promptly any violation of any law or ordinance affecting the Mortgaged Property (provided that the foregoing provisions of this Lease clause (h) shall be subject to any right to contest such violation specifically granted to Mortgagor in Paragraph 5 of this Mortgage);
(e) if a default by Mortgagor under any of the other terms, covenants or any other agreement between Landlord conditions of the this Mortgage shall occur and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default canshall not be have been cured within thirty (30) days after notice from Mortgagee, provided that if such default is not susceptible of being cured within such thirty (30) day period and if Tenant is Mortgagor shall have commenced the cure of such default within such thirty (30) day period and thereafter diligently attempting pursues such cure to cure completion, then such Default, Landlord thirty (30) day period shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than extended for a period of ninety (90) days from the occurrence of the default, provided, further, that the notice and grace period set forth in this subparagraph (e) shall not apply to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution any other Event of Default expressly set forth in this Paragraph 12 or to any other process Event of law Default defined as such in any action against Tenant;
(iv) Tenant shall fail other Loan Document or to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy any other covenant or shall cease condition with respect to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files which a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing grace period is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably deniedexpressly provided elsewhere; or
(viiif) The adjudication if an Event of Tenant as a bankruptor; or
(ix) Tenant Default shall attempt to assign, transfer, sublet all or any part of its interests in occur under the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Loan Agreement. Upon the occurrence of any event or events Event of default or other breach of this Lease by TenantDefault, whether enumerated in this Paragraph or not, Landlord the Indebtedness shall have immediately become due at the option to pursue of Mortgagee. Upon the occurrence of any one or more Event of Default, Mortgagor shall pay interest on the entire unpaid principal balance of the following remedies:
(i) Landlord shall have Note at the rightDefault Rate, at its electionas defined in and provided for in the Note. Upon the occurrence of any Event of Default, Mortgagee may, to cancel and terminate this Lease and dispossess Tenant by summary proceedings the extent permitted under applicable law, elect to treat the fixtures included in the Mortgaged Property either as real property or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension as personal property, or renewal thereof) to be immediately due and payableboth, and thereupon all rents proceed to exercise such rights as apply thereto. With respect to any sale of real property included in the Mortgaged Property made under the powers of sale herein granted and other charges due hereunder conferred, Mortgagee may, to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be extent permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, include in such sale any fixtures included in the Mortgaged Property and the unenforceability of any portion hereof shall not thereby render unenforceable any other portionrelating to such real property.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a) The If any of the following events shall occur and be deemed to be events of default by Tenant under this Leasecontinuing:
(i) Tenant The Company and the Mortgagor Subsidiaries shall fail to pay any Rent principal when due of the Note in accordance with the terms thereof or hereof; or (ii) the Company and the Mortgagor Subsidiaries shall fail to pay any interest due on the Note or any other sums amount payable hereunder or under any other Transaction Document, thereby giving rise to a Default, and fail to cure such Default within five (5) days after any such interest or other amount becomes due in accordance with the terms thereof or hereof; provided, however, if any event described in this Section 8.1(a)(ii) shall occur and be continuing, it shall not constitute an Event of money due hereunder Default until and unless the Lender provides the Company with a written declaration that such event constitutes an Event of Default; or
(b) Any representation or warranty made or deemed made by the Company or any of its Subsidiaries herein or in any other Transaction Document or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with this Agreement shall prove to have been incorrect in any material respect on or as of the date made or deemed made; or
(c) The Company shall default in the observance or performance of any agreement contained in Section 7; or
(d) The Company or any Subsidiary shall default in the observance or performance of any other agreement contained in this Agreement (other than as provided in paragraphs (a) through (c) of this Section) or in any other Transaction Document, and such default shall continue unremedied for a period of thirty (30) days; or
(e) The Company shall fail to pay any obligations under the Foothill Loan Documents or any principal of or interest on any Unsecured Cash Flow Notes (whether at scheduled maturity or by required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such obligation under the Foothill Loan Documents or any Unsecured Cash Flow Notes; or
(f) Any Foothill Debt or any Unsecured Cash Flow Notes shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof; or
(g) Any Subsidiary of the Company shall fail to pay any principal of, or interest on, any Indebtedness or any Guarantee Obligation (other than any Guarantee Obligation created pursuant to any Transaction Document) in excess of $1,000,000, when due and payable (whether at scheduled maturity or by required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument under which such Indebtedness or Guarantee Obligation was created and, if such agreement or instrument permits the acceleration of the maturity of such Indebtedness or Guarantee Obligation as a result of such failure, such Indebtedness or Guarantee Obligation shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof; or any such Indebtedness or Guarantee Obligation shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity; or
(h) The Company shall (i) default in any payment of principal of or interest on any Indebtedness (other than the Notes the Foothill Debt, or any Unsecured Cash Flow Notes) or in the payment of any Guarantee Obligation in excess of $1,000,000, beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness or Guarantee Obligation was created; or (ii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or Guarantee Obligation or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or such Guarantee Obligation to become payable; or
(i) The Company or any of its Subsidiaries shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its assets, or the Company or any of its Subsidiaries shall make a general assignment for the benefit of its creditors, or (ii) there shall be commenced against the Company or any of its Subsidiaries any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of ten (10) days after the date such Rent 60 days, or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised there shall be taken on execution commenced against the Company or any of its Subsidiaries any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of law its assets which results in the entry of an order for any action against Tenant;
such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof, or (iv) Tenant the Company or any of its Subsidiaries shall fail to promptly move intotake any action in furtherance of, take possession of and operate or indicating its business on the Premises when the Premises are ready for occupancy consent to, approval of, or shall cease to do business in or vacate or abandon acquiescence in, any substantial portion of the Premises for more than ten acts set forth in clauses (10i), (ii), or (iii) consecutive days;
above, or (v) Tenant the Company or any of its Subsidiaries shall become insolvent generally not, or shall be unable to to, or shall admit in writing its inability to, pay its debts as they become due, Tenant files a petition provided that the Company or any of its Subsidiaries may admit in bankruptcy or writing that it is "insolvent" as such term is defined in, and for reorganization under purposes of, Section 108(a)(1)(8) of the bankruptcy laws or an admission, answer or other responsive pleading consenting toCode, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes the Company or any of its Subsidiaries shall cause to be reinstated the Reorganization Proceedings; or
(j) The Confirmation Order shall be reversed, withdrawn, modified (in any manner adverse to the Company or any of its Subsidiaries), or any rehearing shall be ordered with respect thereto by the Bankruptcy Court or by any court having jurisdiction over the Company; or
(i) There occurs one or more events or conditions described in Section 4.12 which individually or in the aggregate result in liability of the Company or any Commonly Controlled Entity in excess of $4,600,000; or the present value of all accrued benefits under each Single Employer Plan (based on the reasonable assumptions used by the independent actuary for such Plan for purposes of establishing the minimum funding requirements under Section 412 of the Code), as of the last annual valuation date, exceed the value of the assets of such plan allocable to such accrued benefits, individually or in the aggregate for all Single Employer Plans with respect to which the value of the assets exceed the present value of the accrued benefits, by more than $4,600,000; or
(l) One or more judgments or decrees shall be entered against the Company or any of its Subsidiaries involving in the aggregate a liability (not paid or fully covered by insurance) of $500,000 or more in the case of the Company or any of its Subsidiaries and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or
(i) The Subsidiary Guaranty or any Security Document shall cease, for any reason, to be in full force and effect or the Company or any of its Subsidiaries, as the case may be, party thereto shall so assert in writing, or (ii) any Security Document shall cease to be effective to grant a perfected Lien on the collateral described therein with the priority purported to be created thereby (other than as a result of any action or inaction on the part of the Lender or their agents or bailees or other than with respect to Collateral having an assignment for the benefit aggregate value of creditors$100,000 or less); or
(n) Other than Secured Creditor or any Affiliate of Secured Creditor and any Person acting in concert with Secured Creditor or any Affiliate of Secured Creditor, any Person that is not a transferee of Secured Creditor or of any Affiliate of Secured Creditor or two or more such Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization Securities and Exchange Commission under the bankruptcy lawsSecurities Exchange Act of 1934, the adjudication as amended) of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one % or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder outstanding Capital Stock of the existing term (and any applicable extension Company, or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end fewer than [ONE] member of the initial term and any renewal term, if applicable, Board of Directors of the Company shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more a designee of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable lawLender, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or than as a result of the breach Lender's failure to nominate a successor to a designee who has resigned or been removed for cause; or
(o) Any event or change shall occur that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect; or
(p) The Total Unsecured Claims shall exceed $1.5 Billion; then, and in any such event: (A) if such event is an Event of any promise Default specified in clause (i), (ii), (iv), (v) or inducement hereof(vi) of Section 8.1(i) above, whether automatically the principal amount of the Note (with accrued interest thereon) and all other amounts owing under this Agreement and the Note shall immediately become due and payable in this Lease or elsewhere. Tenant hereby waives such full, which amount shall accrue interest at the Default Rate as well before as after judgment, and the Lender and Collateral Agent shall have all rights and remedies given to the Lender and Collateral Agent pursuant to the Security Documents and all rights of termination a secured party, mortgagee and rescission pledgee under applicable law, all of which rights and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants thatcumulative and non-exclusive, prior to the exercise extent permitted by law; and (B) if such event is any other Event of any such remediesDefault, it will give the mortgagees on the Property written Lender may, by notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything default to the contrary contained hereinCompany, nothing shall prevent Tenant from maintaining or asserting any declare the principal amount of the foregoing remedies Note (or any with accrued interest thereon) and all other remedy) in a proceeding instituted by either party to enforce that party's rights amounts owing under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause Agreement and the Note to be due and payable in full, which amount shall accrue interest at the Default Rate as well before as after judgment, and the Lender and Collateral Agent shall have all rights and remedies given to the Lender and Collateral Agent pursuant to the Security Documents and all rights of action versus Landlorda secured party, mortgagee and pledgee under applicable law, all of which rights and remedies shall be cumulative and non-exclusive, to the extent permitted by law.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Secured Note Agreement (Atlantic Gulf Communities Corp)
Events of Default Remedies. If one or more of the following events (herein called “Events of Default”) shall occur and be continuing:
(a) The Either Obligor shall default in the payment when due of any principal or interest on any Loan or any other amount payable hereunder or under any other Loan Document within two (2) calendar days from the date such amount becomes due and payable (whether at stated maturity or otherwise), provided that such two (2) calendar days cure period is only granted to such Obligor by the Lender if such Obligor delivers to the Lender, on the date immediately following events such amount’s due date for payment, a written notification, by the legal representative of such Obligor declaring that such Obligor has sufficient cash, on that date, to honor is payment obligations due on such date, that the non-payment occurred due to an operational error no within such Obligor’s control for remedy and that the payment will be made on the immediately following day, and provided further that such two (2) calendar days cure period does not affect the Obligors’ obligation to pay Post-Default Interest or other amounts in accordance with Section 3.02(b) hereof; or
(b) Either Obligor shall be default in the observance or performance of its respective obligations hereunder or under any other Loan Document; or
(c) Either Obligor shall default in the payment of any principal of or interest on any Indebtedness (whether at stated maturity or by reason of mandatory or optional prepayment or otherwise) having an individual or aggregate principal amount of US$100,000,000 (or its equivalent in any other currency) or more, or any default or event of default shall occur, or any other condition shall exist, under any agreement or instrument entered into by either Obligor having an individual or aggregate principal amount of US$100,000,000 (or its equivalent in any other currency) or more, the effect of which default or other event or condition is to cause such Indebtedness to become due prior to its stated maturity; or
(d) Any representation, warranty or certification made by either of Obligor herein, or in any other Loan Document, certificate, financial statement or other document furnished to the Lender pursuant to the provisions hereof or thereof, shall prove to have been incorrect or misleading in any material respect when made or deemed to be events of default by Tenant under this Lease:made; or
(ie) Tenant Either Obligor shall fail to pay any Rent admit in ‘writing its inability to, or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenantbe generally unable to, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they such debts become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;; or
(vif) Tenant makes an assignment Either Obligor shall (i) apply for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents consent to the appointment of, or the taking of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22possession by, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian custodian, trustee, examiner or trustee for all liquidator of itself or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's its respective property, and within thirty (30ii) days thereafter such filing is not dismissedmake a general assignment for the benefit of its respective creditors, or such court order is not vacated (iii) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization (other than corporate reorganizations within the scope of Section 8.14 hereof), liquidation, dissolution, arrangement, winding-up or such assumption composition or sequestration is not released, readjustment of debts; or if (iv) take any corporate action for the Tenant does not bond off purpose of effecting any of the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably deniedforegoing; or
(viiii) The adjudication A proceeding or case shall be commenced against either Obligor without its application, consent, defense or contestation, in any court of Tenant as competent jurisdiction, seeking its reorganization, liquidation, dissolution, arrangement, winding-up or composition or readjustment of its respective debts, (ii) the appointment of a bankruptorreceiver, custodian, trustee, examiner, liquidator or the like of it or of all or substantially all of its respective property or (iii) similar relief in respect of it under any law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of its debts, and such proceeding or case shall continue undismissed, or an order, judgment or decree approving or ordering any of the foregoing shall be entered and continue unstayed and in effect, for a period of 30 or more days; or
(ixh) Tenant A Change in Control shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:occur; or
(i) Landlord Unappealable judgments or orders for the payment of money in an individual or aggregate amount equal to or exceeding US$100,000,000 (or its equivalent in any other currency) shall have be rendered against either Obligor and the rightsame shall remain undischarged and unstayed and in effect for a period of 30 or more days without a stay of execution, at its electionunless the same either: (i) is adequately bonded or covered by insurance where the surety or the insurer, as the case may be, has admitted liability in respect of such judgment(s), order(s), decree(s), award(s), settlement(s) and/or agreement(s) to cancel and terminate this Lease and dispossess Tenant by summary proceedings settle or other lawful means;
(ii) Landlord is being contested by appropriate proceedings properly instituted and diligently conducted and, in either case, such process is not being executed against any property of such Obligor; or
(j) Either Obligor shall have suffer a valid protest of bills (protesto legítimo de títulos) in an individual aggregate amount equal to or exceeding US$100,000,000 (or its equivalent in any other currency), which due and timely evidence of suspension or payment is not presented to the right Lender within 15 or more Business Days of the protest; or
(k) This Agreement or any other applicable Loan Document shall, at any time and for any reason, cease to declare all amounts be in full force and rents due effect, or shall he declared, by either Obligor or a Governmental Authority or in any judicial proceeding, to be null and void, or the validity or enforceability thereof shall be contested by either Obligor, or either Obligor or shall deny that it has any or further liability or obligation hereunder or thereunder; or
(l) Any Governmental Approval necessary to enable either Obligor to comply with or perform its obligations under this Lease Agreement or any other Loan Document shall be revoked, suspended, withdrawn or withheld or shall otherwise fail to be issued or remain in full force and effect; or
(m) Any Governmental Approval necessary to enable either Obligor to conduct its business is not renewed or is terminated prior to its established maturity date; or
(n) It is or becomes unlawful for either Obligor to perform any of its obligations under this Agreement or any other Loan Document. THEREUPON: in any such event, the remainder of Lender may by written notice to the existing term (Obligors declare the principal amount then outstanding of, and the accrued interest on, the Loan and all other amounts payable by the Obligors hereunder and under any applicable extension or renewal thereof) other Loan Document to be forthwith due and payable, whereupon such amounts shall be immediately due and payablepayable without presentment, demand, protest or other formalities of any kind, all of which are hereby expressly waived by the Obligors (provided, that in the case of an Event of Default of the kind described in clauses (e), (f) and (g) above, the principal amount then outstanding of, and thereupon the accrued interest on, the Loan and all rents other amounts payable hereunder shall automatically forthwith become due and payable) and the Lender may, exercise all rights and remedies available to it under this Agreement and any other Loan Document, including but not limited to, require the unwinding and termination of the corresponding portion of the Hedge Transaction, in each case in form and substance satisfactory to the Lender, and at the Obligors’ full cost and expense, and to the charge of any and all amounts pursuant to Section 5.01(a) hereof, and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible as described by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a) The Each of the following events after any applicable grace or cure periods shall be deemed to be events of default by Tenant under this Leaseconstitute an "EVENT OF DEFAULT" hereunder:
(a) if (i) Tenant shall fail Trustor fails to pay any Rent amount under the Payment Guaranty in accordance with the terms and provisions thereof following any applicable grace periods, or (ii) any payment or charge due under this Deed of Trust or any other sums Loan Documents is not paid when due;
(b) if any Taxes payable directly to the billing authority by Trustor are not paid before interest becomes payable on the amount due or a penalty is assessed (provided that the foregoing provisions of money due hereunder this clause (b) shall be subject to the right to contest Taxes granted to Trustor in PARAGRAPH 4(b) of this Deed of Trust, but only for so long as the conditions in PARAGRAPH 4(b) of this Deed of Trust remain satisfied); METRO SQUARE SHOPPING CENTER LOAN NO. 6518303
(c) if the Policies are not kept in full force and such failure shall continue for a period of effect and are not delivered to Beneficiary when required hereunder, or if the Policies are not delivered to Beneficiary within ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:request by Beneficiary;
(d) if any of the provisions of PARAGRAPHS 7, 9, 19 or 39 herein are violated or not complied with;
(e) if any of the events described in PARAGRAPH 41 shall occur;
(f) if any representation or warranty of Trustor or any Guarantor made herein or in any guaranty, agreement, certificate, report, affidavit, owner's affidavit, financial statement or other instrument furnished to Beneficiary shall be materially false or misleading in any respect when made;
(g) if any beneficiary under a deed of trust on the Trust Property, whether superior or subordinate to this Deed of Trust (i) demands payment in full or otherwise accelerates any indebtedness of Trustor or (ii) Tenant shall fail otherwise commences the exercise of any remedy available to comply with such party under any such deed of trust or other Non-Monetary provision loan document related to such deed of trust;
(h) if Trustor fails to cure promptly any violation of any law or ordinance affecting the Trust Property (provided that the foregoing provisions of this Lease clause (h) shall be subject to any right to contest such violation specifically granted to Trustor in PARAGRAPH 8 of this Deed of Trust);
(i) if any Other Guaranty (as hereinafter defined) is terminated or any event or condition occurs which, in the sole judgment of Beneficiary, may materially impair the ability of any Other Guarantor to perform its obligations under any Other Guaranty or any Other Guarantor attempts to withdraw, cancel or disclaim any Other Guaranty;
(j) if a default by Trustor under any of the other terms, covenants or conditions of the Payment Guaranty, this Deed of Trust or any other agreement between Landlord Loan Document shall occur and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default canshall not be have been cured within thirty (30) days after notice from Beneficiary, provided that if such default is not susceptible of being cured within such thirty (30) day period and if Tenant is Trustor shall have commenced the cure of such default within such thirty (30) day period and thereafter diligently attempting pursues such cure to cure completion, then such Default, Landlord thirty (30) day period shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than extended for a period of ninety (90) days from the occurrence of the default, provided, further, that the notice and grace period set forth in this subparagraph (j) shall not apply to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution any other Event of Default expressly set forth in this PARAGRAPH 20 or to any other process Event of law Default defined as such in any action against Tenant;
(iv) Tenant shall fail other Loan Document or to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy any other covenant or shall cease condition with respect to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files which a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing grace period is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably deniedexpressly provided elsewhere; or
(viiik) The adjudication if any of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
bPARAGRAPHS 42(d) and/or PARAGRAPH 42(f) are violated or not complied with, and/or if any representation or warranty in PARAGRAPH 42(b) and/or 42(c) shall prove false or misleading in any respect and/or if any of the events described in PARAGRAPH 42(e) shall occur. METRO SQUARE SHOPPING CENTER LOAN NO. 6518303 Upon the occurrence of any event or events Event of default or other breach of this Lease by TenantDefault, whether enumerated in this Paragraph or not, Landlord the Indebtedness shall have immediately become due at the option to pursue of Beneficiary. Upon the occurrence of any one or more Event of the following remedies:
(i) Landlord shall have the rightDefault, at its electionBeneficiary may, to cancel and terminate this Lease and dispossess Tenant by summary proceedings the extent permitted under applicable law, elect to treat the fixtures included in the Trust Property either as real property or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension as personal property, or renewal thereof) to be immediately due and payableboth, and thereupon all rents proceed to exercise such rights as apply thereto. With respect to any sale of real property included in the Trust Property made under the powers of sale herein granted and other charges due hereunder conferred, Beneficiary may, to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be extent permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, include in such sale any fixtures included in the Trust Property and the unenforceability of any portion hereof shall not thereby render unenforceable any other portionrelating to such real property.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. (a) The Each of the following events shall be deemed to be events constitute an “Event of default by Tenant Default” under this LeaseAgreement:
(i) Tenant Seller or Guarantor shall fail to pay any Rent repurchase (A) Purchased Assets upon the applicable Repurchase Date or any other sums of money due hereunder and such failure shall continue for (B) a period of ten (10) days after the date such Rent or other sums Purchased Asset that is due (no longer an Eligible Asset in accordance with no notice being required of LandlordArticle 12(c); hereinafter referred to as a "Monetary Default:;
(ii) Tenant Buyer shall fail to comply with receive on any other Non-Monetary provision Remittance Date the accreted value of the Price Differential (less any amount of such Price Differential previously paid by Seller to Buyer) (including, without limitation, in the event the Income paid or distributed on or in respect of the Purchased Assets is insufficient to make such payment and Seller does not make such payment or cause such payment to be made) (except that such failure shall not be an Event of Default by Seller if sufficient Income, including Principal Proceeds which would otherwise be remitted to Seller pursuant to Article 5 of this Lease or any other agreement between Landlord Agreement, is on deposit in the Depository Account and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of the Depository fails to remit such Non-Monetary Default and Tenant has failed funds to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultBuyer);
(iii) The leasehold hereunder demised Seller or Guarantor shall be taken on execution fail to cure any Margin Deficit, to the extent such Margin Deficit equals or other process exceeds the Minimum Transfer Amount, in accordance with Article 4 of law in any action against Tenantthis Agreement;
(iv) Tenant Seller or Guarantor shall fail to promptly move intomake any payment not otherwise addressed under this Article 12(a) owing to Buyer that has become due, take possession whether by acceleration or otherwise under the terms of and operate its business on this Agreement, the Premises when Pledge Agreement, the Premises are ready for occupancy Guarantee Agreement or shall cease to do business in or vacate or abandon any substantial portion other Transaction Document, which failure is not remedied within five (5) Business Days of the Premises for more than ten (10) consecutive daysnotice thereof;
(v) Tenant Seller shall become insolvent default in the observance or unable performance of its obligation in Article 7(c) or any agreement contained in Articles 10 or 11 of this Agreement and such default shall not be cured within five (5) Business Days after notice by Buyer to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy lawsSeller thereof;
(vi) Tenant makes an assignment Act of Insolvency occurs with respect to Seller or Guarantor;
(vii) any employee with a title equivalent or more senior to that of “Senior Vice President” of Seller or Guarantor shall admit in writing to any Person in an external communication (whether electronic or otherwise) its inability to, or its intention not to, perform any of its material obligations hereunder;
(viii) the Custodial Agreement, the Depository Agreement, the Pledge Agreement, the Guarantee Agreement or any other Transaction Document or a replacement therefor acceptable to Buyer shall for whatever reason be terminated or cease to be in full force and effect, or the benefit enforceability thereof shall be contested by Seller;
(ix) Seller or Guarantor shall be in default under (A) any Indebtedness of creditorsSeller or Guarantor, within as applicable, which default (1) involves the meaning failure to pay a matured obligation in excess of $250,000, with respect to Seller or $15,000,000, with respect to Guarantor or (2) permits the acceleration of the bankruptcy laws maturity of obligations by any other party to or Tenant consents beneficiary with respect to such Indebtedness, if the aggregate amount of the Indebtedness in respect of which such default or defaults shall have occurred is at least $250,000, with respect to Seller or $15,000,000, with respect to Guarantor; or (B) any other material contract to which Seller or Guarantor is a party, which default (1) involves the failure to pay a matured obligation if the aggregate amount of such obligation is greater than $250,000 with respect to Seller or $15,000,000 with respect to Guarantor, or (2) permits the acceleration of the maturity of obligations by any other party to or beneficiary of such contract if the aggregate amount of such obligations is greater than $250,000, with respect to Seller or $15,000,000, with respect to Guarantor;
(x) Seller or Guarantor shall be in default under any Indebtedness of Seller or Guarantor, as applicable, to Buyer or any of its present or future Affiliates, which default (A) involves the failure to pay a matured obligation, or (B) permits the acceleration of the maturity of obligations by any other party to or beneficiary with respect to such Indebtedness;
(xi) (A) Seller or an ERISA Affiliate shall engage in any non-exempt “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan that is not exempt from such Sections of ERISA and the Code, (B) any material “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan or any Lien in favor of the Pension Benefit Guaranty Corporation or a Plan shall arise on the assets of Seller or any ERISA Affiliate, (C) a “Reportable Event” (as referenced in Section 4043(b)(3) of ERISA) shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Plan, which Reportable Event (as so defined) or commencement of proceedings or appointment of a receiver trustee is, in the reasonable opinion of Buyer, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (D) any Plan shall terminate for purposes of Title IV of ERISA, (E) Seller or custodian any ERISA Affiliate shall, or in the reasonable opinion of Buyer is likely to, incur any liability in connection with a withdrawal from, or the insolvency or reorganization of, a Multiemployer Plan or (F) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (A) through (F) above, such event or condition, together with all other such events or conditions, if any, could reasonably be expected to have a Material Adverse Effect;
(xii) either (A) the Transaction Documents shall for all any reason not cause, or shall cease to cause, Buyer to be the owner free of any adverse claim of any of the Purchased Assets, and such condition is not cured by Seller within three (3) Business Days after notice thereof from Buyer to Seller, or (B) if a substantial Transaction is recharacterized as a secured financing, and the Transaction Documents with respect to any Transaction shall for any reason cease to create and maintain a valid first priority security interest in favor of Buyer in any of the Purchased Assets;
(xiii) an “Event of Default,” “Termination Event,” “Potential Event of Default” or other default or breach, however defined therein, occurs under any Hedging Transaction on the part of its property; Seller, or SpanishRiver.Manchester.September 22the counterparty to Seller on any such Hedging Transaction with a Qualified Hedge Counterparty ceases to be a Qualified Hedge Counterparty, 1997.ajm Initials: ----- ----- Page 00 that is otherwise not cured within any applicable cure period thereunder or, if no cure period exists thereunder, which is not cured by Seller within three (Xxxxxx3) (Xxxxxxxx)Business Days after notice thereof from an Affiliated Hedge Counterparty or Qualified Hedge Counterparty to Seller;
(xxxxiv) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy lawsany governmental, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissedregulatory, or such court order is not vacated self-regulatory authority shall have taken any action to suspend or such assumption or sequestration is not releasedterminate the rights, privileges, or if operations of Seller, which suspension has a Material Adverse Effect in the Tenant does not bond off determination of Buyer;
(xv) any other representation (other than the risk to Landlord to Landlord's reasonable satisfactionrepresentations and warranties of Seller set forth in Exhibit VI and Article 9(b)(viii)(D), which shall not be unreasonably denied; orconsidered an Event of Default if incorrect or untrue in any material respect) made by Seller to Buyer shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated and such incorrect or untrue representation exists and continues unremedied for ten (10) calendar days after the earlier of receipt of written notice thereof from Buyer or Seller’s Knowledge of such incorrect or untrue representation;
(viiixvi) The adjudication a final non-appealable judgment by any competent court in the United States of Tenant as America for the payment of money (A) rendered against Seller in an amount greater than $250,000 or (B) rendered against Guarantor in an amount greater than $15,000,000, and remained undischarged or unpaid for a bankruptor; orperiod of sixty (60) days, during which period execution of such judgment is not effectively stayed by bonding over or other means reasonably acceptable to Buyer;
(ixxvii) Tenant if Seller shall attempt breach or fail to assignperform any of the terms, transfercovenants, sublet all obligations or any conditions of this Agreement, other than as specifically otherwise referred to in this definition of “Event of Default”, and such breach or failure to perform is not remedied within the earlier of five (5) Business Days after (a) delivery of notice thereof to Seller by Buyer, or (b) Knowledge on the part of Seller of such breach or failure to perform; provided, that, if Buyer determines, in its interests sole discretion, that any such breach is capable of being cured and Seller is diligently and continuously pursuing such a cure in good faith but is not able to do so on a timely basis, Seller shall have an additional period of time, not to exceed thirty (30) additional days, within which to complete such cure; provided further, that such additional 30-day period shall not apply to any breach of or other failure to comply with the terms of Article 10(k) of this Agreement;
(xviii) the Guarantee Agreement or a replacement therefor acceptable to Buyer shall for whatever reason be terminated or cease to be in full force and effect, or the enforceability thereof shall be contested by Guarantor or Seller; and
(xix) the breach by Guarantor of any material term or condition set forth in the Premises Guarantee Agreement or of any representation, warranty, certification or covenant made or deemed made in this Lease without Landlord's prior written consent subject the Guarantee Agreement by Guarantor or if any certificate furnished by Guarantor to Buyer pursuant to the provisions hereof or thereof or any information with respect to the Purchased Assets furnished in writing on behalf of Section 19 aboveGuarantor shall prove to have been false or misleading in any respect as of the time made or furnished; provided, however, that any such default, failure to perform or breach shall not constitute an Event of Default if Guarantor cures such default or failure to perform, as the case may be, within the grace notice and/or cure period, if any, provided under the applicable agreement.
(b) Upon After the occurrence and during the continuance of any event or events an Event of default or other breach Default, Seller hereby appoints Buyer as attorney-in-fact of Seller for the purpose of carrying out the provisions of this Lease by TenantAgreement and taking any action and executing or endorsing any instruments that Buyer may deem necessary or advisable to accomplish the purposes hereof, whether enumerated in this Paragraph or notwhich appointment as attorney-in-fact is irrevocable and coupled with an interest. If an Event of Default shall occur and be continuing with respect to Seller, Landlord shall have the option to pursue any one or more of the following remediesrights and remedies shall be available to Buyer:
(i) Landlord At the option of Buyer, exercised by written notice to Seller (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the rightoccurrence of an Act of Insolvency with respect to Seller or Guarantor), at its electionthe Repurchase Date for each Transaction hereunder shall, if it has not already occurred, be deemed immediately to cancel and terminate this Lease and dispossess Tenant by summary proceedings occur (the date on which such option is exercised or other lawful means;deemed to have been exercised being referred to hereinafter as the “Accelerated Repurchase Date”).
(ii) Landlord If Buyer exercises or is deemed to have exercised the option referred to in Article 12(b)(i) of this Agreement:
(A) Seller’s obligations hereunder to repurchase all Purchased Assets shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be become immediately due and payablepayable on and as of the Accelerated Repurchase Date; and
(B) to the extent permitted by applicable law, the Repurchase Price with respect to each Transaction (determined as of the Accelerated Repurchase Date) shall be increased by the aggregate amount obtained by daily application of, on a 360 day per year basis for the actual number of days during the period from and including the Accelerated Repurchase Date to but excluding the date of payment of the Repurchase Price (as so increased), (x) the Pricing Rate for such Transaction multiplied by (y) the Repurchase Price for such Transaction (decreased by (I) any amounts actually remitted to Buyer by the Depository or Seller from time to time pursuant to Article 5 of this Agreement and applied to such Repurchase Price, and thereupon (II) any amounts applied to the Repurchase Price pursuant to Article 12(b)(iii) of this Agreement); and
(C) the Custodian shall, upon the request of Buyer, deliver to Buyer all rents instruments, certificates and other charges due hereunder documents then held by the Custodian relating to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rentPurchased Assets.
(iii) Landlord Upon the occurrence and during the continuance of an Event of Default with respect to Seller, Buyer may elect (A) immediately sell on a servicing released basis, at a public or private sale in a commercially reasonable manner and at such price or prices as Buyer may deem satisfactory any or all of the Purchased Assets, and/or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Assets, to enter give Seller credit for such Purchased Assets in an amount equal to the Market Value of such Purchased Assets against the aggregate unpaid Repurchase Price for such Purchased Assets and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable other amounts owing by Seller under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action)Transaction Documents. All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability The proceeds of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun disposition of Purchased Assets effected pursuant to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.this
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Samples: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Events of Default Remedies. a) The Each of the following events after any applicable grace or cure periods shall be deemed to be events of default by Tenant under this Leaseconstitute an "EVENT OF DEFAULT" hereunder:
(a) if (i) Tenant shall fail to pay any Rent installment of interest is not paid within five (5) days after the same is due, (ii) the entire Indebtedness is not paid on or before the Maturity Date (or if the Maturity Date has been accelerated, upon such acceleration), or (iii) any other payment or charge due under the Note, this Mortgage or any other sums Loan Documents is not paid when due;
(b) if any Taxes payable directly to the billing authority by Mortgagor are not paid before interest becomes payable on the amount due or a penalty is assessed (provided that the foregoing provisions of money due hereunder this clause (b) shall be subject to the right to contest Taxes granted to Mortgagor in PARAGRAPH 4(b) of this Mortgage, but only for so long as the conditions in PARAGRAPH 4(b) of this Mortgage remain satisfied);
(c) if the Policies are not kept in full force and such failure shall continue for a period of effect and are not delivered to Mortgagee when required hereunder, or if the Policies are not delivered to Mortgagee within ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:written request by Mortgagee;
(d) if any of the provisions of PARAGRAPHS 7, 9, 19 or 39 herein are violated or not complied with;
(e) if any of the events described in PARAGRAPH 41 shall occur;
(f) if at any time any representation or warranty of Mortgagor or any Guarantor made herein or in any guaranty, agreement, certificate, report, affidavit, owner's Loan No. 6518291 affidavit, financial statement or other instrument furnished to Mortgagee shall be materially false or misleading in any respect;
(g) if any mortgagee under a mortgage on the Mortgaged Property, whether superior or subordinate to this Mortgage (i) demands payment in full or otherwise accelerates any indebtedness of Mortgagor or (ii) Tenant shall fail otherwise commences the exercise of any remedy available to comply with such party under any other Non-Monetary provision Loan Document;
(h) if Mortgagor fails to cure promptly any violation of any law or ordinance affecting the Mortgaged Property (provided that the foregoing provisions of this Lease clause (h) shall be subject to any right to contest such violation specifically granted to Mortgagor in PARAGRAPH 8 of this Mortgage);
(i) if any Guaranty (as hereinafter defined) is terminated or any event or condition occurs which, in the sole judgment of Mortgagee, may impair the ability of any Guarantor to perform its obligations under any Guaranty or any Guarantor attempts to withdraw, cancel or disclaim any Guaranty;
(j) if a default by Mortgagor under any of the other terms, covenants or conditions of the Note, this Mortgage or any other agreement between Landlord Loan Document shall occur and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default canshall not be have been cured within thirty (30) days after notice from Mortgagee, provided that if such default is not susceptible of being cured within such thirty (30) day period and if Tenant is Mortgagor shall have commenced the cure of such default within such thirty (30) day period and thereafter diligently attempting pursues such cure to cure completion, then such Default, Landlord thirty (30) day period shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than extended for a period of ninety (90) days from the occurrence of the default, provided, further, that the notice and grace period set forth in this subparagraph (j) shall not apply to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution any other Event of Default expressly set forth in this PARAGRAPH 20 or to any other process Event of law Default defined as such in any action against Tenant;
(iv) Tenant shall fail other Loan Document or to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy any other covenant or shall cease condition with respect to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files which a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing grace period is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably deniedexpressly provided elsewhere; or
(viiik) The adjudication if any of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
bPARAGRAPHS 42(d) and/or PARAGRAPH 42(f) are violated or not complied with, and/or if any representation or warranty in PARAGRAPH 42(b) and/or 42(c) shall prove false or misleading in any respect and/or if any of the events described in PARAGRAPH 42(e) shall occur. Upon the occurrence of any event or events Event of default or other breach of this Lease by TenantDefault, whether enumerated in this Paragraph or not, Landlord the Indebtedness shall have immediately become due at the option to pursue of Mortgagee. Upon the occurrence of any one or more Event of Default, Mortgagor shall pay interest on the entire unpaid principal balance of the following remedies:
(i) Landlord shall have Note, as defined in and provided for in the rightNote. Upon the occurrence of any Event of Default, at its electionMortgagee may, to cancel and terminate this Lease and dispossess Tenant by summary proceedings the extent permitted under applicable law, elect to treat the fixtures included in the Mortgaged Property either as real property or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension as personal property, or renewal thereof) to be immediately due and payableboth, and thereupon all rents proceed to exercise such rights as apply thereto. With respect to any sale of real property included in the Mortgaged Property made under the powers of sale herein granted and other charges due hereunder conferred, Mortgagee may, to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action)extent Loan No. All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be 6518291 permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, include in such sale any fixtures included in the Mortgaged Property and the unenforceability of any portion hereof shall not thereby render unenforceable any other portionrelating to such real property.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. (a) The following events shall be deemed to be events of default by Tenant under this Lease:
(i) Tenant shall fail to pay any Rent or any other sums sum of money due hereunder and such failure shall continue for a period of ten TEN (10) days after the date such Rent or other sums is due DAYS AFTER TENANT'S RECEIPT OF NOTICE THEREOF FROM LANDLORD; PROVIDED, HOWEVER, THAT LANDLORD SHALL NOT BE REQUIRED TO PROVIDE TENANT WITH THE NOTICE AND TEN-DAY PERIOD SET FORTH IN THIS SUBPARAGRAPH MORE THAN THREE (with no notice being required of Landlord)3) TIMES DURING ANY LEASE YEAR, AND THE FOURTH AND EACH SUBSEQUENT FAILURE TO TIMELY PAY SUCH SUMS DURING ANY LEASE YEAR SHALL IMMEDIATELY CONSTITUTE AN EVENT OF DEFAULT HEREUNDER; hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and TenantTenant not requiring the payment of money, if applicableall of which terms, after Landlord has provided provisions and covenants shall be deemed material, and such failure shall continue for a period of thirty (30) days prior (or immediately if the failure involves a hazardous condition) after written notice of such Non-Monetary Default and Tenant has failed default is delivered to cure such Non-Monetary Default within said thirty Tenant; PROVIDED, THAT IN THE EVENT ANY SUCH FAILURE IS NOT REASONABLY SUSCEPTIBLE OF CURE WITHIN SUCH THIRTY (30) days provided; however30)-DAY PERIOD, if such default cannot be cured within thirty TENANT SHALL HAVE A REASONABLE TIME TO CURE SUCH FAILURE (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety NOT TO EXCEED NINETY (90) days to cure a Non-Monetary default;
DAYS TOTAL), PROVIDED TENANT COMMENCES CURE AS SOON AS IS REASONABLY POSSIBLE, AND PROSECUTES SUCH CURE DILIGENTLY TO COMPLETION; (iii) The the leasehold hereunder demised shall be taken on execution execution, levied upon or attached or other process of law in any action against Tenant;
; (iv) Tenant notifies Landlord, at any time prior to the Commencement Date, that Tenant does not intend to take occupancy of the Premises upon the Commencement Date or Tenant shall fail to promptly move into, into and take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or in, vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive daysPremises;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Assembly/Light Manufacturing/Office Lease (Triton Network Systems Inc)
Events of Default Remedies. a) The Paragraph 11 of the Agreement is hereby deleted and replaced with the following events provisions of this Section 14 and the provisions of Section 15 of this Annex I below: Each of the following shall be deemed to be events constitute an "Event of default by Tenant Default" under the Agreement and this LeaseAnnex I:
(i) Tenant Either (A) the Transaction Documents shall fail for any reason not cause, or shall cease to pay cause, Buyer to be the owner free of any Rent adverse claim of any of the Portfolio Collateral, or any other sums of money due hereunder and such failure shall continue for (B) if a period of ten (10) days after the date such Rent or other sums Transaction is due (with no notice being required of Landlord); hereinafter referred to recharacterized as a "Monetary Default:secured financing, the Transaction Documents with respect to any Transaction shall for any reason cease to create a valid first priority security interest in favor of Buyer in any of the Purchased Loans;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease in the event that the Buyer or any other agreement between Landlord of its Affiliates is a party to any Hedging Transaction and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice a default or breach occurs thereunder on the part of Seller or any of its Affiliates which results in the early termination of such Non-Monetary Default and Tenant has failed to Hedging Transaction or otherwise is not cured within the cure such Non-Monetary Default within said thirty (30) days provided; however, if period for such default cannot be cured within thirty (30) days or breach provided under the terms and if Tenant is diligently attempting to cure conditions of such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultHedging Transaction;
(iii) The leasehold hereunder demised shall failure of Buyer to receive on any Remittance Date the accreted value of the Price Differential (less any amount of such Price Differential previously paid by Seller to Buyer) (including, without limitation, in the event the Income paid or distributed on or in respect of the Purchased Loans into the Cash Management Account is insufficient to make such payment and Seller does not make such payment or cause such payment to be taken on execution or other process of law in any action against Tenantmade);
(iv) Tenant shall fail failure of Buyer to promptly move into, take possession of and operate its business receive the Repurchase Price for any Purchased Loans on the Premises when date the Premises are ready for occupancy same is due under the Agreement (whether on the Repurchase Date, Early Repurchase Date or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive daysotherwise as provided herein);
(v) Tenant shall become insolvent or unable failure of Seller to pay its debts as they make any other payment (i.e., a payment of a type not specified in any other clause of this Section 14) owing to Buyer which has become due, Tenant files a petition in bankruptcy whether by acceleration or for reorganization otherwise under the bankruptcy laws terms of the Agreement which failure is not remedied within the applicable period (in the case of a failure pursuant to Paragraph 4) or an admission, answer or five Business Days after written notice from Buyer to Seller (in the case of any other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy lawssuch failure);
(vi) Tenant makes any governmental, regulatory, or self-regulatory authority shall have taken any action to remove, limit, restrict, suspend or terminate the rights, privileges, or operations of Seller, which suspension has a material adverse effect on the financial condition or business operations of Seller, taken as a whole;
(vii) Buyer shall have determined, in the exercise of its good faith business judgment, (A) that there has been a material adverse change in the business, operations, corporate structure or financial condition, creditworthiness or prospects, taken as a whole, of either of Seller or Sponsor; (B) that Seller or Sponsor will not meet or has breached any of its obligations under any Transaction pursuant to any of the Transaction Documents; or (C) that a material adverse change in the financial or legal condition of Seller or Sponsor may occur due to the pendency or threatened pendency of a material legal action against Seller or Sponsor;
(viii) a Change of Control shall have occurred;
(ix) an assignment Act of Insolvency shall have occurred with respect to Seller or Sponsor;
(x) any representation made by Seller to Buyer shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated;
(xi) Sponsor shall have defaulted or failed to perform under the Guaranty;
(xii) a final judgment or judgments by any competent court(s) in the United States of America for the benefit payment of creditors, within money in an aggregate amount (as to all such outstanding judgments) greater than $250,000 (in the meaning case of Seller) or $5,000,000 (in the bankruptcy laws case of Sponsor) shall have been rendered against Seller or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's propertySponsor, and within remained undischarged or unpaid for a period of thirty (30) days thereafter days, during which period execution of such filing judgment is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful meanseffectively stayed;
(iixiii) Landlord if Seller shall have the right breach or fail to declare all amounts and rents due under this Lease for the remainder perform any of the existing term (and any applicable extension terms, covenants, obligations or renewal thereof) conditions of the Agreement, other than as specifically otherwise referred to be immediately due and payablein this definition of "Event of Default", and thereupon all rents and other charges due hereunder such breach or failure to the end of the initial term and perform is not remedied within five (5) Business Days after notice thereof to Seller from Buyer or its successors or assigns or, as to any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary breach or failure to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses perform which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall by its nature cannot be liable for any damages resulting to remedied with the Tenant from such action). All such remedies payment of Land- lord shall be cumulative money and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more which is capable of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder being cured within thirty (30) days after the receipt occurrence such breach or failure but not within five (5) Business Days, such longer period of time as is reasonably necessary to effectuate a cure, not to exceed thirty (30) days after notice of such breach or failure is given to Seller by Landlord Buyer, so long as Seller is diligently acting to remedy such breach or failure during such period of written notice from Tenant cure;
(xiv) Buyer shall have determined, in the exercise of its good faith business judgment, that Seller's Differential Coverage Ratio is less than 1.50:1.00;
(xv) if the ratio of the alleged Consolidated Total Indebtedness of Sponsor to the Consolidated Tangible Net Worth of Sponsor shall exceed the Maximum Leverage Ratio;
(xvi) if the Consolidated Tangible Net Worth of Sponsor shall at any time be less than the Minimum Net Worth Amount;
(xvii) Seller or Sponsor shall have defaulted or failed to perform under any other note, indenture, loan agreement, guaranty, swap agreement or any other contract, agreement or transaction to which it is a party, which default (A) involves the failure to perform and does not continue SpanishRiver.Manchester.September 22pay a matured obligation or matured obligations aggregating (among all such matured obligations in excess of $250,000 (in the case of Seller) or $5,000,000 (in the case of Sponsor), 1997.ajm Initials: ----- ----- Page 15 or (TenantB) (Landlord) permits the acceleration of the maturity of obligations by any other party to pursue the cure thereof. Except as otherwise specifically provided in this Leaseor beneficiary of such note, in no event indenture, loan agreement, guaranty, swap agreement or other contract agreement or transaction, or Seller or Sponsor shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to breach any covenant or agreement contained condition, shall fail to perform, admits its inability to perform or state its intention not to perform its obligations under any Transaction or in this Lease or as a result of the breach respect of any promise repurchase agreement, reverse repurchase agreement, securities contract or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of derivative transaction with any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a) The Each of the following events shall be deemed to be events an Event of default by Tenant under this LeaseDefault hereunder:
(ia) Tenant shall fail Failure of the Guarantor to pay any Rent Guaranteed Obligations upon receipt of demand by the Trustee or the Issuer to the Guarantor given in accordance with Section 15.
(b) Failure of the Guarantor to observe or perform any of the other sums of money due covenants, conditions or agreements hereunder and such failure shall continue for a period of ten sixty (1060) days after notice (unless the date such Rent Guarantor and the Trustee and, with respect to payments due the Issuer under Sections 4.2(e), 7.3, 9.2 or other sums is due (with no notice being required 9.3 of Landlord); hereinafter referred the Loan Agreement, the Issuer shall agree in writing to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice an extension of such Non-Monetary Default time prior to its expiration), specifying such failure and Tenant has failed requesting that it be remedied, given by the Trustee or the Issuer to cure the Guarantor; provided, that if said default is such Non-Monetary Default within said thirty (30) days provided; however, if such default that it can be corrected but cannot be cured corrected within thirty (30) days the applicable period, it shall not constitute an Event of Default if corrective action is instituted by the Guarantor within the applicable period and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;pursued until the default is corrected.
(iiic) The leasehold hereunder demised dissolution or liquidation of the Guarantor or the filing by the Guarantor of a voluntary petition in bankruptcy, or failure by the Guarantor promptly to cause to be lifted any execution, garnishment or attachment of such consequence as will impair the Guarantor’s ability to carry on its obligations hereunder, or the entry of any order or decree granting relief in any involuntary case commenced against the Guarantor under any present or future federal bankruptcy act or any similar federal or state law, or a petition for such an order or decree shall be taken on execution or other process of law filed in any action against Tenant;
(iv) Tenant court and such petition shall fail to promptly move intonot be discharged or denied within ninety days after the filing thereof, take possession of and operate or if the Guarantor shall admit in writing its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable inability to pay its debts generally as they become due, Tenant files or a petition receiver, trustee or liquidator of the Guarantor shall be appointed in bankruptcy any proceeding brought against the Guarantor and shall not be discharged within ninety days after such appointment or for reorganization under if the bankruptcy laws Guarantor shall consent to or an admission, answer or other responsive pleading consenting toacquiesce in such appointment, or requesting the relief afforded assignment by the bankruptcy laws;
(vi) Tenant makes an assignment Guarantor for the benefit of its creditors, within or the meaning entry by the Guarantor into an agreement of composition with its creditors, or a bankruptcy, insolvency or similar proceeding shall be otherwise initiated by or against the Guarantor under any applicable bankruptcy, reorganization or analogous law as now or hereafter in effect and if initiated against the Guarantor shall remain undismissed (subject to no further appeal) for a period of ninety days; provided, the term “dissolution or liquidation of the bankruptcy laws Guarantor,” as used in this subsection, shall not be construed to include the cessation of the existence of the Guarantor resulting either from a merger or Tenant consents to consolidation of the appointment of a receiver Guarantor into or custodian for all with another entity or a substantial part dissolution or liquidation of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of the Guarantor following a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction transfer of all or substantially all of Tenant's propertyits assets as an entirety or under the conditions permitting such actions contained in Section 10 hereof.
(d) If (I) an event of default has occurred and is continuing under, and within thirty as defined in either, (30A) days thereafter such filing is not dismissedthe Guarantor Senior Credit Facility, as amended, restated or such court order is not vacated refinanced from time to time, including any agreement or such assumption agreements extending the maturity of, refinancing or sequestration is not released, otherwise restructuring (including increasing the amount of other indebtedness outstanding or if the Tenant does not bond off the risk available to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viiiborrowed thereunder) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part portion of indebtedness under such agreement, and any successor or replacement agreement (the “Senior Credit Facility”) or (B) from and after the date on which the Guarantor has been deemed discharged from its interests obligations (other than any indemnification and other obligations which survive the termination of the Senior Credit Facility) with respect to the Senior Credit Facility (as set forth in the Premises Senior Credit Facility), any other senior unsecured indebtedness of the Guarantor as may exist from time to time in a principal amount of $50 million or more (“Other Guarantor Debt”), and (II) any such event of default under the Senior Credit Facility or Other Guarantor Debt has resulted in the acceleration of the obligations owed under such facility prior to their respective final stated maturities and provided that, in the event that such acceleration has been rescinded, such Event of Default hereunder will be deemed cured for all purposes and of no further effect.
(e) If any representation contained in this Lease without Landlord's prior written consent subject Guaranty or any financial statement or other information furnished to the provisions Trustee or the Issuer in connection with this Guaranty was false or misleading in any material respect at the time it was made or delivered. Whenever an Event of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord Default hereunder shall have happened and be continuing, (a) the option to pursue any one Trustee in the manner provided in the Indenture may declare the entire unpaid principal of, or more of redemption premium, if any, and interest on the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) Bonds to be immediately due and payable, and thereupon all rents and other charges due hereunder to (b) the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord Trustee may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do take whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by action at law or in equity. Forbearance by Landlord equity as may appear necessary or desirable to collect payments then due or thereafter to become due hereunder or to enforce one observance or more performance of any covenant, condition or agreement of the remedies herein provided upon an event of default Guarantor under this Guaranty. In case the Trustee shall not be deemed have proceeded to enforce this Guaranty and such proceedings shall have been discontinued or construed to constitute a waiver of abandoned for any reason, then and in every such default or remedy.
c) This Paragraph 28 case the Guarantor and the Trustee shall be enforceable restored respectively to the maximum extent permissible by applicable lawtheir several positions and rights hereunder, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant all rights, remedies and powers of the alleged failure to perform Guarantor and does not the Trustee shall continue SpanishRiveras though no such proceeding had been taken.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. (a) The following events shall be deemed to be events of default by Tenant under this Lease:
(i) Any failure by Tenant shall fail to pay when due any Rent Base Rental or other rent payable by Tenant to Landlord under this Lease which is not cured within three (3) days of written notice of non-payment; provided, however, that any such notice shall be in lieu of, and not in addition to, any notice required under California Code of Civil Procedure, Section 1161 (hereinafter sometimes referred to as a “Monetary Default”);
(ii) Any failure by Tenant (other sums than a Monetary Default) to comply with any term, provision or covenant of money due hereunder and such this Lease, which failure shall continue for a period of is not cured within ten (10) days after delivery to Tenant of notice of the occurrence of such failure; provided, however, that any such notice shall be in lieu of, and not in addition to, any notice required under California Code of Civil Procedure, Section 1161 and provided further that, if the nature of Tenant’s default is such that more than ten (10) days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant shall commence such cure within said ten (10) day period and thereafter diligently prosecute such cure to completion, which completion shall occur not later than sixty (60) days from the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultnotice from Landlord;
(iii) Tenant or any Guarantor shall become insolvent, or shall make a transfer in fraud of creditors, or shall commit an act of bankruptcy or shall make an assignment for the benefit of creditors, or Tenant or any Guarantor shall admit in writing its inability to pay its debts as they become due;
(iv) Tenant or any Guarantor shall file a petition under any section or chapter of the United States Bankruptcy Code, as amended, pertaining to bankruptcy, or under any similar law or statute of the United States or any State thereof, or Tenant or any Guarantor shall be adjudged bankrupt or insolvent in proceedings filed against Tenant or any Guarantor thereunder; or a petition or answer proposing the adjudication of Tenant or any Guarantor as a bankrupt or its reorganization under any present or future federal or state bankruptcy or similar law shall be filed in any court and such petition or answer shall not be discharged or denied within sixty (60) days after the filing thereof;
(v) A receiver or trustee shall be appointed for all or substantially all of the assets of Tenant or any Guarantor or of the Premises or of any of Tenant’s property located thereon in any proceeding brought by Tenant or any Guarantor, or any such receiver or trustee shall be appointed in any proceeding brought against Tenant or any Guarantor and shall not be discharged within sixty (60) days after such appointment or Tenant or such Guarantor shall consent to or acquiesce in such appointment;
(vi) The leasehold estate hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(ivvii) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in abandon or vacate or abandon any substantial portion of the Premises without the prior written permission of Landlord. If Tenant or any other person acting on Tenant’s behalf has removed, is removing or has made preparations to remove (other than in the normal course of business) goods, equipment, fixtures or other property from the Premises in amounts substantial enough to indicate a probable intent to abandon or vacate the Premises without the prior written permission of Landlord, Tenant’s abandonment of the Premises shall be deemed conclusively established for more than ten (10) consecutive daysall purposes;
(vviii) Tenant shall become insolvent or unable fail to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under take possession of and occupy the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and Premises within thirty (30) days following the Commencement Date and thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if conduct its operations in the Tenant does not bond off Premises for the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant Permitted Use as a bankruptor; orset forth in Paragraph 4 hereof;
(ix) The liquidation, termination, dissolution, forfeiture of right to do business or death of Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 aboveGuarantor.
(b) Upon the occurrence of any event or events of default or other breach of under this Lease by TenantLease, whether enumerated in this Paragraph or not, in addition to all other remedies that may be available to Landlord at law or in equity, Landlord shall have the option to pursue any one or more of the following remedies:remedies without any notice (except as expressly prescribed herein) or demand for possession whatsoever (and without limiting the generality of the foregoing, except as otherwise expressly provided in this Lease, Tenant hereby specifically waives notice and demand for payment of rent or other obligations due and waives any and all other notices or demand requirements imposed by applicable law):
(i) Terminate this Lease upon written notice to Tenant, in which event Landlord shall may recover from Tenant:
(1) the worth at the time of award of any unpaid rent which had been earned at the time of such termination; plus
(2) the worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination until the righttime of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus
(3) the worth at the time of award of the amount by which the unpaid rent for the balance of the Term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus
(4) 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 including, but not limited to: unamortized tenant improvement costs; attorneys’ fees; brokers’ commissions; the costs of refurbishment, alterations, renovation and repair of the Premises; and removal (including the repair of any damage caused by such removal) and storage (or disposal) of Tenant’s personal property, equipment, fixtures, Tenant alterations, tenant improvements and any other items which Tenant is required under this Lease to remove but does not remove. As used in Paragraph 24(b)(i)(1) and 24(b)(i)(2) above, the “worth at the time of award” is computed by allowing interest at the Default Rate set forth in Paragraph 1. As used in Paragraph 24(b)(i)(3) above, the “worth at the time of award” is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). If Landlord notifies Tenant of its election, election to cancel and terminate this Lease, Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to surrender the Premises upon termination of the Lease hereunder, Landlord may without prejudice to any other remedy which it may have for possession or arrearages in rent, enter upon and dispossess take possession of the Premises and expel or remove Tenant and any other person who may be occupying said Premises, or any part thereof, by summary proceedings force, if necessary, without being liable for prosecution or other lawful means;any claim of damages therefor, and Tenant hereby agrees to pay to Landlord on demand the amount of all loss and damage which Landlord may suffer by reason of such termination, whether through inability to relet the Premises on satisfactory terms or otherwise, specifically including but not limited to all Costs of Reletting (hereinafter defined) and any deficiency that may arise by reason of any reletting.
(ii) Without terminating this Lease, enter upon and take possession of the Premises and expel or remove Tenant or any other person who may be occupying said Premises, or any part thereof, by force, if necessary, without having any civil or criminal liability therefor and without terminating this Lease. Landlord may (but shall be under no obligation to) relet the Premises or any part thereof for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant for such term or terms which may be greater or less than the period which would otherwise have constituted the balance of the Lease Term and on such conditions (which may include concessions or free rent) and for such uses as Landlord in its absolute discretion may determine, and Landlord may collect and receive any rents payable by reason of such reletting. Tenant agrees to pay Landlord on demand all Costs of Reletting and any deficiency that may arise by reason of such reletting. Landlord shall have not 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 any such reletting. No such re-entry or taking of possession of the Premises by Landlord shall be construed as an election on Landlord’s part to terminate this Lease unless a written notice of such termination is given to Tenant. If Landlord elects to terminate Tenant’s right to declare possession of the Premises without terminating this Lease, Tenant shall continue to be liable for all amounts rent and rents due under this Lease Landlord shall use reasonable efforts to relet the Premises or any part thereof to a substitute tenant or tenants for a period of time equal to or lesser or greater than the remainder of the existing term (Term on whatever terms and any applicable extension or renewal thereof) to be immediately due and payableconditions Landlord, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal termin Landlord’s good faith discretion, if applicable, shall be accelerated; howeverdeems advisable. For purposes hereof, Landlord shall credit Tenant be deemed to have used “reasonable efforts” to relet if Landlord places its customary “For Lease” sign within the Premises and places the Premises for any re-renting income for lease with a reputable broker. In no event shall Landlord be obligated to lease the Premises, after deducting Landlord's costs necessary Premises in priority to obtain such alternate source of rentother space within the Building.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter Enter upon the Premises Premises, by force, if necessary, without having any civil or criminal liability therefor, and do whatever Tenant is obligated to do under the terms of this Lease (and Tenant agrees to reimburse Land- lord Landlord on demand for any expenses expense which Landlord may incur in effecting thus affecting compliance with Tenant's ’s obligations under this Lease together with interest at the Default Rate and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action, whether caused by the negligence of Landlord or otherwise.
(iv) Continue this Lease in full force and effect, whether or not Tenant shall have abandoned the Premises. The foregoing remedy shall also be available to Landlord pursuant to California Civil Code Section 1951.4, and any successor statute thereof, in the event Tenant has abandoned the Premises. If Landlord elects to continue this Lease in full force and effect pursuant to this Paragraph 24(b)(iv). All such remedies of Land- lord , then Landlord shall be cumulative entitled to enforce all of its rights and remedies under this Lease, including the right to recover rent as it becomes due. Landlord’s election not exclusive, and in addition, Landlord may pursue to terminate this Lease pursuant to this Paragraph 24(b)(iv) or pursuant to any other remedies that may be permitted by provision of this Lease, at law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default , shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) preclude Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right subsequently electing to terminate or rescind this Lease or pursuing any of its other remedies. In order to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result regain possession of the breach Premises and to deny Tenant access thereto, Landlord or its agent may, at the expense and liability of the Tenant, alter or change any or all locks or other security devices controlling access to the Premises without posting or giving notice of any promise or inducement hereof, whether in this Lease or elsewherekind to Tenant. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited have no obligation to provide Tenant a suit for damages and/or injunction. key or grant Tenant hereby covenants that, prior access to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time Premises so long as Tenant is in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights default under this Lease. Tenant is only prevented shall not be entitled to recover possession of the Premises, terminate this Lease, or recover any actual, incidental, consequential, punitive, statutory or other damages or award of attorneys’ fees, by reason of Landlord’s alteration or change of any lock or other security device and the resulting exclusion from unilaterally withholding rent the Premises of the Tenant or Tenant’s agents, servants, employees, customers, licensees, invitees or any other persons from the Premises. Landlord may, without filing its own cause notice, remove and either dispose of action versus Landlordor store, at Tenant’s expense, any property belonging to Tenant that remains in the Premises after Landlord has regained possession thereof.
e(c) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASEFor purposes of this Lease, the term “Costs of Reletting” shall mean all costs and expenses incurred by Landlord in connection with the reletting of the Premises, including without limitation the cost of cleaning, renovation, repairs, decoration and alteration of the Premises for a new tenant or tenants, advertisement, marketing, brokerage and legal fees, the cost of protecting or caring for the Premises while vacant, the cost of removing and storing any property located on the Premises, any increase in insurance premiums caused by the vacancy of the Premises and any other out-of-pocket expenses incurred by Landlord including tenant inducements such as the cost of moving the new tenant or tenants and the cost of assuming any portion of the existing lease(s) of the new tenant(s).
Appears in 1 contract
Events of Default Remedies. In case anyone or more of the following events, herein termed “events of default”, shall happen:
(a) The following events the Shipowner fails to pay on the date due any payment of principal in respect of the Indebtedness hereby secured as provided herein or the Shipowner fails to pay within three (3) Business Days of the date due any payment of interest or any Commitment Commission or any other amount owing under the Subsidiaries Guaranty; or
(b) the statements in Article I shall prove to have been untrue when made in a material way; or
(c) a default in the due and punctual observance and performance of any of the provisions of Sections 2, 3, 7, 8, 9(b), 11, 12, 13(a), (b), (c), (e), (i) and (k), 16 or 17 of Article II hereof shall have occurred and be continuing; or
(d) a breach or omission in the due and punctual observance of any of the other covenants and conditions herein required to be kept and performed by the Shipowner and such breach or omission shall continue for 30 days after the day the Shipowner first knew or should have known of such breach or omission; or
(e) an Event of Default shall have occurred and be continuing under the Credit Agreement; or
(f) a payment default by the Borrower under any Interest Rate Protection Agreement or Other Hedging Agreement shall have occurred and be continuing; or
(g) any notice shall have been issued by the government or any bureau, department, officer, board or agency thereof of the country of registry of the Vessel to the effect that the Vessel is subject to cancellation from such registry or the certificate of registry of the Vessel is subject to revocation or cancellation for any reason whatsoever, and such notice shall not have been cancelled or annulled on or before seven (7) Business Days prior to the date set forth in such notice for such cancellation or revocation; or
(h) the Vessel shall be deemed to cancelled from the country of registry of the Vessel or the certificate of registry of the Vessel is revoked or cancelled for any reason whatsoever; then: the security constituted by this Mortgage shall become immediately enforceable and that without limitation, the enforcement remedies specified can be events exercised irrespective of default by Tenant whether or not the Mortgagee has exercised the right of acceleration under this Leasethe Credit Agreement or any of the other Credit Documents and the Mortgagee shall have the right to:
(i) Tenant Declare all the then unpaid Indebtedness hereby secured to be due and payable immediately, and upon such declaration, the same shall fail to pay become and be immediately due and payable provided, however, that no declaration shall be required if an Event of Default shall have occurred by reason of a Default under Section 10.05 of the Credit Agreement, then and in such case, the Indebtedness hereby secured shall become immediately due and payable on the occurrence of such Event of Default without any Rent notice or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:demand;
(ii) Tenant shall fail Exercise all of the rights and remedies in foreclosure and otherwise given to comply with a mortgagee by the provisions of the laws of the country of registry of the Vessel or of any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as jurisdiction where the Vessel may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultfound;
(iii) The leasehold hereunder demised shall Bring suit at law, in equity or in admiralty, as it may be taken on execution advised, to recover judgment for the Indebtedness hereby secured, and collect the same out of any and all property of the Shipowner whether covered by this Mortgage or other process of law in any action against Tenantotherwise;
(iv) Tenant shall fail to promptly move into, take Take and enter into possession of the Vessel, at any time, wherever the same may be, without legal process and operate its business on without being responsible for loss or damage and the Premises when the Premises are ready for occupancy Shipowner or shall cease to do business other person in or vacate or abandon any substantial portion possession forthwith upon demand of the Premises Mortgagee shall surrender to the Mortgagee possession of the Vessel;
(v) Without being responsible for more than loss or damage, the Mortgagee may hold, lay up, lease, charter, operate or otherwise use such Vessel for such time and upon such terms as it may deem to be for its best advantage, and demand, collect and retain all hire, freights, earnings, issues, revenues, income, profits, return premiums, salvage awards or recoveries, recoveries in general average, and all other sums due or to become due in respect of such Vessel or in respect of any insurance thereon from any person whomsoever, accounting only for the net profits, if any, arising from such use of the Vessel and charging upon all receipts from the use of the Vessel or from the sale thereof by court proceedings or pursuant to subsection (vi) next following, all costs, expenses, charges, damages or losses by reason of such use; and if at any time the Mortgagee shall avail itself of the right herein given them to take the Vessel, the Mortgagee shall have the right to dock the Vessel, for a reasonable time at any dock, pier or other premises of the Shipowner without charge, or to dock her at any other place at the cost and expense of the Shipowner;
(vi) Without being responsible for loss or damage, the Mortgagee may sell the Vessel upon such terms and conditions as to the Mortgagee shall seem best, free from any claim of or by the Shipowner, at public or private sale, by sealed bids or otherwise, by mailing, by air or otherwise, notice of such sale, whether public or private, addressed to the Shipowner at its last known address and to any other registered mortgagee, twenty (20) calendar days prior to the date fixed for entering into the contract of sale and by first publishing notice of any such public sale for ten (10) consecutive days, in daily newspapers of general circulation published in the City of New York, State of New York; in the event that the Vessel shall be offered for sale by private sale, no newspaper publication of notice shall be required, nor notice of adjournment of sale; sale may be held at such place and at such time as the Mortgagee by notice may have specified, or may be adjourned by the Mortgagee from time to time by announcement at the time and place appointed for such sale or for such adjourned sale, and without further notice or publication the Mortgagee may make any such sale at the time and place to which the same shall be so adjourned; and any sale may be conducted without bringing the Vessel to the place designated for such sale and in such manner as the Mortgagee may deem to be for its best advantage, and the Mortgagee may become the purchaser at any sale. The Shipowner agrees that any sale made in accordance with the terms of this paragraph shall be deemed made in a commercially reasonable manner insofar as it is concerned;
(vvii) Tenant shall become insolvent or unable Require that all policies, contracts, certificates of entry and other records relating to pay its debts as they become duethe insurance with respect to the Vessel, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admissionincluding, answer or other responsive pleading consenting but not limited to, those described in Article II, Section 13 hereof (the “Insurances”) (including details of and correspondence concerning outstanding claims) be forthwith delivered to or requesting to the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning order of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; orMortgagee;
(viii) The adjudication Collect, recover, compromise and give a good discharge for any and all monies and claims for monies then outstanding or thereafter arising under the Insurances or in respect of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all the earnings or any part of its interests in requisition compensation and to permit any brokers through whom collection or recovery is effected to charge the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 aboveusual brokerage therefor.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a) The Each of the following events after any applicable grace or cure periods shall be deemed to be events of default by Tenant under this Leaseconstitute an "EVENT OF DEFAULT" hereunder:
(a) if (i) Tenant shall fail to pay any Rent installment of interest is not paid within five (5) days after the same is due, (ii) the entire Indebtedness is not paid on or before the Maturity Date (or if the Maturity Date has been, accelerated, upon such acceleration), or (iii) any other payment or charge due under the Note, this Deed or any other sums Loan Documents is not paid when due;
(b) if any Taxes payable directly to the billing authority by Grantor are not paid before interest becomes payable on the amount due or a penalty is assessed (provided that the foregoing provisions of money due hereunder this clause (b) shall be subject to the right to contest Taxes granted to Grantor in PARAGRAPH 4(b) of this Deed, but only for so long as the conditions in PARAGRAPH 4(b) of this Deed remain satisfied);
(c) if the Policies are not kept in full force and such failure shall continue for a period of effect and are not delivered to Grantee when required hereunder, or if the Policies are not delivered to Grantee within ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:written request by Grantee;
(d) if any of the provisions of PARAGRAPHS 7, 9,19 or 39 herein are violated or not complied with;
(e) if any of the events described in PARAGRAPH 41 shall occur;
(f) if at any time any representation or warranty of Grantor or any Guarantor made herein or in any guaranty, agreement, certificate, report, affidavit, owner's affidavit, financial statement or other instrument furnished to Grantee shall be materially false or misleading in any respect;
(g) if any grantee under a deed to secure debt on the Trust Property, whether superior or subordinate to this Deed (i) demands payment in full or otherwise accelerates any indebtedness of Grantor or (ii) Tenant shall fail otherwise commences the exercise of any remedy available to comply with such party under any other Non-Monetary provision Loan Document;
(h) if Grantor fails to cure promptly any violation of any law or ordinance affecting the Trust Property (provided that the foregoing provisions of this Lease clause (h) shall be subject to any right to contest such violation specifically granted to Grantor in PARAGRAPH 8 of this Deed);
(i) if any Guaranty (as hereinafter defined) is terminated or any event or condition occurs which, in the sole judgment of Grantee, may impair the ability of any Guarantor to perform its obligations under any Guaranty or any Guarantor attempts to withdraw, cancel or disclaim any Guaranty;
(j) if a default by Grantor under any of the other terms, covenants or conditions of the Note, this Deed or any other agreement between Landlord Loan Document shall occur and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default canshall not be have Loan No. 6518403 been cured within thirty (30) days after notice from Grantee, provided that if such default is not susceptible of being cured within such thirty (30) day period and if Tenant is Grantor shall have commenced the cure of such default within such thirty (30) day period and thereafter diligently attempting pursues such cure to cure completion, then such Default, Landlord thirty (30) day period shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than extended for a period of ninety (90) days from the occurrence of the default, provided, further, that the notice and grace period set forth in this subparagrapb (j) shall not apply to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution any other Event of Default expressly set forth in this PARAGRAPH 20 or to any other process Event of law Default defined as such in any action against Tenant;
(iv) Tenant shall fail other Loan Document or to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy any other covenant or shall cease condition with respect to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files which a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing grace period is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably deniedexpressly provided elsewhere; or
(viiik) The adjudication if any of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
bPARAGRAPHS 42(d) and/or PARAGRAPH 42(f) are violated or not complied with, and/or if any representation or warranty in PARAGRAPH 42(b) and/or 42(c) shall prove false or misleading in any respect and/or if any of the events described in PARAGRAPH 42(e) shall occur. Upon the occurrence of any event or events Event of default or other breach of this Lease by TenantDefault, whether enumerated in this Paragraph or not, Landlord the Indebtedness shall have immediately become due at the option to pursue of Grantee. Upon the occurrence of any one or more Event of Default, Grantor shall pay interest on the entire unpaid principal balance of the following remedies:
(i) Landlord shall have the rightNote, at its electionthe Default Rate as defined in and provided for in the Note. Upon the occurrence of any Event of Default, Grantee may, to cancel and terminate this Lease and dispossess Tenant by summary proceedings the extent permitted under applicable law, elect to treat the fixtures included in the Trust Property either as real property or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension as personal property, or renewal thereof) to be immediately due and payableboth, and thereupon all rents proceed to exercise such rights as apply thereto. With respect to any sale of real property included in the Trust Property made under the powers of sale herein granted and other charges due hereunder conferred, Grantee may, to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be extent permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, include in such sale any fixtures included in the Trust Property and the unenforceability of any portion hereof shall not thereby render unenforceable any other portionrelating to such real property.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
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Events of Default Remedies. a) The Each of the following events shall be deemed to be events constitute an “Event of default by Tenant under this LeaseDefault” hereunder:
(a) if (i) Tenant shall fail to pay any Rent installment of interest or any other sums of money due hereunder and such failure shall continue for a period of ten principal is not paid within five (105) days after the date same is due, (ii) the entire Indebtedness of each Note is not paid on or before the Maturity Date (or if the Maturity Date has been accelerated, upon such Rent acceleration), or (iii) any other sums payment or charge due under the Note, this Mortgage or any other Loan Documents is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:not paid when due;
(b) if at any time any representation or warranty of Mortgagor made herein or in any guaranty, agreement, certificate, report, affidavit, owner’s affidavit, financial statement or other instrument furnished to Mortgagee shall be false or misleading in any respect;
(c) if any mortgagee under a mortgage on the Mortgaged Property, whether superior or subordinate to this Mortgage (i) demands payment in full or otherwise accelerates any indebtedness of Mortgagor or (ii) Tenant shall fail otherwise commences the exercise of any remedy available to comply with such party under any other Non-Monetary provision such mortgage or related loan;
(d) if Mortgagor fails to cure promptly any violation of any law or ordinance affecting the Mortgaged Property (provided that the foregoing provisions of this Lease clause (d) shall be subject to any right to contest such violation specifically granted to Mortgagor in Paragraph 5 of this Mortgage);
(e) if a default by Mortgagor under any of the other terms, covenants or any other agreement between Landlord conditions of the this Mortgage shall occur and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default canshall not be have been cured within thirty (30) days after notice from Mortgagee, provided that if such default is not susceptible of being cured within such thirty (30) day period and if Tenant is Mortgagor shall have commenced the cure of such default within such thirty (30) day period and thereafter diligently attempting pursues such cure to cure completion, then such Default, Landlord thirty (30) day period shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than extended for a period of ninety (90) days from the occurrence of the default, provided, further, that the notice and grace period set forth in this subparagraph (e) shall not apply to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution any other Event of Default expressly set forth in this Paragraph 12 or to any other process Event of law Default defined as such in any action against Tenant;
(iv) Tenant shall fail other Loan Document or to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy any other covenant or shall cease condition with respect to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files which a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing grace period is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably deniedexpressly provided elsewhere; or
(viiif) The adjudication if an Event of Tenant as a bankruptor; or
(ix) Tenant Default shall attempt to assign, transfer, sublet all or any part of its interests in occur under the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Loan Agreement. Upon the occurrence of any event or events Event of default or other breach of this Lease by TenantDefault, whether enumerated in this Paragraph or not, Landlord the Indebtedness shall have immediately become due at the option to pursue of Mortgagee. Upon the occurrence of any one or more Event of Default, Mortgagor shall pay interest on the entire unpaid principal balance of the following remedies:
(i) Landlord shall have Note at the rightDefault Rate, at its electionas defined in and provided for in the Note. Upon the occurrence of any Event of Default, Mortgagee may, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due extent permitted under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and elect to treat the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be fixtures included in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except Mortgaged Property either as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease real property or as a result of the breach of any promise personal property, or inducement hereofboth, whether in this Lease or elsewhere. Tenant hereby waives and proceed to exercise such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordas apply thereto.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
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Samples: Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (GTJ REIT, Inc.)
Events of Default Remedies. a) The following events shall be deemed to be events of default by Tenant LESSEE under this LeaseLEASE:
(i) Tenant LESSEE shall fail to pay any Rent rental or any other sums of money due hereunder and such failure shall continue for a period of ten three (103) days after the date upon which written notice of such Rent or other sums failure is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:sent by LESSOR;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this [ILLEGIBLE] Austin Delray Realty, LLC Lease or any other agreement between Landlord and TenantKenwick Industries, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;Inc. --------------------------------------------------------------------------------
(iv) Tenant LESSEE shall fail to promptly move into, take possession of and operate its business on the Premises LEASED PREMISES when the Premises LEASED PREMISED are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises LEASED PREMISES or shall fail to use and occupy the LEASED PREMISES for more than ten (10) consecutive daysthe uses and purposes set forth in Paragraph 8 of this LEASE without the prior written consent of LESSOR or shall remove from the LEASED PREMISES a major portion of the goods, wares, equipment, or furnishings usually kept on the LEASED PREMISES;
(v) Tenant LESSEE shall become insolvent or unable to pay its debts as they become due, Tenant LESSEE files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading pleading, consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant LESSEE makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant LESSEE consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx);
(xxxvii) Xxx The filing against Tenant LESSEE of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant LESSEE as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court courts of competent jurisdiction of all or substantially all of Tenant's LESSEE'S property, and within thirty (30) 30 days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant LESSEE as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 abovebankrupt.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenantdefault, whether enumerated in this Paragraph or not, Landlord LESSOR shall have the option to pursue any one or more of the following remedies:
(i) Landlord LESSOR shall have the right, at its election, right to cancel and terminate this Lease LEASE and dispossess Tenant by summary proceedings or other lawful meansLESSEE;
(ii) Landlord LESSOR shall have the right without terminating or canceling this LEASE to declare all amounts and rents due under this Lease LEASE for the remainder of the existing term (and any an applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents RENTALS and other charges due hereunder to the end of the initial term terms and any renewal termterms, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.;
(iii) Landlord LESSOR may elect to enter and repossess the Premises LEASED PREMISES and relet re-let the Premises LEASED PREMISES for Tenant's LESSEE'S account, holding Tenant LESSEE liable in damages for all expenses incurred in any such reletting re-letting and for any difference between the amount of rent RENTAL received from such reletting re-letting and the rent RENTAL due and payable under the term of this LeaseLEASE; and
(iv) Landlord LESSOR may enter upon the Premises LEASED PREMISES and do whatever Tenant LESSEE is obligated to do under this Lease LEASE (and Tenant LESSEE agrees to reimburse Land- lord LESSOR on demand for any expenses which Landlord LESSOR may incur in effecting compliance with Tenant's LESSEE'S obligations under this Lease LEASE and Tenant LESSEE further agrees that Landlord LESSOR shall not be liable for any damages resulting to the Tenant LESSEE from such action). All such remedies of Land- lord LESSOR shall be cumulative and not exclusive, and in addition, Landlord LESSOR may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord LESSOR to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.[ILLEGIBLE] Austin Delray Realty, LLC Lease Kenwick Industries, Inc. --------------------------------------------------------------------------------
c) This Paragraph 28 12 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord LESSOR shall not be in default hereunder unless Landlord LESSOR has not begun to the cure of any failure of LESSOR to meet its obligations hereunder within thirty (30) 30 days after the receipt by Landlord LESSOR of written notice from Tenant LESSEE of the alleged failure to perform and or thereafter does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereofthereof with reasonable diligence. Except as otherwise specifically provided in this Lease, in no event shall Tenant LESSEE have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord LEASE as a result of Landlord's LESSOR'S default as to any covenant or agreement contained in this Lease LEASE or as a result of the breach of any promise or inducement hereof, whether in this Lease LEASE or elsewhere. Tenant LESSEE hereby waives such remedies of termination and rescission and recision end hereby agrees that Tenant's LESSEE'S remedies for default hereunder and for breach of any promise or inducement by Landlord LESSOR shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a) The If any one or more of the following events ("Events of Default", or, if giving of notice or the lapse of time or both is required, then, prior to such notice and lapse of time, "Defaults") shall be deemed to be events of default by Tenant under this Leaseoccur:
(ia) Tenant shall fail Failure to pay any Rent make due payment of the principal of the Notes, or in the payment of interest on the Notes or in the payment of any other sums of money due hereunder and such failure shall continue for a period of liability owing by the Borrower to the Bank, now existing or hereinafter incurred, within ten (10) days after the date such Rent or other sums payment is due or (b) any Related Agreement ceases to be in full force and effect or any party to any Related Agreement notifies the Bank that such party has no continuing obligation to pay or perform in accordance with no the terms of the applicable Related Agreement; or
9.2 Failure by the Borrower to observe or perform any covenant contained in Sections 6 or 7 hereof within ten (10) days after notice from the Bank and an opportunity to cure any such covenant violation that is susceptible to being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with cured, or failure by the Borrower or any other Non-Monetary provision of this Lease Affiliate or any other party executing a Related Agreement to perform any act, duty, obligation or other agreement between Landlord contained in this Agreement, the Notes or any Related Agreement and Tenantnot otherwise constituting an Event of Default hereunder, if applicablewithin ten (10) days after notice from the Bank and an opportunity to cure any such covenant violation that is susceptible to being cured; or
9.3 Failure by the Borrower to observe or perform any covenant contained in Section 8 hereof; or
9.4 Any representation or warranty made by the Borrower herein or in any Related Agreement, after Landlord has provided or any written statement, certificate or other data furnished by the Borrower in connection herewith or with any Related Agreement, proves to have been incorrect in any material respect when made or furnished; or
9.5 A judgment or judgments for the payment of money in excess of $250,000.00 shall be rendered against the Borrower or any Affiliate, and any such judgment shall remain unsatisfied and in effect for any period of thirty (30) consecutive days prior written notice without a stay of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days providedexecution; howeveror
9.6 Any levy, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Defaultseizure, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Defaultattachment, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised garnishment, execution or similar process shall be taken issued or levied on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises Borrower's or Affiliate's property, which secures a claim in excess of $250,000.00 and is not discharged within 30 days; or
9.7 The Borrower or any Affiliate shall (a) apply for more than ten or consent to the appointment of a receiver, conservator, trustee or liquidator of all or a substantial part of any of its assets; (10b) consecutive days;
(v) Tenant shall become insolvent be unable, or unable admit in writing its inability, to pay its debts as they become duemature; (c) file or permit the filing of any petition, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admissioncase, answer or other responsive pleading consenting toarrangement, reorganization, or requesting the relief afforded by like under any insolvency or bankruptcy law, or the bankruptcy laws;
(vi) Tenant makes adjudication of it as a bankrupt, or the making of an assignment for the benefit of creditorscreditors or the consenting to any form of arrangement for the satisfaction, within the meaning settlement or delay of the bankruptcy laws debt or Tenant consents to the appointment of a receiver for all or custodian any part of its properties; or (d) take any action for the purpose of effecting any of the foregoing; or
9.8 An order, judgment or decree shall be entered, or a case shall be commenced, against the Borrower or any Affiliate, without the application, approval or consent of the Borrower or such Affiliate by or in any court of competent jurisdiction, approving a petition or permitting the commencement of a case seeking reorganization or liquidation of the Borrower or such Affiliate or appointing a receiver, trustee, conservator or liquidator of the Borrower or such Affiliate or of all or a substantial part of its property; assets and the Borrower or SpanishRiver.Manchester.September 22such Affiliate, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy by any act, indicates its approval thereof, consent thereto, or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissedacquiescence therein, or such court order is not vacated order, judgment, decree or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which case shall not be unreasonably deniedcontinue unstayed and in effect for any period of sixty (60) consecutive days; or
(viii) 9.9 The adjudication of Tenant Borrower or any Affiliate shall dissolve or liquidate, or be dissolved or liquidated, or cease to legally exist, or merge, consolidate or convert, or be merged, consolidated or converted with or into any other corporation or entity other than a Subsidiary with the Borrower remaining as a bankruptorthe survivor entity; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. a) The Each of the following events shall be deemed to be events constitute an "Event of default by Tenant under this LeaseDefault" hereunder:
(a) if (i) Tenant shall fail to pay any Rent installment of interest or principal is not paid within five (5) days after the same is due, (ii) the entire Indebtedness is not paid on or before the Maturity Date (or if the Maturity Date has been accelerated, upon such acceleration), or (iii) any other payment or charge due under the Note, this Deed of Trust or any other sums Loan Documents is not paid within five (5) days after the same is due;
(b) if any Taxes payable directly to the billing authority by Trustor are not paid before interest becomes payable on the amount due or a penalty is assessed (provided that the foregoing provisions of money due hereunder this clause (b) shall be subject to the right to contest Taxes granted to Trustor in Paragraph 4(b) of this Deed of Trust, but only for so long as the conditions in Paragraph 4(b) of this Deed of Trust remain satisfied);
(c) if the Policies are not kept in full force and such failure shall continue for a period of effect and are not delivered to Beneficiary when required hereunder, or if the Policies are not delivered to Beneficiary within ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:request by Beneficiary;
(d) if any of the provisions of Paragraphs 7, 9, 19 or 39 herein are violated or not complied with;
(e) if any of the events described in Paragraph 41 shall occur;
(f) if at any time any representation or warranty of Trustor or any Guarantor made herein or in any guaranty, agreement, certificate, report, affidavit, owner's affidavit, financial statement or other instrument furnished to Beneficiary shall be false or misleading in any material respect;
(g) if any beneficiary under a deed of trust on the Folsom Trust Property, whether superior or subordinate to this Deed of Trust (i) demands payment in full or otherwise accelerates any indebtedness of Trustor or (ii) Tenant shall fail otherwise commences the exercise of any remedy available to comply with any other Non-Monetary provision such party under such deed of this Lease trust or any other agreement between Landlord and Tenant, loan document related to such deed of trust;
(h) if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed Trustor fails to cure promptly any violation of any law or ordinance affecting the Folsom Trust Property (provided that the foregoing provisions of this clause (h) shall be subject to any right to contest such Non-Monetary Default within said thirty violation specifically granted to Trustor in Paragraph 8 of this Deed of Trust);
(30i) days provided; howeverif any Guaranty (as hereinafter defined) is terminated or any event or condition occurs which, in the sole judgment of Beneficiary, may impair the ability of any Guarantor to perform its obligations under any Guaranty or any Guarantor attempts to withdraw, cancel or disclaim any Guaranty;
(j) if a default by Trustor under any of the other terms, covenants or conditions of the Note, this Deed of Trust or any other Loan Document shall occur and such default canshall not be have been cured within thirty (30) days after notice from Beneficiary, provided that if such default is not susceptible of being cured within such thirty (30) day period and if Tenant is Trustor shall have commenced the cure of such default within such thirty (30) day period and thereafter diligently attempting pursues such cure to cure completion, then such Default, Landlord thirty (30) day period shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than extended for a period of ninety (90) days from the occurrence of the default, provided, further, that the notice and grace period set forth in this subparagraph (j) shall not apply to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution any other Event of Default expressly set forth in this Paragraph 20 or to any other process Event of law Default defined as such in any action against Tenant;
(iv) Tenant shall fail other Loan Document or to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy any other covenant or shall cease condition with respect to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files which a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing grace period is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably deniedexpressly provided elsewhere; or
(viiik) The adjudication if any of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
bParagraphs 42(d) and/or Paragraph 42(f) are violated or not complied with, and/or if any representation or warranty in Paragraph 42(b) and/or 42(c) shall prove false or misleading in any respect and/or if any of the events described in Paragraph 42(e) shall occur. Upon the occurrence of any event or events Event of default or other breach of this Lease by TenantDefault, whether enumerated in this Paragraph or not, Landlord the Indebtedness shall have immediately become due at the option of Beneficiary. Upon the occurrence of any Event of Default, Trustor shall be obligated to pursue any one or more pay interest on the entire unpaid principal balance of the following remedies:
(i) Landlord shall have Note in accordance with the rightterms and provisions of the Note. Upon the occurrence of any Event of Default, at its electionBeneficiary may, to cancel and terminate this Lease and dispossess Tenant by summary proceedings the extent permitted under applicable law, elect to treat the fixtures included in the Folsom Trust Property either as real property or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension as personal property, or renewal thereof) to be immediately due and payableboth, and thereupon all rents proceed to exercise such rights as apply thereto. With respect to any sale of real property included in the Folsom Trust Property made under the powers of sale herein granted and other charges due hereunder conferred, Beneficiary may, to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be extent permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, include in such sale any fixtures included in the Folsom Trust Property and the unenforceability of any portion hereof shall not thereby render unenforceable any other portionrelating to such real property.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. aIf any Event of Default shall occur and be continuing, the Agent may, and at the request of the Required Lenders, shall, by notice to the Borrowers, declare the Delayed Draw Commitments to be terminated, whereupon such Delayed Draw Commitments shall be terminated and declare the Maturity Date to have occurred with respect to the Loans, and all Lender Debt related thereto (including, but not limited to, accrued but unpaid interest and, as liquidated damages and not as a penalty, the Applicable Premium if such acceleration is on or prior to the third anniversary of the Closing Date), shall become immediately due and payable in full without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrowers, anything contained herein or in any other Loan Document to the contrary notwithstanding. If an Event of Default under clause (h) The following events of Section 9.1 occurs, the Delayed Draw Commitments shall automatically be terminated and the Maturity Date will be deemed to be events have occurred automatically and without notice and all Lender Debt (including, but not limited to, accrued but unpaid interest and, as liquidated damages and not as a penalty, the Applicable Premium if such acceleration is on or prior to the third anniversary of default by Tenant under this Lease:
(ithe Closing Date) Tenant shall fail to pay any Rent automatically become immediately due and payable without presentment, demand, protest or any other sums notice of money due hereunder and such failure shall continue for a period any kind, all of ten (10) days after which are hereby expressly waived by the date such Rent Borrowers, anything contained herein or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with in any other Non-Monetary provision of Loan Document to the contrary notwithstanding. Upon any such declaration or designation, the Agent and the Lenders shall have, in addition to the rights and remedies which it may have under this Lease Agreement, all other rights and remedies provided after default under the UCC and under other applicable law, which rights and remedies shall be cumulative. Each Lender agrees that it will not have any right individually to enforce or seek to enforce this Agreement or any other agreement between Landlord Loan Document or to realize upon any Collateral for the Lender Debt, it being understood and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of agreed that such Non-Monetary Default rights and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as remedies may be necessary to cure such Non-Monetary Default, but exercised only by the Agent in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold its discretion granted hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on at the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion direction of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts applicable Lenders as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiverset forth hereunder.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. If Tenant shall at any time: (a) The following events shall be deemed to be events in default in the payment of default by Tenant under rental or any other charges hereunder or in the performance of any of the covenants of this Lease:
(i) , and Tenant shall fail to pay any Rent or any other sums of money due hereunder and remedy such failure shall continue for a period of default within ten (10) days after receipt of written notice thereof (for the date first default in any twelve (12) month period; thereafter, for any subsequent default during such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) period Tenant shall fail be deemed to comply with be default Tenant fails to remedy such default within ten (10) days from the original due date therefor, without any written notice from Landlord) from Landlord if such default is as to payment of Minimum Rent, ten (10) days after receipt of written notice thereof (for the first default in any twelve (12) month period; thereafter, for any subsequent default during such period Tenant shall be deemed to be in default if Tenant fails to remedy such default within ten (10) days from the original due date therefor, without any written notice from Landlord) if such default is the payment of any other Non-Monetary provision of this Lease charges, or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided within thirty (30) days prior after receipt of written notice of thereof if such Non-Monetary Default and default nonmonetary (but Tenant has failed shall not be deemed in default if it commences to cure remedy such Non-Monetary Default default within said thirty (30) days provided; howeverday period and proceeds therewith' with due diligence), if such default canor (b) proceedings under the Bankruptcy Code shall be instituted by or against Tenant and the same shall not be cured dismissed by the Court within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution after being filed, or other process of law in any action against Tenant;
(iv) if Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes make an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of if a receiver of any property of Tenant or custodian for all upon the Premises be appointed any action, suit or a substantial part of its property; proceeding by or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of and not removed within sixty (60) days after appointment, or any event shall happen (other than a petition in bankruptcy permitted assignment or for reorganization under the bankruptcy lawssublease hereunder) which, the adjudication of Tenant as a bankruptaside from this provision, the entry of a court order appointing a receiver, custodian would cause any assignment or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all devolution of Tenant's property, and within thirty interest or occupancy hereunder by operation of law; (30c) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication interest of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default shall be sold under execution or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
legal process; (id) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for commit waste upon the Premises, after deducting Landlord's costs necessary ; (e) fail to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess vacate the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term immediately upon termination of this Lease, by lapse of time or otherwise; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated by notice to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under without terminating this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE., re-enter the Premises by summary proceedings, proceedings in
Appears in 1 contract
Samples: Lease Agreement
Events of Default Remedies. a) The Each of the following events shall be deemed to be events constitute an “Event of default by Tenant under this LeaseDefault” hereunder:
(a) if (i) Tenant shall fail to pay any Rent installment of interest or principal is not paid within five (5) days after the same is due, (ii) the entire Indebtedness is not paid on or before the Maturity Date (or if the Maturity Date has been accelerated, upon such acceleration), or (iii) any other payment or charge due under the Note, this Mortgage or any other sums Loan Documents is not paid when due;
(b) if any Taxes payable directly to the billing authority by Mortgagor are not paid before interest becomes payable on the amount due or a penalty is assessed (provided that the foregoing provisions of money due hereunder this clause (b) shall be subject to the right to contest Taxes granted to Mortgagor in Paragraph 4(b) of this Mortgage, but only for so long as the conditions in Paragraph 4(b) of this Mortgage remain satisfied);
(c) if the Policies are not kept in full force and such failure shall continue for a period of effect and are not delivered to Mortgagee when required hereunder, or if the Policies are not delivered to Mortgagee within ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:request by Mortgagee;
(d) if any of the provisions of Paragraphs 7, 9 or 39 herein are violated or not complied with;
(e) if any of the provisions of Paragraph 19 herein are violated or not complied with and such default shall not have been cured within fifteen (15) days after notice from Mortgagee;
(f) if any of the events described in Paragraph 41 shall occur;
(g) if at any time any representation or warranty of Mortgagor or any Guarantor made herein or in any guaranty, agreement, certificate, report, affidavit, owner’s affidavit, financial statement or other instrument furnished to Mortgagee shall be false or misleading in any respect;
(h) if any mortgagee under a mortgage on the Mortgaged Property, whether superior or subordinate to this Mortgage (i) demands payment in full or otherwise accelerates any indebtedness of Mortgagor or (ii) Tenant shall fail otherwise commences the exercise of any remedy available to comply with such party under any other Non-Monetary provision loan document;
(i) if Mortgagor fails to cure promptly any violation of any law or ordinance affecting the Mortgaged Property (provided that the foregoing provisions of this Lease clause (h) shall be subject to any right to contest such violation specifically granted to Mortgagor in Paragraph 8 of this Mortgage);
(j) if any Guaranty (as hereinafter defined) is terminated or any event or condition occurs which, in the sole judgment of Mortgagee, may impair the ability of any Guarantor to perform its obligations under any Guaranty or any Guarantor attempts to withdraw, cancel or disclaim any Guaranty;
(k) if a default by Mortgagor under any of the other terms, covenants or conditions of the Note, this Mortgage or any other agreement between Landlord Loan Document shall occur and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default canshall not be have been cured within thirty (30) days after notice from Mortgagee, provided that if such default is not susceptible of being cured within such thirty (30) day period and if Tenant is Mortgagor shall have commenced the cure of such default within such thirty (30) day period and thereafter diligently attempting pursues such cure to cure completion, then such Default, Landlord thirty (30) day period shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than extended for a period of ninety (90) days from the occurrence of the default, provided, further, that the notice and grace period set forth in this subparagraph (j) shall not apply to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution any other Event of Default expressly set forth in this Paragraph 20 or to any other process Event of law Default defined as such in any action against Tenant;
(iv) Tenant shall fail other Loan Document or to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy any other covenant or shall cease condition with respect to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files which a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing grace period is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably deniedexpressly provided elsewhere; or
(viiil) The adjudication if any of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
bParagraphs 42(d) and/or Paragraph 42(f) are violated or not complied with, and/or if any representation or warranty in Paragraph 42(b) and/or 42(c) shall prove false or misleading in any respect and/or if any of the events described in Paragraph 42(e) shall occur. Upon the occurrence of any event or events Event of default or other breach of this Lease by TenantDefault, whether enumerated in this Paragraph or not, Landlord the Indebtedness shall have immediately become due at the option to pursue of Mortgagee. Upon the occurrence of any one or more Event of Default, Mortgagor shall pay interest on the entire unpaid principal balance of the following remedies:
(i) Landlord shall have Note, as defined in and provided for in the rightNote. Upon the occurrence of any Event of Default, at its electionMortgagee may, to cancel and terminate this Lease and dispossess Tenant by summary proceedings the extent permitted under applicable law, elect to treat the fixtures included in the Mortgaged Property either as real property or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension as personal property, or renewal thereof) to be immediately due and payableboth, and thereupon all rents proceed to exercise such rights as apply thereto. With respect to any sale of real property included in the Mortgaged Property made under the powers of sale herein granted and other charges due hereunder conferred, Mortgagee may, to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be extent permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, include in such sale any fixtures included in the Mortgaged Property and the unenforceability of any portion hereof shall not thereby render unenforceable any other portionrelating to such real property.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Mortgage, Assignment of Leases and Rents and Security Agreement (FSP 303 East Wacker Drive Corp.)
Events of Default Remedies. (a) The Each of the following events shall be deemed to be events constitute an “Event of default by Tenant Default” under this LeaseAgreement:
(i) Tenant Seller shall fail to pay repurchase any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after Purchased Asset on the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:applicable Repurchase Date;
(ii) Tenant Seller shall fail to comply apply any Income (including, for the avoidance of doubt, any Principal Payments) received by Seller in accordance with the provisions hereof; provided, however, to the extent that any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenantsuch failure occurs despite sufficient funds being on deposit in the Depository Account, if applicable, after Landlord has provided thirty Seller shall have one (301) days prior written notice of such Non-Monetary Default and Tenant has failed Business Day to cure such Non-Monetary Default within said thirty (30) days provided; howeverfailure, if except that such default canfailure shall not be cured an Event of Default if sufficient Income, which would otherwise be remitted to Administrative Agent, on behalf of Buyers, pursuant to Section 5 hereof, is on deposit in the Depository Account but the Depository fails to remit such funds to Administrative Agent, on behalf of Buyers, so long as Seller causes such funds to be remitted to Administrative Agent, on behalf of Buyers, within thirty one (301) days and if Tenant is diligently attempting to cure Business Day of such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultfailure;
(iii) The leasehold hereunder demised Seller shall be taken on execution or other process fail to cure any Margin Deficit in accordance with Article 4 of law in any action against Tenant;this Agreement; LEGAL_US_E # 160815361.8
(iv) Tenant Seller, Pledgor or Guarantor shall fail to promptly move intomake any payment not otherwise addressed under this Article 13(a) owing to Buyers that has become due, take possession whether by acceleration or otherwise under the terms of and operate its business on this Agreement or the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion terms of the Premises for more than ten Pledge and Security Agreement, or the Guarantee Agreement, the Fee Letter or any other Transaction Document, which failure is not remedied within three (103) consecutive daysBusiness Days of written notice thereof by Administrative Agent, on behalf of Buyers, to Seller;
(v) Tenant Seller shall become insolvent default in the observance or unable performance of its obligation in any agreement contained in Article 10 of this Agreement and, to pay the extent such default is capable of being cured by Seller, such default shall not be cured within five (5) Business Days after the earlier of (A) notice by Administrative Agent, on behalf of Buyers, to Seller thereof and (B) Knowledge on the part of Seller thereof, provided, that if such default is susceptible of cure but cannot reasonably be cured within such five (5) Business Day period and if Seller has diligently and expeditiously proceeded to cure the same, such five (5) Business Day period shall be extended for such time as determined by Administrative Agent in its debts as they become duesole discretion for Seller, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admissionexercise of due diligence, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy lawsto cure such default;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)Reserved;
(xxxvii) Xxx filing against Tenant an Act of a petition in bankruptcy Insolvency occurs with respect to Seller, Pledgor or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; orGuarantor;
(viii) The adjudication a Change of Tenant as a bankruptor; orControl shall have occurred;
(ix) Tenant Seller, Pledgor or Guarantor shall attempt admit to assignany Person its inability to, transferor its intention not to, sublet all or perform any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful meansobligations hereunder;
(iix) Landlord the Custodial Agreement, the Depository Agreement, the Pledge and Security Agreement, the Guarantee Agreement, the Servicing Agreement, the Fee Letter or any other Transaction Document shall have for whatever reason be terminated (except with Administrative Agent’s prior written consent) or cease to be in full force and effect, or the right enforceability thereof shall be contested by Seller, Pledgor, Guarantor or any counter-party thereto, as the case may be;
(xi) Seller or Guarantor shall be in default under (A) any Indebtedness of Seller or Guarantor, as applicable, which default (1) involves the failure to declare all amounts and rents due under this Lease for pay a matured obligation in excess of $250,000, with respect to Seller or $10,000,000, with respect to Guarantor or (2) permits the remainder acceleration of the existing term (and maturity of obligations by any applicable extension other party to or renewal thereof) beneficiary with respect to be immediately due and payablesuch Indebtedness, and thereupon all rents and other charges due hereunder to if the end aggregate amount of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source Indebtedness in respect of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
cdefaults shall have occurred is at least $250,000, with respect to Seller or $10,000,000, with respect to Guarantor; or (B) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.material contract to which Seller or Guarantor is a party which default (1) involves the failure to pay a matured obligation or (2) permits the acceleration of the maturity of obligations by any other party to or beneficiary of such contract if the aggregate amount of such obligations is $250,000, with respect to Seller or $10,000,000, with respect to Guarantor;
d(xii) Landlord Seller or Guarantor shall not be in default hereunder unless Landlord under any repurchase facility, loan facility or hedging transaction entered into by Seller or Guarantor, as applicable, to any Buyer, or any Affiliate of any Buyer, or any of its present or future Affiliates, which default (A) involves the failure to pay a matured obligation, or (B) permits the acceleration of the maturity of obligations by any other party to or beneficiary with respect to such repurchase facility, loan facility or hedging transaction; LEGAL_US_E # 160815361.8
(A) Seller or an ERISA Affiliate shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan that is not exempt from such Sections of ERISA and the Code, (B) any material “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan or any Lien in favor of the Pension Benefit Guaranty Corporation or a Plan shall arise on the assets of Seller or any ERISA Affiliate, (C) a Reportable Event (as referenced in Section 4043(b)(3) of ERISA), the reporting of which has not begun been waived by regulations, shall occur with respect to, or proceedings shall commence to cure have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any failure Plan, which Reportable Event (as so defined) or commencement of its obligations hereunder within thirty (30) days after the receipt by Landlord proceedings or appointment of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Leasea trustee is, in no the reasonable opinion of Administrative Agent, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (D) any Plan shall terminate for purposes of Title IV of ERISA, (E) Seller or any ERISA Affiliate shall, or in the reasonable opinion of Administrative Agent is likely to, incur any liability in connection with a withdrawal from, or the insolvency or reorganization of, a Multiemployer Plan or (F) any other event or condition shall Tenant occur or exist with respect to a Plan; and in each case in clauses (A) through (F) above, such event or condition, together with all other such events or conditions, if any, could reasonably be expected to have a Material Adverse Effect;
(xiv) either (A) the right Transaction Documents shall for any reason not cause, or shall cease to terminate or rescind this Lease or cause, Administrative Agent, on behalf of Buyers, to offset be the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach owner free of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies adverse claim of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted Purchased Assets, and such condition is not cured by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.Seller within three
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Claros Mortgage Trust, Inc.)
Events of Default Remedies. a) The Each of the following events after any applicable grace or cure periods shall be deemed to be events of default by Tenant under this Leaseconstitute an "EVENT OF DEFAULT" hereunder:
(a) if (i) Tenant shall fail to pay any Rent installment of interest is not paid within five (5) days after the same is due, (ii) the entire Indebtedness is not paid on or before the Maturity Date (or if the Maturity Date has been accelerated, upon such acceleration), or (iii) any other payment or charge due under the Note, this Mortgage or any other sums Loan Documents is not paid when due;
(b) if any Taxes payable directly to the billing authority by Mortgagor are not paid before interest becomes payable on the amount due or a penalty is assessed (provided that the foregoing provisions of money due hereunder this clause (b) shall be subject to the right to contest Taxes granted to Mortgagor in PARAGRAPH 4(b) of this Mortgage, but only for so long as the conditions in PARAGRAPH 4(b) of this Mortgage remain satisfied);
(c) if the Policies are not kept in full force and such failure shall continue for a period of effect and are not delivered to Mortgagee when required hereunder, or if the Policies are not delivered to Mortgagee within ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:written request by Mortgagee;
(d) if any of the provisions of PARAGRAPHS 7, 9, 19 or 39 herein are violated or not complied with;
(e) if any of the events described in PARAGRAPH 41 shall occur;
(f) if at any time any representation or warranty of Mortgagor or any Guarantor made herein or in any guaranty, agreement, certificate, report, affidavit, owner's Loan No. 651S370 affidavit, financial statement or other instrument furnished to Mortgagee shall be materially false or misleading in any respect;
(g) if any mortgagee under a mortgage on the Mortgaged Property, whether superior or subordinate to this Mortgage (i) demands payment in full or otherwise accelerates any indebtedness of Mortgagor or (ii) Tenant shall fail otherwise commences the exercise of any remedy available to comply with such party under any other Non-Monetary provision Loan Document;
(h) if Mortgagor fails to cure promptly any violation of any law or ordinance affecting the Mortgaged Property (provided that the foregoing provisions of this Lease clause (h) shall be subject to any right to contest such violation specifically granted to Mortgagor in PARAGRAPH 8 of this Mortgage);
(i) if any Guaranty (as hereinafter defined) is terminated or any event or condition occurs which, in the sole judgment of Mortgagee, may impair the ability of any Guarantor to perform its obligations under any Guaranty or any Guarantor attempts to withdraw, cancel or disclaim any Guaranty;
(j) if a default by Mortgagor under any of the other terms, covenants or conditions of the Note, this Mortgage or any other agreement between Landlord Loan Document shall occur and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default canshall not be have been cured within thirty (30) days after notice from Mortgagee, provided that if such default is not susceptible of being cured within such thirty (30) day period and if Tenant is Mortgagor shall have commenced the cure of such default within such thirty (30) day period and thereafter diligently attempting pursues such cure to cure completion, then such Default, Landlord thirty (30) day period shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than extended for a period of ninety (90) days from the occurrence of the default, provided, further, that the notice and grace period set forth in this subparagraph (j) shall not apply to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution any other Event of Default expressly set forth in this PARAGRAPH 20 or to any other process Event of law Default defined as such in any action against Tenant;
(iv) Tenant shall fail other Loan Document or to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy any other covenant or shall cease condition with respect to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files which a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing grace period is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably deniedexpressly provided elsewhere; or
(viiik) The adjudication if any of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
bPARAGRAPHS 42(d) and/or PARAGRAPH 42(f) are violated or not complied with, and/or if any representation or warranty in PARAGRAPH 42(b) and/or 42(c) shall prove false or misleading in any respect and/or if any of the events described in PARAGRAPH 42(e) shall occur. Upon the occurrence of any event or events Event of default or other breach of this Lease by TenantDefault, whether enumerated in this Paragraph or not, Landlord the Indebtedness shall have immediately become due at the option to pursue of Mortgagee. Upon the occurrence of any one or more Event of Default, Mortgagor shall pay interest on the entire unpaid principal balance of the following remedies:
(i) Landlord shall have Note, as defined in and provided for in the rightNote. Upon the occurrence of any Event of Default, at its electionMortgagee may, to cancel and terminate this Lease and dispossess Tenant by summary proceedings the extent permitted under applicable law, elect to treat the fixtures included in the Mortgaged Property either as real property or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension as personal property, or renewal thereof) to be immediately due and payableboth, and thereupon all rents proceed to exercise such rights as apply thereto. With respect to any sale of real property included in the Mortgaged Property made under the powers of sale herein granted and other charges due hereunder conferred, Mortgagee may, to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action)extent Loan No. All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be 6518370 permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, include in such sale any fixtures included in the Mortgaged Property and the unenforceability of any portion hereof shall not thereby render unenforceable any other portionrelating to such real property.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Mortgage (Inland Western Retail Real Estate Trust Inc)
Events of Default Remedies. (a) The following events shall be deemed to be events be, but are not exclusively, "Events of default Default" by Tenant under this Lease:
: (i) Tenant shall fail to pay any Rent or any other sums sum of money when due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord)under this Lease; hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and TenantTenant not requiring the payment of money (all of which terms, if applicableprovisions, and covenants shall be deemed material) and such failure shall continue for a period of 15 days after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed default is delivered to cure such Non-Monetary Default within said thirty (30) days providedTenant; however, or if such default canfailure could not reasonably be cured within thirty (30) days and if such period, Tenant is diligently attempting shall have failed to commence such cure within such Default, Landlord shall grant period or thereafter failed to prosecute with diligence such additional reasonable time as may be necessary cure to cure such Non-Monetary Defaultcompletion, but in no event shall Landlord grant more later than ninety (90) 60 days after Landlord's initial notice to cure a Non-Monetary default;
Tenant of such failure; (iii) The the leasehold hereunder demised shall be taken on by execution or other process of law in any action against Tenant;
; (iv) Tenant notifies Landlord, at any time prior to the Rent Commencement Date, that Tenant does not intend to take occupancy of the Premises upon the Rent Commencement Date, or Tenant shall fail to promptly move into, into and take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
Premises; (v) Tenant shall become insolvent or unable to pay its debts as they become due, or Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
notifies Landlord that it anticipates either condition; (vi) Tenant makes an assignment for the benefit of creditorsor any guarantor takes any action to, within the meaning or notifies Landlord that Tenant or any guarantor intends to file a petition under any section or chapter of the bankruptcy laws Bankruptcy Code, as amended from time to time, or under any similar law or statute of the United States or any State thereof, or a petition shall be filed against Tenant or any guarantor under any such statute, or Tenant consents or any guarantor or any creditor of Tenant notifies Landlord that it knows such a petition will be filed, or Tenant or any guarantor notifies Landlord that it expects such a petition to the appointment of be filed; (vii) a receiver or custodian trustee shall be appointed for Tenant's leasehold interest in the Premises or for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication assets of Tenant as a bankrupt, the entry or any guarantor; (viii) Tenant shall make any assignment of a court order appointing a receiver, custodian this Lease or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction sublease of all or substantially all any portion of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Premises without Landlord's reasonable satisfaction, which shall not be unreasonably deniedprior consent in violation of the terms of this Lease; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assignremove or permit the removal of any furniture, transferfixtures or equipment from the Premises other than in the normal course of business without replacing same with replacement furniture, sublet all fixtures or equipment of at least equivalent value; (x) Tenant or any part agent of its interests Tenant falsifies any report or misrepresents other information required to be furnished to Landlord pursuant to this Lease; (xi) the death of Tenant or any guarantor of Tenant's obligations; or the commencement of steps or proceedings toward the dissolution, winding up, or other termination of the existence of the Tenant or of any guarantor of the Tenant's obligations, or toward the liquidation of either of their respective assets; (xii) the occurrence of any other event described as a default elsewhere in the Premises Lease or any amendment thereto, regardless of whether such event is defined as one of the Events of Default in this Lease without Landlord's prior written consent subject to the provisions of Section 19 aboveParagraph.
(b) Upon the occurrence of any of the Events of Default enumerated above, or any other event or events of default or other breach of by Tenant under this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
: (i) terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord; (ii) terminate Tenant's right to occupy the Premises and re-enter and take possession of the Premises (without terminating this Lease); (iii) Landlord shall have the right, at its election, to cancel and terminate with or without terminating or canceling this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have Tenant's right to possession of the right Premises, to declare all amounts and rents Rent due under this Lease for the remainder of the existing term Lease Term (and or any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and Lease Term (or any extension or renewal term, if applicable, ) shall be accelerated; however, Landlord but such accelerated amount shall credit Tenant for any re-renting income for be discounted to the Premises, after deducting Landlord's costs necessary to obtain such alternate source then present value at the discount rate of rent.
the Federal Reserve Bank of the district within which the Premises is located; (iiiiv) Landlord may elect to enter and repossess the Premises and relet all or part of the Premises for Tenant's account, for a term or terms which may, at Landlord's option, be equal to, less than, or greater than the period which would otherwise have constituted the balance of the Lease Term, holding Tenant liable in damages for all expenses incurred in any such reletting including, without limitation, any Tenant improvement allowance, expenditures in connection with renovation, maintenance, repairs and/or alterations for the new tenant, broker's commissions, legal fees, etc. and for any difference between the amount of rent received from such reletting and the rent Rent due and payable under the term terms of this Lease; and
(ivv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under the terms of this Lease (Lease, and Tenant agrees to reimburse Land- lord Landlord on demand for any expenses expense which Landlord may incur in effecting compliance with Tenant's obligations under this Lease Lease, and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative ; and not exclusive, and in addition, Landlord may pursue any (vi) exercise all other remedies that may be permitted by available to Landlord at law or in equity, including, without limitation, injunctive relief of all varieties. Forbearance by In the event Landlord elects to enforce one re-enter or more take possession of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver Premises after Tenant's default, Tenant hereby waives notice of such default re-entry or remedy.
c) This Paragraph 28 repossession. Landlord may make such alterations and/or decorations in the Premises as Landlord, in Landlord's sole discretion, considers advisable and necessary for the purpose of reletting, securing or maintaining the Premises. Landlord, in addition to all other rights and remedies it may have, shall have the right to keep in place and use all of the inventory, furniture, fixtures, equipment and other personal property in the Premises and/or remove any or all of Tenant's property from the Premises which may then be enforceable to sold, disposed of, or stored at the maximum extent permissible by applicable law, cost of and for the unenforceability account of any portion hereof shall not thereby render unenforceable any other portion.
d) Tenant. Landlord shall not be in default hereunder unless responsible for the care or safekeeping of any such property and Tenant waives any claim against Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant relating thereto. No re-entry or taking possession of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement Premises by Landlord shall be limited construed as an election on Landlord's part to a suit terminate this Lease unless written notice of such intention is given to Tenant. Notwithstanding any reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease. In any event, 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 sums due upon such reletting, and the refusal, failure or inability of Landlord to relet the Premises or any part or parts thereof shall not release or affect Tenant's liability for damages and/or injunction. damages, the Tenant hereby covenants thatspecifically waiving any duty on the part of. Landlord to mitigate damages that may otherwise be imposed by law. Landlord may, prior without prejudice to any other remedy which it may have for possession or arrearages in rent, expel or remove Tenant and any other person who may be occupying said Premises or any part thereof. In addition, the provisions of Paragraph 26 hereof shall apply with respect to the exercise period from and after the giving of notice of such termination to Tenant. All of Landlord's remedies shall be (collectively, a "Mortgage"), and Tenant agrees that any Mortgagee shall have the right at any time to subordinate such remediesMortgage to this Lease on such terms and subject to such conditions as Mortgagee may deem appropriate in its discretion. The terms of this Lease are subject to approval by Mortgagee, it will give the mortgagees on the Property written notice and such approval is a reasonable period of time in which condition precedent to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that partyLandlord's rights obligations under this Lease. Landlord is hereby irrevocably vested with full power and authority to subordinate this Lease to any Mortgage now existing or hereafter placed upon the Premises, or the Building, the Complex or the Property, and Tenant agrees upon demand to execute such further instruments (collectively, "Subordination Instrument") subordinating this Lease or attorning to the holder of any such Mortgage as Landlord may request. In the event that Tenant should fail to execute the Subordination Instrument promptly as requested, Tenant hereby irrevocably constitutes Landlord as its attorney-in-fact to execute the Subordination Instrument in Tenant's name, place, and stead, it being agreed that such power is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordone coupled with an interest.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. (a) The After the occurrence and during the continuance of an Event of Default, Seller hereby appoints Buyer as attorney-in-fact of Seller for the purpose of carrying out the provisions of this Agreement and taking any action and executing or endorsing any instruments that Buyer may deem necessary or advisable to accomplish the purposes hereof, which appointment as attorney-in-fact is irrevocable and coupled with an interest. With respect to each Transaction, each of the following events clauses (i) through (xviii) shall be deemed to be events an Event of default by Tenant Default under this LeaseAgreement:
(i) Tenant shall fail Seller fails to pay any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after repurchase the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:Purchased Loans upon the applicable Repurchase Date;
(ii) Tenant shall fail Seller fails to comply in all material respects with any other Non-Monetary provision of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultSection 4 hereof;
(iii) The leasehold hereunder demised shall be taken on execution an Act of Insolvency occurs with respect to Seller, Operating Partnership, Guarantor or other process of law in any action against TenantManager;
(iv) Tenant shall fail Seller, Operating Partnership or Guarantor makes a public disclosure or otherwise admits in writing that it is not Solvent or is not able or not willing to promptly move into, take possession perform any of and operate its business on the Premises when the Premises are ready for occupancy obligations hereunder or shall cease under any other agreement to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive dayswhich it is a party;
(v) Tenant either (A) the Transaction Documents shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting toany reason not cause, or requesting shall cease to cause, Buyer to be the relief afforded by owner free of any adverse claim of any of the bankruptcy lawsPurchased Loans, or (B) if a Transaction is recharacterized as a secured financing, the Transaction Documents with respect to any Transaction shall for any reason cease to create a valid first priority security interest in favor of Buyer in any of the Purchased Loans (in each case, other than due to the act or omission of Buyer);
(vi) Tenant makes if an assignment for event occurs which would constitute (a) an “event of default” under any Hedging Transaction or (b) a “termination event” or an “additional termination event” under any Hedging Transaction (and, in the benefit case of creditorsthis clause (b), Seller has failed to meet its obligation to pay the Early Termination Amount, if any, pursuant to the terms of such Hedging Transaction);
(vii) failure of Buyer to receive within one (1) Business Day after any Remittance Date the accreted value of the Price Differential (less any amount of such Price Differential previously paid by Seller to Buyer);
(viii) failure of Seller to make any other payment owing to Buyer which has become due, whether by acceleration or otherwise under the terms of this Agreement which failure is not remedied within the meaning of applicable period (in the bankruptcy laws or Tenant consents to the appointment case of a receiver failure pursuant to Section 4) or custodian for all or a substantial part three (3) Business Days (in the case of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxxany other such failure);
(xxxix) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy lawsany governmental, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissedregulatory, or such court order is not vacated self-regulatory authority shall have removed, suspended or such assumption or sequestration is not releasedterminated the material rights, privileges, or if operations of Seller, Operating Partnership, Guarantor or Manager;
(x) a Change of Control shall have occurred;
(xi) any representation made by Seller, Operating Partnership or Guarantor in any Transaction Document shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated (other than the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfactionrepresentations and warranties set forth in Section 10(b)(viii) of this Agreement made by Seller, which shall not be unreasonably deniedconsidered an Event of Default if incorrect or untrue in any material respect and which incorrect or untrue representation shall be solely used by Buyer as a basis to adjust the Market Value of the applicable Purchased Loan and to make determinations pursuant to Section 4(a) of this Agreement; provided further Seller shall not have made any such representation with actual knowledge that it was materially incorrect or untrue at the time made) and such representation breach continues unremedied for ten (10) Business Days after the earlier of receipt of notice thereof from Buyer or the discovery of such failure by the applicable Person;
(xii) Guarantor shall fail to observe any of the financial covenants set forth in the Guaranty or shall have defaulted or failed to perform under the Guaranty in any material respect;
(xiii) a final non-appealable judgment by any competent court in the United States of America having jurisdiction over Seller for the payment of money in an amount greater than $100,000 (in the case of Seller) or $5,000,000 (in the case of the Operating Partnership or Guarantor) shall have been rendered against Seller, Operating Partnership or Guarantor, unless execution of such judgment is stayed by the posting of cash or a bond or other collateral acceptable to Buyer in the amount of the judgment or otherwise is discharged (or provision is made for such discharge);
(xiv) Seller, Operating Partnership or Guarantor shall have defaulted or failed to perform under any note, indenture, loan agreement, guaranty, swap agreement or any other contract, agreement or transaction to which it is a party, which default (A) involves the failure to pay a monetary obligation in excess of $100,000 (in the case of Seller) or $5,000,000 (in the case of Operating Partnership or Guarantor), or (B) permits the acceleration of the maturity of obligations in excess of $100,000 (in the case of Seller) or $5,000,000 (in the case of Operating Partnership or Guarantor) by any other party to or beneficiary of such note, indenture, loan agreement, guaranty, swap agreement or other contract agreement or transaction; provided, however, that any such default, failure to perform or breach shall not constitute an Event of Default if Seller, Operating Partnership or Guarantor cures such default, failure to perform or breach, as the case may be, within the grace notice and/or cure period, if any, provided under the applicable agreement;
(xv) Seller shall fail to maintain on deposit in the Liquidity Reserve Account at least the Required Liquidity Amount;
(xvi) Manager resigns or is removed, terminated or otherwise no longer serves or is unable to serve as the asset manager and investment advisor of Guarantor pursuant to that certain Asset Management Agreement or Manager is in material breach of its duties or obligations under the Asset Management Agreement beyond any applicable notice and cure period and such Manager is not replaced with a successor manager reasonably acceptable to Buyer pursuant to an Asset Management Agreement acceptable to Buyer in its reasonable discretion within 60 days;
(xvii) any condition or circumstance shall exist which causes, constitutes or could reasonably be expected to cause or constitute a Material Adverse Effect; or
(viiixviii) The adjudication if Seller or Guarantor shall breach or fail to perform any of Tenant the terms, agreements, conditions, covenants or obligations applicable to such Person under this Agreement, any other Transaction Document or any Purchased Loan Document to which such Person is a party, other than as a bankruptor; orspecifically otherwise referred to in this definition of “Event of Default”, and such breach or failure to perform is not remedied within twenty (20) Business Days after written notice thereof to Seller from the applicable party or its successors or assigns (each of (i) through (xviii), an “Event of Default”).
(ixb) Tenant If an Event of Default shall attempt occur and be continuing, the following rights and remedies shall be available to assignBuyer:
(i) At the option of Buyer, transferexercised by written notice to Seller (which option shall be deemed to have been exercised, sublet even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall, if it has not already occurred, be deemed immediately to occur (the date on which such option is exercised or deemed to have been exercised being referred to hereinafter as the “Accelerated Repurchase Date”).
(ii) If Buyer exercises or is deemed to have exercised the option referred to in Section 14(b)(i) of this Agreement:
(A) Seller’s obligations hereunder to repurchase all or any part Purchased Loans shall become immediately due and payable on and as of its interests in the Premises or in this Lease without Landlord's prior written consent subject Accelerated Repurchase Date; and
(B) to the provisions extent permitted by applicable law, the Repurchase Price with respect to each Transaction (determined as of the Accelerated Repurchase Date) shall be increased by the aggregate amount obtained by daily application of, on a 360 day per year basis for the actual number of days during the period from and including the Accelerated Repurchase Date to but excluding the date of payment of the Repurchase Price (as so increased), (x) the Pricing Rate for such Transaction multiplied by (y) the outstanding Purchase Price for such Transaction (decreased by (I) any amounts actually remitted to Buyer by the Depository or Seller from time to time pursuant to Sections 4 or 5 of this Agreement and applied to such Repurchase Price, and (II) any amounts applied to the Repurchase Price pursuant to Section 19 above14(b)(iii) of this Agreement); and
(C) the Custodian shall, upon the request of Buyer, deliver to Buyer all instruments, certificates and other documents then held by the Custodian relating to the Purchased Loans.
b(iii) Upon the occurrence of an Event of Default with respect to Seller, Buyer may, upon giving prior notice to Seller, (A) immediately sell, at a public or private sale in a commercially reasonable manner and at such price or prices as Buyer may reasonably deem satisfactory any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more all of the following remedies:
Purchased Loans or (iB) Landlord shall have the rightin its sole discretion elect, at its electionin lieu of selling all or a portion of such Purchased Loans, to cancel and terminate this Lease and dispossess Tenant give Seller credit for such Purchased Loans in an amount equal to the market value of such Purchased Loans as determined by summary proceedings or other lawful means;
(ii) Landlord shall have Buyer in its sole discretion against the right to declare all amounts and rents due under this Lease aggregate unpaid Repurchase Price for the remainder of the existing term (such Purchased Loans and any applicable extension or renewal thereofother amounts owing by Seller under the Transaction Documents. The proceeds of any disposition of Purchased Loans effected pursuant to this Section 14(b)(iii) to shall be immediately due and payableapplied, and thereupon all rents and other charges due hereunder (v) first, to the end of actual, out-of-pocket costs and expenses reasonably incurred by Buyer in connection with Seller’s default; (w) second, the initial term and any renewal termamount, if applicableany, shall payable by Seller in the event any Hedging Transactions related to such Purchased Loans are being terminated; (x) third, to the Repurchase Price; (y) fourth, to any other outstanding obligation of Seller to Buyer or its Affiliates pursuant to this Agreement; and (z) fifth, to pay the surplus, if any, to whoever may be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary lawfully entitled to obtain receive such alternate source of rentsurplus.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord The parties recognize that it may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable possible to purchase or sell all of the Purchased Loans on a particular Business Day, or in a transaction with the same purchaser, or in the same manner because the market for any damages resulting to such Purchased Loans may not be liquid. In view of the Tenant from such action). All such remedies nature of Land- lord the Purchased Loans, the parties agree that liquidation of a Transaction or the Purchased Loans does not require a public purchase or sale and that a good faith private purchase or sale shall be cumulative deemed to have been made in a commercially reasonable manner. Accordingly, Buyer may elect, in its sole discretion, the time and not exclusivemanner of liquidating any Purchased Loans, and in addition, Landlord may pursue nothing contained herein shall (A) obligate Buyer to liquidate any other remedies that may be permitted by law Purchased Loans on the occurrence and during the continuance of an Event of Default or in equity. Forbearance by Landlord to enforce one or more liquidate all of the remedies herein provided upon an event of default shall not be deemed Purchased Loans in the same manner or construed to on the same Business Day or (B) constitute a waiver of such default any right or remedyremedy of Buyer.
c(v) This Paragraph 28 Seller shall be enforceable liable to Buyer for (A) the amount of all actual out-of-pocket expenses, including reasonable legal fees and expenses, actually incurred by Buyer in connection with or as a consequence of an Event of Default with respect to Seller, (B) all actual costs incurred in connection with the termination of Hedging Transactions, and (C) any other actual loss, damage, cost or expense directly arising or resulting from the occurrence of an Event of Default with respect to Seller.
(vi) Buyer shall have, in addition to its rights and remedies under the Transaction Documents, all of the rights and remedies provided by applicable federal, state, foreign, and local laws (including, without limitation, if the Transactions are recharacterized as secured financings, the rights and remedies of a secured party under the UCC of the State of New York, to the maximum extent permissible by applicable lawthat the UCC is applicable, and the unenforceability right to offset any mutual debt and claim), in equity, and under any other agreement between Buyer and Seller. Without limiting the generality of the foregoing, Buyer shall be entitled to set off the proceeds of the liquidation of the Purchased Loans against all of Seller’s obligations to Buyer pursuant to this Agreement, whether or not such obligations are then due, without prejudice to Buyer’s right to recover any deficiency.
(vii) Subject to the notice and grace periods set forth herein, Buyer may exercise any or all of the remedies available to Buyer immediately upon the occurrence of an Event of Default (other than with respect to Buyer) and at any time during the continuance thereof. All rights and remedies arising under the Transaction Documents, as amended from time to time, are cumulative and not exclusive of any portion hereof shall not thereby render unenforceable other rights or remedies which Buyer may have.
(viii) Buyer may enforce its rights and remedies hereunder without prior judicial process or hearing, and Seller hereby expressly waives any defenses Seller might otherwise have to require Buyer to enforce its rights by judicial process. Seller also waives any defense Seller might otherwise have arising from the use of nonjudicial process, disposition of any or all of the Purchased Loans, or from any other portionelection of remedies. Seller recognizes that nonjudicial remedies are consistent with the usages of the trade, are responsive to commercial necessity and are the result of a bargain at arm’s length.
d(ix) Landlord shall Upon the designation of any Accelerated Repurchase Date, Buyer may, without prior notice to Seller, set off any sum or obligation (whether or not be in default hereunder unless Landlord has arising under this Agreement, whether matured or unmatured, whether or not begun contingent and irrespective of the currency, place of payment or booking office of the sum or obligation) owed by Seller to cure Buyer or any failure Affiliate of its obligations hereunder within thirty Buyer against any sum or obligation (30whether or not arising under this Agreement, whether matured or unmatured, whether or not contingent and irrespective of the currency, place of payment or booking office of the sum or obligation) days after the receipt owed by Landlord Buyer or any Affiliate of Buyer to Seller. Buyer will give written notice from Tenant to the other party of any set off effected under this Section 14(b)(ix). If a sum or obligation is unascertained, Buyer may in good faith estimate that obligation and set-off in respect of the alleged failure estimate, subject to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) the relevant party accounting to pursue the cure thereofother when the obligation is ascertained. Except as otherwise specifically provided Nothing in this Lease, Section 14(b)(ix) shall be effective to create a charge or other security interest. This Section 14(b)(ix) shall be without prejudice and in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as addition to any covenant right of set-off, combination of accounts, lien or agreement contained in this Lease other rights to which any party is at any time otherwise entitled (whether by operation of law, contract or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordotherwise).
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Master Repurchase Agreement (NorthStar Real Estate Income Trust, Inc.)
Events of Default Remedies. (a) The following events shall be deemed to be events of default by Tenant under this Lease:
: (i) Tenant shall fail to pay any Rent rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days a after the date such Rent or other sums sum is due (with no notice being required of Landlord)due; hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision of this Lease or any other agreement between Landlord and TenantTenant including the Work Letter all of which terms, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default provisions and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days providedcovenants shall be deemed material; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The the leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
; (iv) Tenant shall fail to promptly move into, in or take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
Premises; (v) Tenant shall become insolvent or unable to pay its debts as they become due, due or Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
notifies Landlord that it anticipates either condition; (vi) Tenant makes an assignment for the benefit of creditors, within the meaning takes any action to or notifies Landlord that Tenant intends to file a petition under any section or chapter of the bankruptcy laws Federal Bankruptcy Act as amended, or under any similar law or statute of the United States or any State thereof, or a petition shall be filed against Tenant under any such statute or Tenant consents or any creditor of Tenant notifies Landlord that it knows such a petition will be filed or Tenant notifies Landlord that it expects such a petition to the appointment of be filed; or (vii) a receiver or custodian trustee shall be appointed for Tenant’s leasehold interest in the Premises or for all or a substantial part of its property; or SpanishRiverthe assets of Tenant.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant not arising from Tenant, ’s failure to pay any rent or other sums of money due hereunder within ten (10) days of the due dates and whether such default or defaults are enumerated in this Paragraph or not, then if Tenant fails to cure any such default within ten (10) days of written notice from Landlord, Landlord shall have the option to pursue any one or more of the following remedies:
: (i) Landlord shall have the right, right at its election, election to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
Tenant; or, (ii) Landlord shall have the right without terminating or cancelling this Lease to declare all amounts and rents due under this Lease for the remainder of the existing term (and or any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and or any renewal term, term if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's ’s account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term terms of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease. If Tenant is in default for any reason which would require written notice from Landlord, and if such default cannot reasonably be expected to be cured within the said ten (10) day period then Tenant shall have a reasonable period of time to effect such cure provided that Tenant promptly commences the cure and proceeds diligently to completion of same.
(c) In the event of any default by Tenant arising from the failure to pay rent or any other sum due hereunder within the ten (10) day period provided in subparagraph (a)(i) above, Landlord may immediately exercise any remedy provided in subparagraph (b) above without being first required to give Tenant written notice of such default.
(d) This Paragraph 27 shall be enforceable to the maximum extent not prohibited by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
(e) Landlord shall be in default hereunder in the event Landlord has not begun and pursued with reasonable diligence the cure of any failure of Landlord to meet its obligations hereunder within thirty (30) days of the receipt by Landlord of written notice from Tenant of the alleged failure to perform. In no event shall Tenant have the right to terminate or rescind this Lease as a result of Landlord’s default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and recession and hereby agrees that Tenant’s remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. In addition, Tenant hereby covenants that prior to the exercise of any such remedies it will give the mortgagees holding mortgages on the Building notice and reasonable time to cure any default by Landlord...
(and f) Tenant agrees to reimburse Land- lord Landlord on demand for any expenses which Landlord may incur occur in effecting compliance with Tenant's ’s obligations under this Lease lease and Tenant further agrees that Landlord shall not be liable for any such damages resulting to the Tenant from such action). All such remedies of Land- lord Landlord shall be cumulative and not exclusivecumulative, and in addition, addition Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Events of Default Remedies. (a) The following events shall be deemed to be events of default by Tenant under this Lease:
: (i) Tenant shall fail to pay any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision provisions of this Lease or any other agreement between Landlord and Tenant all of which terms, provisions and covenants shall be deemed material and such failure shall continue, if default in payment of Base Rental or any other sums due hereunder for five (5) business days after written notice to Tenant, and if applicable, after Landlord has provided such default is a non-monetary default it shall continue for thirty (30) days prior following written notice of such Non-Monetary Default and Tenant has failed thereof to cure such Non-Monetary Default within said thirty (30) days providedTenant; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Defaultnotwithstanding the foregoing, Landlord shall grant such additional reasonable time as may be necessary required to cure such Non-Monetary Default, but provide Tenant with notice of monetary default no more frequently than once in any twelve (12) calendar month period and no event shall Landlord grant more than ninety three (903) days times total during the Lease Term and following such one notice in any twelve (12) calendar month period or three (3) such notices during the Lease Term, Tenant shall be deemed in default as to cure a Non-Monetary default;
(iiiany further failure to pay Base Rental or other sums when due during such period, without any notice or demand being required(ii) The the leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
; (iviii) Tenant shall fail to promptly move into, into and take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten without written notice to Landlord; (10) consecutive days;
(viv) Tenant shall become insolvent or unable to pay its debts as they become due, or Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting notifies Landlord that it anticipates either condition; (v) Tenant takes any action to, or requesting notifies Landlord that Tenant intends to file a petition under any section or chapter of the relief afforded by National Bankruptcy Act, as amended, or under any similar law or statute of the bankruptcy laws;
United States or any State thereof; or a petition shall be filed against Tenant under any such statute or Tenant or any creditor of Xxxxxx’s notifies Landlord that it knows such a petition will be filed or Tenant notifies Landlord that it expects such a petition to be filed; or (vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian trustee shall be appointed for Xxxxxx’s leasehold interest in the Premises or for all or a substantial part of its property; or SpanishRiverthe assets of Tenant.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, and following the expiration of any cure period, when applicable, without cure of such default, Landlord shall have the option to pursue any one or more of the following remedies:
remedies without any further notice or demand for possession whatsoever (and without limiting the generality of the foregoing, Tenant hereby specifically waives any and all further notices or demand requirements imposed by applicable law): (i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess in which event Tenant by summary proceedings or other lawful means;
shall immediately surrender the Premises to Landlord; (ii) Landlord shall have the terminate Tenant’s right to declare all amounts occupy the Premises and rents due under this Lease for the remainder re-enter and take possession of the existing term Premises (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be acceleratedwithout terminating this Lease); however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under the terms of this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease Lease; and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action); and (iv) exercise all other remedies available to Landlord at law or in equity, including, without limitation, injunctive relief of all varieties. Notwithstanding the foregoing, as to an event of default, Tenant shall not be in default under this Lease until Tenant shall have received written notice of the nonmonetary default and thirty (30) days to cure the same as provided in 27(a) above. In the event Landlord elects to re-enter or take possession of the Premises after Xxxxxx’s default, Tenant hereby waives notice of such re-entry or repossession and of Landlord’s intent to re-enter or take possession. Landlord may, without prejudice to any other remedy which he may have for possession or arrearages in rent, expel or remove Tenant and any other person who may be occupying said Premises or any part thereof. In addition, the provisions of Paragraph 29 hereof shall apply with respect to the period from and after the giving of notice of such termination to Tenant. All such Landlord’s remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedydefault.
(c) This Paragraph 28 27 shall be enforceable to the maximum extent permissible not prohibited by applicable law, and the unenforceability of any portion hereof thereof shall not thereby render unenforceable any other portion. To the extent any provision of applicable law requires some action by Landlord to evidence or effect the termination of this Lease or to evidence the termination of Tenant’s right of occupancy, Tenant and Landlord hereby agree that thirty (30) days written notice from Landlord that comes to the attention of Tenant, its agents, servants or employees, which reflects Landlord’s intention to terminate, shall be sufficient to evidence and effect the termination herein provided for.
(d) Landlord shall not be in default hereunder unless in the event Landlord has not begun to and pursued with reasonable diligence the cure of any failure of Landlord to meet its obligations hereunder within thirty (30) days after of the receipt by Landlord of written notice from Tenant of the alleged failure to perform perform. In addition, Xxxxxx agrees to give any Mortgagees and/or Trust Deed Holders by Registered Mail, a copy of any Notice of Default served upon the Landlord, provided that prior to such notice Tenant has been notified, in writing, (by way of Notice of Assignment of Rents and does not continue SpanishRiver.Manchester.September 22Leases, 1997.ajm Initials: ----- ----- Page 15 (Tenantor otherwise) (Landlord) of the address of Such Mortgagees and/or Trust Deed Holders. Tenant further agrees that if Landlord shall have failed to pursue cure such default within the cure thereof. Except as otherwise specifically time provided for in this Lease, in no event then the Mortgagees and/or Trust Deed Holders shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in an additional) forty-five (45) days within which to cure such default or if such default cannot be cured within that time, then such additional time as may be necessary if within such forty-five (45) days, any alleged Mortgagee and/or Trust Deed Holder has commenced and is diligently pursuing the remedies necessary to cure such default. Notwithstanding anything , (including but not limited to the contrary contained hereincommencement of foreclosure proceedings, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedyif necessary to effect sure cure) in a proceeding instituted by either party to enforce that party's rights under which event this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordlease shall not be terminated while such remedies are being so diligently pursued.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Lease Agreement (Healthequity Inc)
Events of Default Remedies. a) The Each of the following events shall be deemed to be events constitute an Event of default by Tenant Default under this LeaseGuaranty:
(i) Tenant If any representation or warranty by Guarantor herein or in any writing furnished in connection with or pursuant to this Guaranty shall fail to pay be false in any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after material respect on the date such Rent or other sums is due (with no notice being required as of Landlord); hereinafter referred to as a "Monetary Default:which made;
(ii) Tenant shall fail to comply with If Guarantor defaults in the performance or observance of any other Non-Monetary provision agreement, covenant, term or condition contained in this Guaranty or in any of this Lease or any other agreement between Landlord and Tenant, if applicable, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultthe Loan Documents;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;If Guarantor shall:
(ivA) Tenant shall fail to promptly move into, take possession call a meeting of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes make an assignment for the benefit of creditors,
(B) file a petition in bankruptcy, within the meaning of the or be adjudicated insolvent or bankrupt,
(C) suffer an order for relief under any federal bankruptcy laws law, or Tenant consents petition or apply to any tribunal for the appointment of a receiver or custodian a trustee for all Guarantor or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)Guarantor's assets,
(xxxD) Xxx filing commence any proceedings under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect,
(E) have filed against Tenant Guarantor a petition, application or proceeding described above in subdivision (D) or such a petition, application or proceeding shall have been commenced against Guarantor, which remains undismissed or unstayed for a period of sixty (60) days or more,
(F) by any act or omission indicate Guarantor's consent to, approval of or acquiescence in any petition, application or proceeding described above in subdivision (D) or in the appointment of a petition in bankruptcy custodian, receiver or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or any trustee for all it or a any substantial part of its property without its consent any of Guarantor's property,
(G) suffer any such custodianship, receivership or the assuming trusteeship to continue undischarged for a period of custody forty-five (45) days or sequestration by a court more,
(H) conceal, remove or permit to be concealed or removed, any part of competent jurisdiction of all or substantially all of TenantGuarantor's property, and within thirty with intent to hinder, delay or defraud its creditors or any of them,
(30I) days thereafter such filing is make or suffer a transfer of any of its property which may be fraudulent under any bankruptcy, fraudulent conveyance or similar law,
(J) make any transfer of Guarantor's property to or for the benefit of a creditor at a time when other creditors similarly situated have not dismissedbeen paid,
(K) shall suffer or permit, while insolvent, any creditor to obtain a lien upon any of Guarantor's property through legal proceedings or such court order distraint which is not vacated or within forty-five (45) days from the date thereof,
(L) generally not pay Guarantor's debts as such assumption or sequestration is not releaseddebts become due, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viiiM) The adjudication there shall be an Event of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in Default under the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Security agreement. Upon the occurrence of any event or events an Event of default or other breach of this Lease by TenantDefault, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the rightLender, at its electionoption, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to may declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) sums guaranteed hereunder to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent become forthwith due and payable under the term terms of this Lease; and
(iv) Landlord may enter upon and with the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically effect provided in this LeaseGuaranty, in no event regardless of whether (i) a default by the Borrower shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting occurred under any of the foregoing Loan Documents or (ii) the Lender shall have exercised any of its rights or remedies (or under any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordthe Loan Documents.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Guaranty of Payment (Cargo Connection Logistics Holding, Inc.)
Events of Default Remedies. (a) The following events shall be deemed to be events of default by Tenant under this Lease:
: (i) Tenant shall fail to pay any Rent or any other sums of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:;
(ii) Tenant shall fail to comply with any other Non-Monetary provision provisions of this Lease or any other agreement between Landlord and Tenant all of which terms, provisions and covenants shall be deemed material and such failure shall continue, if default in payment of Base Rental or any other sums due hereunder for five (5) business days after written notice to Tenant, and if applicable, after Landlord has provided such default is a non-monetary default it shall continue for thirty (30) days prior following written notice of such Non-Monetary Default and Tenant has failed thereof to cure such Non-Monetary Default within said thirty (30) days providedTenant; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Defaultnotwithstanding the foregoing, Landlord shall grant such additional reasonable time as may be necessary required to cure such Non-Monetary Default, but provide Tenant with notice of monetary default no more frequently than once in any twelve (12) calendar month period and no event shall Landlord grant more than ninety three (903) days times total during the Lease Term and following such one notice in any twelve (12) calendar month period or three (3) such notices during the Lease Term, Tenant shall be deemed in default as to cure a Non-Monetary default;
(iiiany further failure to pay Base Rental or other sums when due during such period, without any notice or demand being required(ii) The the leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
; (iviii) Tenant shall fail to promptly move into, into and take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten without written notice to Landlord; (10) consecutive days;
(viv) Tenant shall become insolvent or unable to pay its debts as they become due, or Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting notifies Landlord that it anticipates either condition; (v) Tenant takes any action to, or requesting notifies Landlord that Tenant intends to file a petition under any section or chapter of the relief afforded by National Bankruptcy Act, as amended, or under any similar law or statute of the bankruptcy laws;
United States or any State thereof; or a petition shall be filed against Tenant under any such statute or Tenant or any creditor of Xxxxxx’s notifies Landlord that it knows such a petition will be filed or Tenant notifies Landlord that it expects such a petition to be filed; or (vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian trustee shall be appointed for Xxxxxx’s leasehold interest in the Premises or for all or a substantial part of its property; or SpanishRiverthe assets of Tenant.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, and following the expiration of any cure period, when applicable, without cure of such default, Landlord shall have the option to pursue any one or more of the following remedies:
remedies without any further notice or demand for possession whatsoever (and without limiting the generality of the foregoing, Tenant hereby specifically waives any and all further notices or demand requirements imposed by applicable law): (i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess in which event Tenant by summary proceedings or other lawful means;
shall immediately surrender the Premises to Landlord; (ii) Landlord shall have the terminate Tenant’s right to declare all amounts occupy the Premises and rents due under this Lease for the remainder re-enter and take possession of the existing term Premises (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be acceleratedwithout terminating this Lease); however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under the terms of this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease Lease; and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action); and (iv) exercise all other remedies available to Landlord at law or in equity, including, without limitation, injunctive relief of all varieties. Notwithstanding the foregoing, as to an event of default, Tenant shall not be in default under this Lease until Tenant shall have received written notice of the non-monetary default and thirty (30) days to cure the same as provided in 27(a) above. In the event Landlord elects to re-enter or take possession of the Premises after Xxxxxx’s default, Tenant hereby waives notice of such re-entry or repossession and of Landlord’s intent to re-enter or take possession. Landlord may, without prejudice to any other remedy which he may have for possession or arrearages in rent, expel or remove Tenant and any other person who may be occupying said Premises or any part thereof. In addition, the provisions of Paragraph 29 hereof shall apply with respect to the period from and after the giving of notice of such termination to Tenant. All such Landlord’s remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedydefault.
(c) This Paragraph 28 27 shall be enforceable to the maximum extent permissible not prohibited by applicable law, and the unenforceability of any portion hereof thereof shall not thereby render unenforceable any other portion. To the extent any provision of applicable law requires some action by Landlord to evidence or effect the termination of this Lease or to evidence the termination of Tenant’s right of occupancy, Tenant and Landlord hereby agree that thirty (30) days written notice from Landlord that comes to the attention of Tenant, its agents, servants or employees, which reflects Landlord’s intention to terminate, shall be sufficient to evidence and effect the termination herein provided for.
(d) Landlord shall not be in default hereunder unless in the event Landlord has not begun to and pursued with reasonable diligence the cure of any failure of Landlord to meet its obligations hereunder within thirty (30) days after of the receipt by Landlord of written notice from Tenant of the alleged failure to perform perform. In addition, Xxxxxx agrees to give any Mortgagees and/or Trust Deed Holders by Registered Mail, a copy of any Notice of Default served upon the Landlord, provided that prior to such notice Tenant has been notified, in writing, (by way of Notice of Assignment of Rents and does not continue SpanishRiver.Manchester.September 22Leases, 1997.ajm Initials: ----- ----- Page 15 (Tenantor otherwise) (Landlord) of the address of Such Mortgagees and/or Trust Deed Holders. Tenant further agrees that if Landlord shall have failed to pursue cure such default within the cure thereof. Except as otherwise specifically time provided for in this Lease, in no event then the Mortgagees and/or Trust Deed Holders shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in an additional) forty-five (45) days within which to cure such default or if such default cannot be cured within that time, then such additional time as may be necessary if within such forty-five (45) days, any alleged Mortgagee and/or Trust Deed Holder has commenced and is diligently pursuing the remedies necessary to cure such default. Notwithstanding anything , (including but not limited to the contrary contained hereincommencement of foreclosure proceedings, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedyif necessary to effect sure cure) in a proceeding instituted by either party to enforce that party's rights under which event this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlordlease shall not be terminated while such remedies are being so diligently pursued.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Lease Agreement (Healthequity Inc)
Events of Default Remedies. a(i) The following events Borrower shall be deemed to be events of in default by Tenant under this Lease:
Note if: (ia) Tenant shall fail the Borrower is in default under any of the notes issued pursuant to pay the PRH 1 Financing, (b) the Borrower fails to pay, when due, any Rent payment of principal or any other sums of money due hereunder and such failure shall continue interest under this Note, which continues for a period of ten (10) days after the due date of such Rent payment, (c) any action commenced by or against the Borrower under the Federal Bankruptcy Code, or other sums statute for the relief of creditors, which is due not dismissed within sixty (with no notice being required 60) days, (d) a Change of Landlord); hereinafter referred to as a "Monetary Default:;Control in the Borrower, or (e) liquidation of the Borrower.
(ii) Tenant shall fail Upon an event of default, the Lender, at his option, may (a) allow this Note to comply with any other Non-Monetary provision remain outstanding and continue to accrue interest at the Interest Rate or (b) declare the outstanding principal balance of and all accrued but unpaid interest on this Lease or any other agreement between Landlord Note to be immediately due and Tenantpayable. Further, if applicable, after Landlord has provided thirty (30) days prior written notice the event of such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment result of a receiver or custodian for all or a substantial part Change of its property; or SpanishRiver.Manchester.September 22Control, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's property, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk addition to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare the outstanding principal balance of and all amounts and rents due under accrued but unpaid interest on this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) Note to be immediately due and payable, the Lender shall (1) be entitled to be paid all financing received by the Borrower under this Note from and thereupon all rents after the date of such Change of Control, whether such financing is by the issuance of equity, debt or a combination of both, before such financing is used for any other purpose (“Change of Control Payments”) and other charges due hereunder (2) be entitled to receive a penalty payment from the Borrower equal to ten times (10x) the outstanding principal amount under this Note as of the date of such Change of Control (the “Change of Control Penalty”). Any amounts received by the Lender as Change of Control Payments shall be applied in the following order: first to the end Change of the initial term Control Penalty, second to accrued but unpaid interest and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary third to obtain such alternate source of rentprincipal.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Secured Convertible Promissory Note (Provectus Biopharmaceuticals, Inc.)
Events of Default Remedies. a(A) The occurrence of any of the following events shall constitute an Event of Default: (i) if there occurs a default or violation in the full and timely performance of any Obligation owing to Secured Party hereunder or under the Loan Documents; (ii) if any representation, warranty or certification made to Secured Party in, under or pursuant to this Agreement is false or misleading in any material respect as of the date deemed made; (iii) if there occurs any Event of Default (as defined therein) under any Loan Document, or an event occurs which, whether or not denominated as an Event of Default, expressly entitles Secured Party to accelerate repayment of any note and/or exercise its other remedies under the Loan Documents; or (iv) if the holder of any lien or security interest on any part of the Collateral (without implying Secured Party's consent to the creation or existence of any such lien or security interest) gives notice of public or private sale of any portion of the Collateral or institutes foreclosure or other proceedings for the enforcement of its remedies under any instrument creating such lien or security interest.
(B) All cash payments and other proceeds received by Secured Party with respect to the Collateral may be applied by Secured Party to payment of the Loans and to payment and performance of the other Obligations in such order and manner as Secured Party, may elect in its sole and absolute discretion or, at the election of Secured Party, may be held as additional security for the Obligations. Upon the occurrence of an Event of Default hereunder or Debtor otherwise fails to perform any of its duties, covenants, undertakings and responsibilities contained herein or in any of the other Loan Documents, Secured Party shall provide to Lender a written Notice of Default at the address set forth herein and provide to Debtor a period of seven (7) business days from the date of the Notice of Default in order to cure all defaults under this Agreement and/or any of the other Loan Documents. If any such defaults remain uncured as of the close of business on the seventh business day following the date of the Notice of Default, in addition to its other rights hereunder or any of the other Loan Documents: Secured Party may exercise any and all other rights, remedies and recourses under the Loan Documents or now or hereafter existing at law (including, without limitation, those granted by the applicable Uniform Commercial Code) or in equity. Notwithstanding anything herein to the contrary, if Debtor fails or refuses to pay or perform any obligation hereunder, then at any time thereafter, and without waiving or releasing any other right, remedy or recourse Secured Party may have, Secured Party may (but shall not be obligated to), after having provided the notice to Maker required herein, pay or perform such obligation for the amount of and at the expense of Debtor. Upon demand therefor, Debtor will reimburse Secured Party for all sums paid by Secured Party pursuant to this Paragraph, together will interest thereon at the Default Rate from the date incurred until reimbursed to Secured Party. All such sums shall be deemed to be events part of default the Obligations and shall be secured by Tenant all the security for the payment and performance of the Obligations.
(C) Pursuant to its rights under this Lease:
Paragraph 5(b), and subject to the terms and conditions hereof, Secured Party and any officer or agent of Secured Party is hereby constituted and appointed as true and lawful attorney-in-fact of Debtor with power: (i) Tenant shall fail to pay notify or require Debtor to notify any Rent and all account debtors or parties against which Debtor has a claim that the Receivables have been assigned to Secured Party and/or that Secured Party has a security interest therein and that all payments should be made to Secured Party; (ii) to endorse the name of Debtor upon any invoice, freight or express bill, bill of lading, storage ox xxrexxxxe receipt, drafts against account debtors or other obligors and if Receivables are a part of Collateral, to sign and endorse the name of Debtor on any assignments, verifications and notices in connection with Receivables, and any instrument or document relating thereto or to rights of Debtor therein; (iv) to notify the post office authorities to change the address for delivery of mail of Debtor to an address designated by Debtor and to receive, open and dispose of all mail addressed to Debtor; (v) and, to send requests for verification to account debtors or other obligors; (vi) to sell, assign, sue for, collect or compromise xxxment of all or any part of the Collateral in the name of Debtor or in its own name, or make any other sums disposition of money due hereunder Collateral, or any part thereof which disposition may be for cash, credit or any combination thereof, and Secured Party may purchase all or any part of the Collateral, at public or, if permitted by law, private sale, and in lieu of actual payment of such failure purchase price, may set-off the amount of such price against the Obligations; granting the Secured Party as the attorney-in-fact of Debtor, full power of substitution and full power to do any and all things necessary to be done in and about the premises as fully and effectually as Debtor might or could do but for this appointment, and hereby ratifying all that said attorney-in-fact shall continue lawfully do or cause to be done by virtue hereof. Neither Secured Party nor its agents shall be liable for a period any acts or omissions or for any error judgment of mistake of fact or law in its capacity as such attorney-in-fact. This power of attorney is coupled with an interest and shall be irrevocable so long as any Obligations shall remain outstanding. Secured Party may, in its discretion, at any such sale, restrict the prospective bidders or purchasers as to their number, nature of business or qualification given the nature of the Collateral and investment intention. Upon any such sale, Secured Party shall have the right to deliver, assign and transfer to the purchaser thereof the Collateral so sold. Each purchaser at any such sale shall hold the Collateral so sold absolutely free from any claim or right of whatsoever kind, including, without limitation, any equity or right of redemption of Debtor, which Debtor hereby specifically waives to the extent Debtor may lawfully do so. Secured Party shall give Debtor at least ten (10) days written notice of any such public or private sale. Such notice, in the case of a public sale, shall state the time and place fixed for such sale. Any such public sale shall be held at such time or times within ordinary business hours as Secured Party shall not be obligated to make any sale pursuant to such notice, but if no such sale is made or only a partial sale is made, subsequent sale. In the case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling price is paid by the purchaser thereof, but Secured Party shall not incur any liability in case of the failure of such purchaser to take up and pay for the Collateral so sold, and in case of any such failure, such Collateral may again be sold under and pursuant to and in compliance with the provisions hereof. Secured Party as attorney-in-fact for Debtor may, in the name and instead of Debtor, make and execute all conveyances, assignments and transfers of the Collateral sold pursuant to this Agreement. Nevertheless, Debtor shall, if so requested by Secured Party, ratify and confirm any sale or sales by executing and delivering to Secured Party, or to such purchaser or purchasers, all such instruments as may, in the judgment of Secured Party, be advisable for the purpose. The receipt of Secured Party for the purchase money paid at any such sale made by it shall be a sufficient discharge therefor to any purchaser of the Collateral or any portion thereof, and no such purchaser, after paying such purchase money and receiving such receipt, shall be bound to see to the date application of such Rent purchase money or any part thereof or in any manner whatsoever be answerable for any loss, misapplication or non-application of any such purchase money, or any part thereof, or be bound to inquire as to the authorization, necessity, expediency or regularity of any such sale. Secured Party shall have the right to enter and/or remain upon the premises of Debtor without any obligation to pay rent to Debtor or others, or any other sums place or places where any of the Collateral is due located and kept and: (with no notice being required i) remove Collateral therefrom to the premises of Landlord); hereinafter referred Secured Party or any agent of Secured Party, for such time as Secured Party may desire, in order to as a "Monetary Default:;
maintain, collect, sell and/or liquidate the Collateral, or (ii) Tenant use such premises, together with materials, supplies, books and records of Debtor, to maintain possession and/or the condition of the Collateral, and to prepare the Collateral for selling, liquidating or collection. Secured Party may require Debtor to assemble the Collateral and make it available to Secured Party at a place to be designated by Secured Party that is reasonably convenient to both parties. Debtor shall fail be liable for reasonable attorneys' fees and legal expenses incurred by Secured Party in enforcing any of its rights or remedies hereunder and, without limiting the rights of Secured Party; the proceeds of disposition of the Collateral may be applied, in Secured Party's discretion, to comply payment of such reasonable attorneys' fees and legal expenses.
(D) The proceeds of any sale of all or any part of the Collateral shall be applied in the following order or priorities: FIRST, to the payment of all costs and expenses of such sale, including, without limitation, reasonable compensation to Secured Party, its agents and attorneys, and all other expenses, liabilities and advances incurred or made by Secured Party, its agents and attorneys, in connection with such sale, and any other Non-Monetary provision unreimbursed expenses for which Secured Party may be reimbursed pursuant hereto; SECOND, to the payment of this Lease the Loans in such priority as Secured Party shall choose with no amounts applied to payment of principal until all interest has been paid; THIRD, to the payment or satisfaction of any other agreement between Landlord Obligations; and TenantFOURTH, if applicableto the payment to Debtor, after Landlord has provided thirty (30) days prior written notice of such Non-Monetary Default and Tenant has failed its successors or assigns, or to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as whomsoever may be necessary lawfully entitled to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary default;
(iii) The leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on receive the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for more than ten (10) consecutive days;
(v) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or for reorganization under the bankruptcy laws or an admission, answer or other responsive pleading consenting tosame, or requesting the relief afforded by the bankruptcy laws;
(vi) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws or Tenant consents to the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian or trustee for all or a substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's propertymay direct, and within thirty (30) days thereafter such filing is not dismissed, or such court order is not vacated or such assumption or sequestration is not released, or if the Tenant does not bond off the risk to Landlord to Landlord's reasonable satisfaction, which shall not be unreasonably denied; or
(viii) The adjudication of Tenant as a bankruptor; or
(ix) Tenant shall attempt to assign, transfer, sublet all or any part of its interests in the Premises or in this Lease without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event or events of default or other breach of this Lease by Tenant, whether enumerated in this Paragraph or not, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the right, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord shall have the right to declare all amounts and rents due under this Lease for the remainder of the existing term (and any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rent.
(iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received surplus then remaining from such reletting and the rent due and payable under the term of this Lease; and
(iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action). All such remedies of Land- lord shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedyproceeds.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Security Agreement (Dynamic Biometric Systems, Inc.)
Events of Default Remedies. (a) The occurrence of any one or more of the following events shall be deemed to be events constitute an "Event of default by Tenant under this LeaseDefault" hereunder:
(i) Tenant shall fail Borrower’s failure to pay any Rent or amount payable under either of the Notes in accordance with the terms thereof; provided, however, that Borrower shall have three (3) business days in which to cure any other sums failure to pay interest due under any of money due hereunder and such failure shall continue for a period of ten (10) days after the date such Rent or other sums is due (with no notice being required of Landlord); hereinafter referred to as a "Monetary Default:Notes;
(ii) Tenant shall fail Borrower’s failure to comply issue any Common Stock issuable under any of the Convertible Notes in accordance with any other Non-Monetary provision the terms thereof upon Lender’s exercise of this Lease or any other agreement between Landlord and Tenantthe Conversion Right, if applicable, after Landlord has provided thirty (30) days prior written notice of as defined in such Non-Monetary Default and Tenant has failed to cure such Non-Monetary Default within said thirty (30) days provided; however, if such default cannot be cured within thirty (30) days and if Tenant is diligently attempting to cure such Default, Landlord shall grant such additional reasonable time as may be necessary to cure such Non-Monetary Default, but in no event shall Landlord grant more than ninety (90) days to cure a Non-Monetary defaultConvertible Note;
(iii) The leasehold hereunder demised shall be taken on execution or other process Borrower’s breach of law any representation and warranty made to Lender in any action against Tenant;
(iv) Tenant shall fail to promptly move into, take possession of and operate its business on the Premises when the Premises are ready for occupancy or shall cease to do business in or vacate or abandon any substantial portion of the Premises for Transaction Documents or Borrower’s breach of any covenant under any of the Transaction Documents which is not cured within ten (10) business days of the earlier of Borrower learning of such breach or of notice thereof from Lender; provided, however, that if the cure will take more than ten (10) consecutive daysbusiness days and Borrower is diligently pursuing such cure during such ten (10) business day period, then an Event of Default shall not occur with respect to such breach if it is cured within twenty (20) business days of the earlier of an officer of Borrower learning of such breach or receipt by Borrower of notice thereof from Lender;
(viv) Tenant shall become insolvent or unable to pay its debts as they become due, Tenant files a petition in bankruptcy or Borrower (A) has an order for reorganization relief entered against it under the bankruptcy laws or an admissionfederal Bankruptcy Code, answer or other responsive pleading consenting to, or requesting the relief afforded by the bankruptcy laws;
(viB) Tenant makes an assignment for the benefit of creditors, within the meaning of the bankruptcy laws (C) applies for or Tenant consents to seeks the appointment of a receiver or custodian for all or a substantial part of its property; or SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 00 (Xxxxxx) (Xxxxxxxx)
(xxx) Xxx filing against Tenant of a petition in bankruptcy or for reorganization under the bankruptcy laws, the adjudication of Tenant as a bankrupt, the entry of a court order appointing a receiver, custodian liquidator, assignee, trustee or trustee other similar official for all it or a of any substantial part of its property without its consent or the assuming of custody or sequestration by a court of competent jurisdiction of all or substantially all of Tenant's propertyany such official is appointed, other than upon Borrower’s request, and within such unrequested appointment continues for sixty (60) days, (D) institutes proceedings seeking an order for relief under the federal Bankruptcy Code or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or any of its debts under other applicable federal or state law relating to creditor rights and remedies, or any such proceeding is filed against it, other than upon Borrower’s request, and such unrequested proceeding continues undismissed or unstayed for thirty (30) days thereafter such filing is not dismisseddays, or (E) takes corporate action in furtherance of any of the foregoing actions;
(v) the occurrence and continuance of any default under any lease or agreement for borrowed money having an outstanding principal amount in excess of $100,000 that gives the lessor or the creditor of such court order is not vacated indebtedness, as applicable, the right to accelerate the lease payments or such assumption or sequestration is not releasedthe indebtedness, as applicable, or if the Tenant does not bond off right to exercise any rights or remedies with respect to any of the risk to Landlord to Landlord's reasonable satisfaction, Collateral;
(vi) the entry of any judgment or order against Borrower which shall not be unreasonably deniedremains unsatisfied or undischarged and in effect for forty-five (45) days after such entry without a stay of enforcement or execution;
(vii) the occurrence of a Change of Control; or
(viii) The adjudication any material portion of Tenant as Borrower’s assets is attached, seized, subjected to a bankruptor; orwrit or distress warrant, or is levied upon, or comes into the possession of any trustee, receiver or person acting in a similar capacity and such attachment, seizure, writ or distress warrant or levy has not been removed, discharged or rescinded within ten (10) business days, or Borrower is enjoined, restrained, or in any way prevented by court order from continuing to conduct all or any material part of its business affairs.
(ixb) Tenant Upon the occurrence and during the continuance of any Event of Default, Lender, may at any time, do any of the following:
(i) accelerate the payment of the amounts owing under the Notes;
(ii) enforce the Notes by exercise of the rights and remedies under this Agreement or granted to Lender by applicable law; and
(iii) exercise, in addition to all other rights and remedies granted in this Agreement, all rights and remedies of a secured party under the UCC and other applicable laws.
(c) Without limiting the generality of the foregoing provisions in Section 5(b), Lender shall attempt have the right to assign, transfer, sublet sell or otherwise dispose of all or any part of its interests the Collateral, either at public or private sale, in the Premises lots or in this Lease bulk, for cash or for credit, with or without Landlord's prior written consent subject to the provisions of Section 19 above.
b) Upon the occurrence of any event warranties or events of default or other breach of this Lease by Tenantrepresentations, whether enumerated and upon such terms and conditions, all as Lender, in this Paragraph or notits sole discretion, Landlord shall have the option to pursue any one or more of the following remedies:
(i) Landlord shall have the rightmay deem advisable, at its election, to cancel and terminate this Lease and dispossess Tenant by summary proceedings or other lawful means;
(ii) Landlord it shall have the right to declare purchase at any such sale. Borrower agrees that a notice sent at least fifteen (15) days before the time of any intended public sale or of the time after which any private sale or other disposition of the Collateral is to be made shall be reasonable notice of such sale or other disposition. The proceeds of any such sale or other Collateral disposition shall be applied, first to the expenses of retaking, holding, storing, processing and preparing for sale, selling, and the like, and to Lender's reasonable and documented attorneys’ fees and legal expenses, and then to the Obligations and to the payment of any other amounts required by applicable law, after which Lender shall account to Borrower for any surplus proceeds. If, upon the sale or other disposition of the Collateral, the proceeds thereof are insufficient to pay all amounts and rents due under this Lease to which Lender is legally entitled, Borrower shall be liable for the remainder deficiency, together with interest thereon at the default rate specified in the Notes, and the reasonable and documented fees of any attorneys Lender employs to collect such deficiency; provided, however, that the foregoing shall not be deemed to require Lender to resort to or initiate proceedings against the Collateral prior to the collection of any such deficiency from Borrower. To the extent permitted by applicable law, Borrower waives all claims, damages and demands against Lender arising out of the existing term (and any applicable extension retention or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end sale or lease of the initial term Collateral or other exercise of Lender's rights and any renewal term, if applicable, shall be accelerated; however, Landlord shall credit Tenant for any re-renting income for the Premises, after deducting Landlord's costs necessary to obtain such alternate source of rentremedies with respect thereto.
(iiid) Landlord may elect to enter and repossess To the Premises and relet the Premises for Tenant's accountextent permitted by law, holding Tenant liable in damages for all expenses incurred Borrower covenants that it will not at any time insist upon or plead, or in any manner whatever claim or take any benefit or advantage of, any stay or extension law now or at any time hereafter in force, nor claim, take or insist upon any benefit or advantage of or from any law now or hereafter in force providing for the valuation or appraisal of the Collateral or any part thereof, prior to any sale or sales thereof to be made pursuant to any provision herein contained, or the decree, judgment or order of any court of competent jurisdiction; or, after such reletting sale or sales, claim or exercise any right under any statute now or hereafter made or enacted by any state or otherwise to redeem the property so sold or any part thereof, and, to the full extent legally permitted, hereby expressly waives all benefit and advantage of any such law or laws, and covenants that it will not invoke or utilize any such law or laws or otherwise hinder, delay or impede the execution of any power herein granted and delegated to Lender, but will suffer and permit the execution of every such power as though no such power, law or laws had been made or enacted.
(e) Any sale, whether under any power of sale hereby given or by virtue of judicial proceedings, shall operate to divest all Borrower's right, title, interest, claim and demand whatsoever, either at law or in equity, in and to the Collateral sold, and shall be a perpetual bar, both at law and in equity, against Borrower, its successors and assigns, and against all persons and entities claiming the Collateral sold or any part thereof under, by or through Borrower, its successors or assigns.
(f) Borrower appoints Lender, and any officer, employee or agent of Lender, with full power of substitution, as Borrower's true and lawful attorney-in-fact, effective as of the date hereof, with power, in its own name or in the name of Borrower, during the continuance of an Event of Default, to endorse any notes, checks, drafts, money orders, or other instruments of payment in respect of the Collateral that may come into Lender's possession, to sign and endorse any drafts against debtors, assignments, verifications and notices in connection with accounts, and other documents relating to Collateral; to pay or discharge taxes or Liens at any time levied or placed on or threatened against the Collateral; to demand, collect, issue receipt for, compromise, settle and sxx for monies due in respect of the Collateral; to notify parties obligated with respect to the Collateral to make payments directly to Lender; and, generally, to do, at Lender's option and at Borrower's expense, at any difference between time, or from time to time, all acts and things which Lender deems necessary to protect, preserve and realize upon the amount of rent received from such reletting Collateral and Lender's security interest therein to effect the rent due and payable under the term intent of this LeaseAgreement, all as fully and effectually as Borrower might or could do; andprovided that Lender provides Borrower with prompt notice of such actions having been taken and Borrower hereby ratifies all that said attorney shall lawfully do or cause to be done by virtue hereof. This power of attorney shall be irrevocable as long as any of the Obligations are outstanding.
(ivg) Landlord may enter upon the Premises All of Lender's rights and do whatever Tenant is obligated to do under this Lease (and Tenant agrees to reimburse Land- lord on demand for any expenses which Landlord may incur in effecting compliance remedies with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be liable for any damages resulting respect to the Tenant from such action). All such remedies of Land- lord Collateral, whether established hereby or by any other agreements, instruments or documents or by law shall be cumulative and not exclusive, and in addition, Landlord may pursue any other remedies that may be permitted by law exercised singly or in equity. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedyconcurrently.
c) This Paragraph 28 shall be enforceable to the maximum extent permissible by applicable law, and the unenforceability of any portion hereof shall not thereby render unenforceable any other portion.
d) Landlord shall not be in default hereunder unless Landlord has not begun to cure any failure of its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform and does not continue SpanishRiver.Manchester.September 22, 1997.ajm Initials: ----- ----- Page 15 (Tenant) (Landlord) to pursue the cure thereof. Except as otherwise specifically provided in this Lease, in no event shall Tenant have the right to terminate or rescind this Lease or to offset the Rent amount due Landlord as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the mortgagees on the Property written notice and a reasonable period of time in which to cure any alleged default. Notwithstanding anything to the contrary contained herein, nothing shall prevent Tenant from maintaining or asserting any of the foregoing remedies (or any other remedy) in a proceeding instituted by either party to enforce that party's rights under this Lease. Tenant is only prevented from unilaterally withholding rent without filing its own cause of action versus Landlord.
e) TENANT HEREBY WAIVES ANY RIGHT IT OR ITS SUCCESSORS OR ASSIGNS MAY HAVE TO A JURY TRIAL IN ANY LITIGATION BETWEEN LANDLORD AND TENANT ARISING OUT OF OR RELATING TO THIS LEASE. TENANT ACKNOWLEDGES THAT THIS PROVISION WAS A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.
Appears in 1 contract
Samples: Purchase Agreement (DSL Net Inc)
