Common use of Landlord’s Failure to Perform Clause in Contracts

Landlord’s Failure to Perform. In the event Landlord fails to commence the repair of the Premises as required by Section 9.2 above ("Landlord Repair Obligations") and such failure to commence such repair(s) continues at the end of thirty (30) days following Landlord's receipt of written notice from Tenant stating with particularity the nature of such failure, Tenant shall simultaneously give Landlord and Landlord's mortgagee (provided Tenant has been provided written notice of the address of such mortgagee) written notice specifying such default and containing the following phrase (or substantially similar to the following phrase) on page 1 of the notice in all capital letters and boldface type (or it shall not be deemed validly given to Landlord) "YOUR FAILURE TO COMMENCE THE CURE OF LANDLORD'S REPAIR OBLIGATIONS SET FORTH IN THIS NOTICE WITHIN TEN (10) BUSINESS DAYS SHALL ENTITLE THE UNDERSIGNED TO CURE SUCH DEFAULT AT LANDLORD'S EXPENSE WITHOUT FURTHER NOTICE". Landlord shall thereupon have ten (10) business days in which to commence to cure the applicable Landlord Repair Obligation. In addition, Landlord's mortgagee shall have the right (but not the obligation) to cure or remedy Landlord's Repair Obligations upon the terms and conditions of any SNDA (as defined in Section 17.2 below) entered into by and between Tenant and any such lender, and if no such SNDA exists, then upon the terms and conditions described in Section 18.15. In the event Landlord fails to commence to cure the applicable Landlord Repair Obligation within said ten (10) business day period and Tenant undertakes a Landlord Repair Obligation, Tenant shall use a qualified, licensed and bondable contractor which normally and regularly performs similar work on concrete tilt-up industrial buildings. If Tenant thereafter delivers to Landlord an invoice by Tenant of its costs of taking action which Tenant claims should have been taken by Landlord (the "Tenant Invoice"), and if such Tenant Invoice sets forth a reasonably particularized breakdown of its costs and expenses in connection with undertaking such Landlord Repair Obligation, then Tenant shall be entitled to offset against Base Rent the amount set forth in such Tenant Invoice following delivery of the additional written notice described below; provided, however, the amount of offset during any single month shall not exceed the greater of (A) fifteen percent (15%) of the total Base Rent payable by Tenant to Landlord for each applicable month or (B) the amount necessary to amortize fully Tenant's costs of cure (plus interest at ten percent (10%) per annum on such costs) from the date of completion of such cure to the expiration date of the Lease Term (without regard to any unexercised renewal options), but in no event greater than twenty percent (20%) of the total monthly Base Rent for any one month. The unpaid balance of the Tenant's Invoice, if any, shall bear interest at an annual rate of ten percent (10%). If, at any time, Landlord delivers to Tenant a written objection to Tenant's claim that a particular Landlord Repair Obligation is not required under the terms of this Lease, setting forth with reasonable particularity Landlord's reasons for its claim that such repair action did not have to be taken by Landlord pursuant to the terms of this Lease, then Tenant shall not be entitled to such offset, but as Tenant's sole remedy, Tenant may proceed to claim a Landlord default and, if elected by either Landlord or Tenant, the matter shall proceed to resolution by arbitration pursuant to the arbitration procedures set forth in attached Exhibit J. The costs of such arbitration (including reasonable attorneys fees and costs awarded to the prevailing party, if any) shall be paid to the prevailing party in the arbitration if and to the extent awarded by the arbitrator. In the event that Landlord fails to pay any amount to Tenant within twenty (20) days following delivery of the Tenant Invoice, then Tenant may provide to Landlord a written demand therefor ("Final Demand") which contains the following phrase (or substantially similar to the following phrase) on page 1 of the notice in all capital letters and boldface type (or it shall not be deemed validly delivered to Landlord) "YOUR FAILURE TO REIMBURSE TENANT AS REQUIRED HEREIN WITHIN FIFTEEN (15) DAYS SHALL ENTITLE THE UNDERSIGNED TO EXERCISE CERTAIN OFFSET RIGHTS AS SET FORTH IN THE LEASE WITHOUT FURTHER NOTICE." If Landlord fails to pay to Tenant the amount due to Tenant within fifteen (15) days following Landlord's receipt of the Final Demand or if Landlord fails to pay any award granted to Tenant pursuant to an arbitration proceeding in the manner described above within the time frame established pursuant to any such proceeding, then Tenant may offset from the next installments of rent and other charges coming due under this Lease the full amount owed by Landlord to Tenant (together with all accrued interest).

Landlord’s Failure to Perform. If Landlord fails to perform any of its oblig.1tions hereunder, Landlord shall not be in default andTenant shall not have any rights or remedies growing out of such failure unlessTemml gives Landlord written notice selling forth in reasonable detail the nature and extent of such failure and such failure is not cured within thirty (30) duys following Landlord's receipt of such notice or such longer period as may otherwise be provided herein. If such failure cannot reasonably be cured within thirty (30) days, the length for curing shall be extended as reasonably required. In the event that Landlord fails to commence cure any such default within the repair time periods prescribed by this Lease,Tenant shall be entitled to enforce all remedies available at law or in equity, excluding consequential, punitive or speculative damages; provided, however, in no event shall Tenant's remedies for a failure of Landlord to perform its obligations under this Lease include the termination of this Lease unless (i) following the expiration of the Premises as required by aforementioned notice and cure period,Tenant gives Landlord a second (2nd) written notice referencing this Section 9.2 above and setting forth in reasonable detail the nature and extent of such failure, ("Landlord Repair Obligations"ii) and such failure to commence such repair(s) continues at the end of is not cured within thirty (30) days following Landlord's receipt of written notice from Tenant stating with particularity the nature of such failure, Tenant shall simultaneously give Landlord and Landlord's mortgagee second (provided Tenant has been provided written notice of the address of such mortgagee2"") written notice specifying such default and containing the following phrase (or substantially similar to the following phrase) on page 1 of the notice in all capital letters and boldface type (or it shall not be deemed validly given to Landlord) "YOUR FAILURE TO COMMENCE THE CURE OF LANDLORD'S REPAIR OBLIGATIONS SET FORTH IN THIS NOTICE WITHIN TEN (10) BUSINESS DAYS SHALL ENTITLE THE UNDERSIGNED TO CURE SUCH DEFAULT AT LANDLORD'S EXPENSE WITHOUT FURTHER NOTICE". Landlord shall thereupon have ten (10) business days in which to commence to cure the applicable Landlord Repair Obligation. In addition, Landlord's mortgagee shall have the right (but not the obligation) to cure or remedy Landlord's Repair Obligations upon the terms and conditions of any SNDA (as defined in Section 17.2 below) entered into by and between Tenant and any such lendernotice, and if no (iii) such SNDA exists, then upon the terms and conditions described in Section 18.15. In the event failure of Landlord fails to commence to cure the applicable Landlord Repair Obligation within said ten (10) business day period and Tenant undertakes a Landlord Repair Obligation, Tenant shall use a qualified, licensed and bondable contractor which normally and regularly performs similar work on concrete tilt-up industrial buildings. If Tenant thereafter delivers to Landlord an invoice by Tenant of perform its costs of taking action which Tenant claims should have been taken by Landlord (the "Tenant Invoice"), and if such Tenant Invoice sets forth a reasonably particularized breakdown of its costs and expenses in connection with undertaking such Landlord Repair Obligation, then Tenant shall be entitled to offset against Base Rent the amount set forth in such Tenant Invoice following delivery of the additional written notice described below; provided, however, the amount of offset during any single month shall not exceed the greater of (A) fifteen percent (15%) of the total Base Rent payable by Tenant to Landlord for each applicable month or (B) the amount necessary to amortize fully Tenant's costs of cure (plus interest at ten percent (10%) per annum on such costs) from the date of completion of such cure to the expiration date of the Lease Term (without regard to any unexercised renewal options), but in no event greater than twenty percent (20%) of the total monthly Base Rent for any one month. The unpaid balance of the Tenant's Invoice, if any, shall bear interest at an annual rate of ten percent (10%). If, at any time, Landlord delivers to Tenant a written objection to Tenant's claim that a particular Landlord Repair Obligation is not required under the terms of this Lease, setting forth with reasonable particularity Landlord's reasons for its claim that such repair action did not have to be taken by Landlord pursuant to the terms of this Lease, then Tenant shall not be entitled to such offset, but as Tenant's sole remedy, Tenant may proceed to claim a Landlord default and, if elected by either Landlord or Tenant, the matter shall proceed to resolution by arbitration pursuant to the arbitration procedures set forth in attached Exhibit J. The costs of such arbitration (including reasonable attorneys fees and costs awarded to the prevailing party, if any) shall be paid to the prevailing party in the arbitration if and to the extent awarded by the arbitrator. In the event that Landlord fails to pay any amount to Tenant within twenty (20) days following delivery of the Tenant Invoice, then Tenant may provide to Landlord a written demand therefor ("Final Demand") which contains the following phrase (or substantially similar to the following phrase) on page 1 of the notice in all capital letters and boldface type (or it shall not be deemed validly delivered to Landlord) "YOUR FAILURE TO REIMBURSE TENANT AS REQUIRED HEREIN WITHIN FIFTEEN (15) DAYS SHALL ENTITLE THE UNDERSIGNED TO EXERCISE CERTAIN OFFSET RIGHTS AS SET FORTH IN THE LEASE WITHOUT FURTHER NOTICE." If Landlord fails to pay to Tenant the amount due to Tenant within fifteen (15) days following Landlord's receipt of the Final Demand or if Landlord fails to pay any award granted to Tenant pursuant to an arbitration proceeding in the manner described above within the time frame established pursuant to any such proceeding, then Tenant may offset from the next installments of rent and other charges coming due obligations under this Lease renders the full amount owed by Landlord to Tenant Premises wholly untenantable for a period of more than thirty (together with all accrued interest)30) consecutive days, casualty, condemnation, and Force Majeure Events excepted.

Landlord’s Failure to Perform. In the event Landlord fails to commence the repair of the Premises as required by Section 9.2 above under this Lease ("Landlord Repair Obligations") and such failure to commence such repair(s) continues at the end of thirty (30) days following Landlord's receipt of written notice from Tenant stating with particularity the nature of such failure, Tenant shall simultaneously give Landlord and Landlord's mortgagee (provided Tenant has been provided written notice of the address of such mortgagee) written notice specifying such default and containing the following phrase (or substantially similar to the following phrase) on page 1 of the notice in all capital letters and boldface type (or it shall not be deemed validly given to Landlord) "YOUR FAILURE TO COMMENCE THE CURE OF LANDLORD'S REPAIR OBLIGATIONS SET FORTH IN THIS NOTICE WITHIN TEN (10) BUSINESS DAYS SHALL ENTITLE THE UNDERSIGNED TO CURE SUCH DEFAULT AT LANDLORD'S EXPENSE WITHOUT FURTHER NOTICE"" or shall contain substantially the same text. Landlord shall thereupon have ten (10) business days in which to commence to cure the applicable Landlord Repair Obligation. In addition, Landlord's mortgagee shall have the right (but not the obligation) to cure or remedy Landlord's Repair Obligations upon during the terms and conditions period that is permitted to Landlord hereunder, plus an additional period of any SNDA fifteen (as defined in Section 17.2 below15) entered into by and between Tenant and any such lenderdays, and Tenant will accept such curative or remedial action taken by Landlord's mortgagee with the same effect as if no such SNDA exists, then upon the terms and conditions described in Section 18.15action had been taken by Landlord. In the event Landlord fails to commence to cure the applicable Landlord Repair Obligation within said ten (10) business day period and Tenant undertakes a Landlord Repair Obligation, Tenant shall use a qualifiedits commercially reasonable efforts to use those contractors used by Landlord in the construction of the Building for the applicable required work unless such contractors are unwilling or unable to perform, or timely perform, such work, in which event Tenant may utilize the services of any other qualified and licensed and bondable contractor which normally and regularly performs similar work on concrete tilt-up industrial commercial buildings. If Landlord does not deliver a detailed written objection to Tenant thereafter delivers to Landlord within fifteen (15) days after receipt of an invoice by Tenant of its costs of taking action which Tenant claims should have been taken by Landlord (the "Tenant Invoice"), and if such Tenant Invoice sets forth a reasonably particularized breakdown of its costs and expenses in connection with undertaking such Landlord Repair Obligation, then Tenant shall be entitled to offset against Base Rent reimbursement from Landlord for the amount set forth in such Tenant Invoice following delivery of the additional written notice described below; provided, however, the amount of offset during any single month shall not exceed the greater of (A) fifteen percent (15%) of the total Base Rent payable by Tenant to Landlord for each applicable month or (B) the amount necessary to amortize fully Tenant's costs of cure (plus interest at ten percent (10%) per annum on such costs) from the date of completion of such cure to the expiration date of the Lease Term (without regard to any unexercised renewal options), but in no event greater than twenty percent (20%) of the total monthly Base Rent for any one month. The unpaid balance of the Tenant's Invoice, if any, shall bear interest at an annual rate of ten percent (10%). If, at any timehowever, Landlord delivers to Tenant, within fifteen (15) days after receipt of the Tenant Invoice, a written objection to Tenant's claim that a particular Landlord Repair Obligation is not required under the terms payment of this Leasesuch Tenant Invoice, setting forth with reasonable particularity Landlord's reasons for its claim that such repair action did not have to be taken by Landlord pursuant to the terms APPLIX, INC. LEASE AGREEMENT of this LeaseLease or that the charges are excessive (in which case Landlord shall pay the amount it contends would not have been excessive), then Tenant shall not be entitled to such offsetreimbursement, but as Tenant's sole remedy, Tenant may proceed to claim a Landlord default and, if elected by either Landlord or Tenant, the matter shall proceed to resolution by arbitration pursuant to the arbitration procedures set forth in attached Exhibit J. arbitration. The costs of such arbitration (including reasonable attorneys fees and costs awarded to the prevailing party, if any) shall be paid to the prevailing party in the arbitration if and to the extent awarded by the arbitrator. In the event that (a) Landlord fails to pay any such amount to Tenant within twenty (20) days following delivery of the Tenant Invoice, or (b) if Landlord timely objects to any portion of such Tenant Invoice and the matter proceeds to arbitration in the manner described above, Landlord fails to pay any amount awarded to Tenant within twenty (20) days following the date of such award, then Tenant may commence legal proceedings against Landlord for the collection thereof including recovery of Tenant's reasonable costs and expenses (including reasonable attorney's fees); PROVIDED, HOWEVER, if, prior to the time of such Landlord default, Landlord had conveyed all of its right, title and interest in the Building to an unrelated third party (the "New Landlord"), then Tenant may provide to such New Landlord with a final written demand therefor for reimbursement (the "Final DemandFINAL DEMAND") which contains the following phrase (or substantially similar to the following phrase) on page 1 of the notice in all capital letters and boldface type (or it shall not be deemed validly delivered to Landlord) "YOUR FAILURE TO REIMBURSE TENANT AS REQUIRED HEREIN WITHIN FIFTEEN (15) DAYS SHALL ENTITLE THE UNDERSIGNED TO EXERCISE CERTAIN OFFSET RIGHTS AS SET FORTH IN THE LEASE WITHOUT FURTHER NOTICE." or shall contain substantially the same text. If the New Landlord fails to pay to Tenant the amount due to Tenant within fifteen (15) days following the New Landlord's receipt of the Final Demand or if Landlord fails to pay any award granted to Tenant pursuant to an arbitration proceeding in the manner described above within the time frame established pursuant to any such proceedingDemand, then Tenant may offset from the next installments of rent and other charges coming due under this Lease the full amount owed by the New Landlord to Tenant (together with all interest accrued interestthereon at the Applicable Interest Rate), provided, however, that the amount of offset during any single month shall not exceed the greater of (A) fifteen (15%) percent of the total Base Rent payable by Tenant to the New Landlord for such month or (B) the amount necessary to fully amortize Tenant's cost of cure from the date of completion of such cure to the expiration date of the Lease Term (without regard to any unexercised renewal options).