Landlords Remedies for Tenants Default. If an Event of Default by Tenant shall have occurred and is continuing, automatically, and without the requirement of any notice or demand, during the Initial Term, the Base Rent due and payable hereunder shall immediately as of the date of such Event of Default convert to the Fair Market Rent determined in accordance with Section 2.3 and Landlord may, at its option: (a) Terminate this Lease by giving fifteen (15) additional days’ prior notice thereof to Tenant and, upon the expiration of such notice period, this Lease shall terminate with the same force and effect as though the date of such notice were the Expiration Date, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as herein expressly provided; (b) Exercise any other rights and remedies available to Landlord at law or in equity; (c) During the Extension Term (and only during the Extension Term) after terminating this Lease, as Landlord may elect, Landlord may re-enter and repossess the Premises, or any part thereof, and lease the Premises to any other person upon such terms as Landlord shall deem reasonable, for a term within or beyond the Term. Any such reletting prior to termination shall be for the account of Tenant, and Tenant shall remain liable for (a) the excess, if any of (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of such expiration, termination or repossession, over (ii) the net proceeds, if any, of any reletting effected for the account of Tenant, determined by deducting from the gross proceeds of any such reletting all expenses incurred in connection with such reletting of the Premises, as determined by Landlord, including, without limitation, the following: (A) repossession costs; (B) attorneys’ fees and expenses; (C) brokers’ commissions and advertising costs; (D) costs of alterations, improvements, repairs and replacements; and (E) improvement allowances, free rent, and other concessions; and, (b) all other costs and expenses, direct or indirect, incurred as a result of Tenant’s breach of this Lease. If the Premises are sublet by Tenant to others at the time of any default, Landlord may, as Tenant’s agent, collect rents due from any subtenant and apply such rents to the Basic Rent, Additional Rent and other amounts due hereunder without in any way affecting Tenant’s obligations to Landlord. Such agency, being given for security, is hereby declared to be irrevocable; (d) All remedies available to Landlord hereunder as a result of the occurrence of an Event of Default by Tenant shall be cumulative and concurrent, but may only be exercised by Landlord after Tenant has received all required notices from Landlord and all applicable periods have expired without a cure having been effectuated by Tenant. (e) The failure of Landlord to insist in any one or more cases upon the strict performance of any of the terms, covenants, conditions, provisions or agreements of this Lease or to exercise any right, privilege, option or remedy herein contained shall not be construed as a waiver or a relinquishment for the future of any such term, covenant, condition, provision, agreement, right, privilege, option or remedy. A receipt and acceptance by Landlord of Basic Rent or Additional Rent, or the acceptance of performance of anything required by this Lease to be performed, with knowledge of the breach of any term, covenant, condition, provision or agreement of this Lease, shall not be deemed a waiver of such breach, nor shall any such acceptance of Basic Rent or Additional Rent in a lesser amount than is herein provided for (regardless of any endorsement on any check, or any statement in any letter accompanying any payment of rent) operate or be construed either as an accord and satisfaction or in any manner other than as payment on account of the earliest Basic Rent and/or Additional Rent then unpaid by Tenant. No waiver by Landlord of any term, covenant, condition, provision or agreement of this Lease shall be deemed to have been made unless expressed in writing and signed by Landlord. No waiver by Landlord of any breach by Tenant of any obligations, agreements or covenants in this Lease shall be a waiver of any subsequent breach or of any obligation, agreement or covenant, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver of any rights and remedies with respect to such or any subsequent breach.
Appears in 2 contracts
Samples: Ground Lease (Bloom Energy Corp), Ground Lease (Bloom Energy Corp)
Landlords Remedies for Tenants Default. If an any Event of Default by Tenant shall have occurred and is then be continuing, automaticallythen in addition to all rights and remedies provided by law or equity, or provided for elsewhere in this Lease, Landlord shall have all of the rights and without remedies specified in the requirement following paragraphs of any this Section.
(A) Landlord shall have the right, by notice or demandto Tenant, during to accelerate all Rent due hereunder and otherwise payable in installments over the Initial remainder of the Term, ; and the Base Rent amount of accelerated rent shall be due and payable hereunder by Tenant upon Landlord’s demand. Additional Rent which has not been included, in whole or in part, in accelerated rent, shall immediately as be due and payable by Tenant during the remainder of the date of such Event of Default convert to Term, in the Fair Market Rent determined amounts and at the times otherwise provided for in accordance with Section 2.3 and Landlord may, at its option:
(a) Terminate this Lease by giving fifteen (15) additional days’ prior notice thereof to Tenant and, upon the expiration of such notice period, this Lease shall terminate with the same force and effect as though the date of such notice were the Expiration Date, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as herein expressly provided;
(b) Exercise any other rights and remedies available to Landlord at law or in equity;
(c) During the Extension Term (and only during the Extension Term) after terminating this Lease. Notwithstanding the foregoing or the application of any rule or law based on election of remedies or otherwise, if Tenant fails to pay the accelerated rent in full when due, Landlord shall have the right to terminate Tenant’s further right to possession of the Premises or, as Landlord may elect, to terminate this Lease, as below provided. If Tenant shall tender payment of part but not all of the accelerated rent, then Tenant’s failure to make full payment shall be deemed a separate Event of Default hereunder, without any obligation of Landlord may re-enter to give notice of default and repossess without any opportunity of Tenant to cure such default, and, Landlord shall have the Premisesright to refuse to accept same, or any part to accept same and to apply such partial payment, or portions thereof, to the various obligations and lease the Premises to any other person upon such terms as Landlord shall deem reasonable, for a term within or beyond the Term. Any such reletting prior to termination shall be for the account of Tenant, and Tenant shall remain liable for (a) the excess, if any of (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease owing by Tenant hereunder in the absence of such expiration, termination or repossession, over (ii) the net proceeds, if any, of any reletting effected for the account of Tenant, determined by deducting from the gross proceeds of any such reletting all expenses incurred in connection with such reletting of the Premises, order and priority as determined by Landlord, includingin its sole discretion, without limitation, the following: (A) repossession costs; shall determine.
(B) attorneys’ fees and expenses; (C) brokers’ commissions and advertising costs; (D) costs of alterations, improvements, repairs and replacements; and (E) improvement allowances, free rent, and other concessions; and, (b) all other costs and expenses, direct or indirect, incurred as a result of Tenant’s breach of this Lease. If the Premises are sublet by Tenant to others at the At any time of any default, Landlord may, as Tenant’s agent, collect rents due from any subtenant and apply such rents to the Basic Rent, Additional Rent and other amounts due hereunder without in any way affecting Tenant’s obligations to Landlord. Such agency, being given for security, is hereby declared to be irrevocable;
(d) All remedies available to Landlord hereunder as a result of following the occurrence of an Event of Default or the expiration or sooner termination of the Term, Landlord immediately shall have the right, whether or not Landlord elects to terminate this Lease, to recover possession of the Premises by all lawful means. Tenant shall be cumulative and concurrent, but may only be exercised by Landlord after Tenant has received all required notices from Landlord hereby expressly waives any and all applicable periods have expired without a cure having been effectuated rights of redemption granted by Tenantor under any present or future laws in the event of Tenant being evicted or dispossessed of the Premises for any cause, or in the event of Landlord obtaining possession of the Premises, by reason of Tenant committing an Event of Default or otherwise.
(eC) The failure If, at any time following the occurrence of Landlord to insist in any one or more cases upon the strict performance an Event of any of the termsDefault, covenantsLandlord, conditions, provisions or agreements of this Lease or to exercise any right, privilege, option or remedy herein contained shall not be construed as a waiver or a relinquishment for the future of any such term, covenant, condition, provision, agreement, right, privilege, option or remedy. A receipt and acceptance by Landlord of Basic Rent or Additional Rent, or the acceptance of performance of anything required by this Lease to be performed, with knowledge of the breach of any term, covenant, condition, provision or agreement of without terminating this Lease, shall recover or be entitled to recover possession of the Premises, then: (i) Landlord may, but shall not be deemed a waiver of such breachobliged to, nor shall any such acceptance of Basic Rent or Additional Rent in a lesser amount than is herein provided for (regardless of any endorsement on any checkrelet the Premises, or any statement part or parts thereof, and (ii) Tenant shall continue to be obliged to pay the full Rent reserved by this Lease and to observe and perform all its agreements and obligations hereunder. The failure, refusal or inability of Landlord to relet the Premises or any part or parts thereof shall not release or affect Tenant’s liability for such Rent. If Landlord so relets the Premises, then Landlord shall credit against Tenant’s continuing obligation to pay Rent, the net rentals actually received by Landlord for such reletting. Landlord shall in no event be liable in any letter accompanying way whatsoever for failure to relet the Premises, or, in the event that the Premises are relet, for failure to collect the rent under such reletting, and in no event shall Tenant be entitled to receive any excess of such net rents, if any, over the Rent payable by Tenant to Landlord hereunder. No re-entry or reletting of the Premises by Landlord following Tenant’s default, and no payment by Tenant of the Rent thereafter, shall constitute a release of any of Tenant’s liability hereunder (except to the extent of such payment of rentRent) operate or be construed either as shall prejudice Landlord’s claim for and right to collect from Tenant other sums payable by Tenant hereunder, or Landlord’s actual damages with respect to any Event of Default occurring hereunder.
(D) At any time following the occurrence of an accord Event of Default, Landlord may give Tenant notice of Landlord’s intention to terminate this Lease on a date specified in such notice, and satisfaction upon such date, the Term hereof and the estate hereby granted with respect to the Premises shall terminate, without any right of Tenant to redeem same or in any manner other than as payment on account to prevent such forfeiture, and Tenant shall surrender possession of the earliest Basic Premises to Landlord (except to the extent Tenant shall be obliged to remove Alterations pursuant to ARTICLE 6 hereof). Upon such termination, Landlord shall be entitled to recover from Tenant in addition to all accrued rental and other sums due from Tenant as of such termination date, damages in an amount equal to: (i) the amount of Rent and/or Additional Rent then unpaid reserved for the balance of the Term, plus (ii) all costs and expenses incurred by Landlord in doing any and all of the following, to the extent Landlord elects to do so: securing possession of the Premises from Tenant, disposing of any personalty located in the Premises, restoring the Premises to the condition in which Tenant is herein obliged to surrender same to Landlord. Such costs and expenses shall include, without limitation, attorneys’ fees and expenses, brokerage fees and expenses, watchmen’s wages and insurance premiums. No waiver act or proceeding done or undertaken by Landlord with respect to an Event of any term, covenant, condition, provision or agreement Default shall constitute a termination of this Lease shall be deemed to have been made unless expressed in writing and signed by Landlord. No waiver by Landlord of any breach by unless and until Landlord shall give to Tenant of any obligations, agreements or covenants in this Lease shall be a waiver of any subsequent breach or of any obligation, agreement or covenant, nor shall any forbearance by Landlord to seek a remedy the termination notice provided for any breach by Tenant be a waiver of any rights and remedies with respect to such or any subsequent breachabove.
Appears in 2 contracts
Samples: Lease Agreement (Community Heritage Financial, Inc.), Lease Agreement (Community Heritage Financial, Inc.)
Landlords Remedies for Tenants Default. If an Event Upon the occurrence of a Default as defined above, Landlord may, in its sole discretion, elect any one or more of the following remedies:
(1) to cancel and terminate this Lease by written notice to Tenant; or
(2) whether or not Landlord elects to terminate this Lease, to enter upon and repossess the Premises with resort to judicial process by unlawful detainer action, summary proceedings, ejectment, force, or otherwise (provided, however, that if Tenant shall have occurred has abandoned or voluntarily surrendered possession of the Premises, then Landlord may enter upon and is continuing, automatically, and repossess the Premises without the requirement resort to judicial process or notice of any notice or demandkind), during the Initial Term, the Base Rent due and payable hereunder shall immediately as of the date of such Event of Default convert to the Fair Market Rent determined in accordance with Section 2.3 and Landlord may, at its Landlord’s option:, enter the Premises and take and hold possession thereof, and may remove all persons and property from the Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, without Landlord becoming liable for any loss or damage which may be occasioned thereby; or
(a3) Terminate this Lease to cure the Default at any time for the account and at the expense of Tenant, in which event Tenant shall reimburse Landlord upon demand for any reasonable amount expended by giving fifteen (15) additional days’ prior notice thereof to Tenant and, upon the expiration of such notice period, this Lease shall terminate Landlord in connection with the same force cure, including, without limitation, reasonable attorneys’ fees and effect as though the date of such notice were the Expiration Date, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as herein expressly provided;interest; or
(b4) Exercise to pursue any other rights and remedies available to Landlord remedy at law or in equity;
(c) During the Extension Term (equity that may be available to Landlord. Upon and only during the Extension Term) after terminating repossession, whether or not Landlord has elected to terminate this Lease, as Landlord may electmay, Landlord may re-enter and repossess but shall not be obligated to, relet the Premises, or any part thereof, to any one other than the Tenant, for such time and lease upon such terms and uses as Landlord may determine in its sole discretion. Landlord may also make alterations and repairs to the Premises to any other person upon such terms as the extent Landlord shall deem reasonable, for a term within deems reasonably necessary or beyond desirable to relet the TermPremises. Any such reletting prior to termination rent received shall be for the account of applied against Tenant’s monetary obligations hereunder, and Tenant shall remain liable for (a) Landlord will use commercially reasonable efforts to collect such rents. The parties agree that if Landlord sends two demand letters by an attorney in an effort to collect delinquent rents, then it will have used commercially reasonable efforts to collect such rents. In the excess, if event of any of (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of such expiration, termination or repossession, over Tenant shall be liable to Landlord as follows:
(i) for all reasonable attorneys’ fees and expenses incurred by Landlord in connection with exercising any remedy hereunder;
(ii) the net proceeds, if any, of any reletting effected for the account unpaid installments of TenantBase Rent, determined by deducting from additional rent or other unpaid sums that were due prior to such termination or reentry, including without limitation, interest and late payment fees, which sums shall be payable immediately;
(iii) for the gross proceeds installments of any such reletting Base Rent, additional rent, and other sums falling due pursuant to the provisions of this Lease for the period after reentry, including without limitation, late payment charges and interest, which sums shall be payable as they become due hereunder;
(iv) for all reasonable expenses incurred in connection with such reletting of releasing the Premises, including market rate leasing commissions, reasonable attorneys’ fees, and costs of alteration or repairs, which shall be payable by Tenant as determined they are incurred by Landlord; and
(v) while the Premises are subject to any new lease or leases made pursuant to this Section, includingfor the amount by which the monthly installments of rent payable under such new lease or leases is less than the monthly installment for all charges payable pursuant to this Lease, which deficiencies shall be payable monthly. At any time after termination or repossession, whether or not Landlord may have collected any damages pursuant to the foregoing provisions, Landlord shall be entitled to recover from Tenant, as and for liquidated and agreed upon final damages for loss of bargain due to Tenant’s Default, and not as a penalty, and in lieu of the amounts which would thereafter be payable pursuant to the foregoing provisions (but not in diminution of the amounts payable as provided above before termination), a sum equal to the present value of the amount by which the then fair rental value of the Premises is less than the Base Rent, additional rent and other sums or charges which would have been payable by Tenant for the unexpired portion of the term of this Lease, computed utilizing a discount rate equal to the ten (10) year U.S. Treasury Bond rate (or equivalent if discontinued). Tenant shall promptly pay to Landlord on demand the amount of such deficiency and all expenses incident thereto (including without limitation, the following: (A) repossession costs; (B) commissions, reasonable attorneys’ fees and expenses; (C) brokers’ commissions , and advertising costs; (D) costs of alterationsalterations and repairs). If Landlord, improvementsafter any such reentry, repairs and replacements; and (E) improvement allowancesleases or relets the Premises, free rent, and other concessions; and, (b) all other costs and expenses, direct or indirect, incurred as a result then the rent payable under such new lease shall be conclusive evidence of Tenant’s breach the fair rental value of the unexpired portion of the term of this Lease. If the Premises are sublet by Tenant to others at the time of any default, Landlord may, as Tenant’s agent, collect rents due from any subtenant and apply such rents to the Basic Rent, Additional Rent and other amounts due hereunder without in any way affecting Tenant’s obligations to Landlord. Such agency, being given for security, is hereby declared to be irrevocable;
(d) All remedies available to Landlord hereunder as a result of the occurrence of an Event of Default by Tenant shall be cumulative and concurrent, but may only be exercised by Landlord after Tenant has received all required notices from Landlord and all applicable periods have expired without a cure having been effectuated by Tenant.
(e) The failure of Landlord to insist in any one or more cases upon the strict performance of any of the terms, covenants, conditions, provisions or agreements of this Lease or to exercise any right, privilege, option or remedy herein contained shall not be construed as a waiver or a relinquishment for the future of any such term, covenant, condition, provision, agreement, right, privilege, option or remedy. A receipt and acceptance by Landlord of Basic Rent or Additional Rent, or the acceptance of performance of anything required by this Lease to be performed, with knowledge of the breach of any term, covenant, condition, provision or agreement of this Lease, shall not be deemed a waiver of such breach, nor shall any such acceptance of Basic Rent or Additional Rent in a lesser amount than is herein provided for (regardless of any endorsement on any check, or any statement in any letter accompanying any payment of rent) operate or be construed either as an accord and satisfaction or in any manner other than as payment on account of the earliest Basic Rent and/or Additional Rent then unpaid by Tenant. No waiver by Landlord of any term, covenant, condition, provision or agreement of this Lease shall be deemed to have been made unless expressed in writing and signed terminated by Landlord. No waiver by reason of bankruptcy or insolvency of Tenant, Landlord of any breach by Tenant of any obligations, agreements or covenants in this Lease shall be entitled to recover from Tenant or Tenant’s estate, as liquidated damages for loss of bargain and not as a waiver of any subsequent breach or of any obligationpenalty, agreement or covenant, nor shall any forbearance the amount determined by Landlord to seek a remedy for any breach by Tenant be a waiver of any rights and remedies with respect to such or any subsequent breachthe immediately preceding paragraph.
Appears in 1 contract
Landlords Remedies for Tenants Default. If an any Event of Default by Tenant shall have occurred and is continuingshall be continuing beyond those periods of time herein granted to cure the same, automaticallythen Landlord shall have all of the following rights and remedies:
A. Landlord may, and without the requirement of any by notice or demandto Tenant, during the Initial Term, the accelerate all Base Rent due hereunder and otherwise payable in installments over the remainder of the Lease Term, and, at Landlord’s option, Additional Rent, including, but not limited to, unearned brokerage commissions paid by Landlord in connection with this Lease, to the extent that Additional Rent can be determined and calculated to a fixed sum; and the amount of accelerated Rent shall be due and payable hereunder shall immediately to Landlord upon Landlord’s demand reduced by the reasonable rental value of the Premises and adjusted to reflect the time value of money at the Wall Street Journal published “Prime Rate” as of the date of such Event Tenant’s default. Additional Rent which has not been included, in whole or in part, in accelerated Rent shall be due and payable by Tenant during the remainder of Default convert to the Fair Market Rent determined Lease Term, in accordance with Section 2.3 the amounts and at the times otherwise provided for in this Lease.
B. Landlord may, at its Lxxxxxxx’s option:
, with judicial process, enter upon the Premises and remove Tenant and any and all other persons therefrom and take and retain possession thereof and of any and all goods, inventory, equipment, fixtures, and all other personal property of Tenant situated in the Premises without liability for trespass or conversion, and may sell all or any part thereof at public or private sale. Tenant agrees that five (a5) Terminate this Lease by giving fifteen (15) additional days’ prior notice thereof of any public or private sale shall constitute reasonable notice. The proceeds of any such sale shall be applied, first, to the payment of all costs and expenses of conducting the sale or caring for or storing said property, including all attorneys’ fees; second, toward the payment of any indebtedness, including (without limitation) indebtedness for Rent, which may be or may become due from Tenant to Landlord; third, to compensate Landlord for unearned brokerage commissions paid by Landlord in connection with this Lease; and, upon fourth, to pay the expiration of such notice periodTenant, this Lease shall terminate with the same force and effect as though the date of such notice were the Expiration Dateon demand in writing, and any surplus remaining after all rights indebtedness of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as herein expressly provided;
(b) Exercise any other rights and remedies available to Landlord at law or in equity;has been fully paid.
(c) During the Extension Term (and only during the Extension Term) after terminating this Lease, as C. Landlord may elect, Landlord from time to time may re-enter and repossess let the Premises, or any part thereof, for such term or terms and lease the Premises to any other person upon on such terms conditions as Landlord shall deem reasonableLandlord, for a term within or beyond the Term. Any such reletting prior to termination shall be for the account of Tenantin its reasonable discretion, may determine, and Tenant shall remain be liable to Landlord for (a) the excess, if any of (i) the difference between the amount of Rent and Additional Rent payable hereunder and the net proceeds of such re-letting and (ii) unearned brokerage commissions paid by Landlord in connection with this Lease. In computing the amount of such difference there shall be added thereto such reasonable expenses as Landlord may have incurred in connection with such re-letting, including without limitation, attorneys’ fees, brokerage commissions, and expenses for keeping the Premises in good order and for preparing them for reletting, including expenses of remodeling and free rent or other rent incentives provided to the new tenant.
D. Landlord may give Tenant notice of Landlord’s intention to terminate this Lease on a date specified in such notice, on which date this Lease shall terminate. If Landlord shall so elect to terminate this Lease, then Landlord shall be entitled to recover from Tenant, in addition to all Basic Rent, Additional accrued Rent and other sums due from Tenant as of such termination date, damages in an amount equal to: (1) the amount of Rent reserved for the balance of the Lease Term, less the fair rental value of the Premises for the balance of the Lease Term, as adjusted to reflect the time value of money at the Wall Street Journal published “Prime Rate” as of the date of such termination, (2) unearned brokerage commissions paid by Landlord in connection with this Lease, and (3) all costs and expenses reasonably incurred by Landlord in securing possession from Tenant, in restoring the Premises to the condition in which would be Tenant is herein obligated to surrender same to Landlord, in preparing to re-let the Premises, in maintaining and safeguarding the Premises in attempting to re-let the Premises, and in recovering said damages from Tenant, which costs and expenses shall include, without limitation, reasonable attorneys’ fees and expenses, costs of security services, costs of storing or disposing of property left upon the Premises and cleaning and restoration costs. No act or proceeding done or undertaken by Landlord with respect to an Event of Default shall constitute a termination of this Lease by Landlord unless and until Landlord shall give to Tenant the termination notice specified in the first sentence of this Subsection D.
E. If Tenant is in monetary default twice in any six (6) month period, Landlord shall have the right to demand automatic wire transfer of Rent from Tenant’s account. Lxxxxxxx’s pursuit of any one or more of the remedies provided in this Lease shall not constitute an election of remedies excluding the election of another remedy or other remedies, or a forfeiture or waiver of any rent or other amounts payable under this Lease by Tenant in the absence of such expiration, termination or repossession, over (ii) the net proceeds, if any, of any reletting effected for the account of Tenant, determined damages or other sums accruing to Landlord by deducting from the gross proceeds of any such reletting all expenses incurred in connection with such reletting of the Premises, as determined by Landlord, including, without limitation, the following: (A) repossession costs; (B) attorneys’ fees and expenses; (C) brokers’ commissions and advertising costs; (D) costs of alterations, improvements, repairs and replacements; and (E) improvement allowances, free rent, and other concessions; and, (b) all other costs and expenses, direct or indirect, incurred as a result reason of Tenant’s breach violation of any provision of this Lease. If the Premises are sublet No action taken by Tenant or on behalf of Landlord shall be construed to others at the time mean acceptance of any defaulta surrender of this Lease, Landlord may, as Tenant’s agent, collect rents due from any subtenant and apply such rents to the Basic Rent, Additional Rent and other amounts due hereunder without unless otherwise agreed in any way affecting Tenant’s obligations to writing by Landlord. Such agency, being given for security, is hereby declared to be irrevocable;
(d) All remedies available to Landlord hereunder as a result of the occurrence of an Event of Default by Tenant shall be cumulative and concurrent, but may only be exercised by Landlord after Tenant has received all required notices from Landlord and all applicable periods have expired without a cure having been effectuated by Tenant.
(e) The No failure of Landlord either party to pursue or exercise any of said party’s powers, rights or remedies or to insist in upon strict and exact compliance by the other party with any one or more cases upon the strict performance of any of the terms, covenants, conditions, provisions or agreements provision of this Lease Lease, and no custom or to exercise any right, privilege, option or remedy herein contained shall not be construed as a waiver or a relinquishment for practice at variance with the future of any such term, covenant, condition, provision, agreement, right, privilege, option or remedy. A receipt and acceptance by Landlord of Basic Rent or Additional Rent, or the acceptance of performance of anything required by this Lease to be performed, with knowledge of the breach of any term, covenant, condition, provision or agreement terms of this Lease, shall not be deemed constitute a waiver of such breach, nor shall by any such acceptance of Basic Rent or Additional Rent in a lesser amount than is herein provided for (regardless of any endorsement on any check, or any statement in any letter accompanying any payment of rent) operate or be construed either as an accord and satisfaction or in any manner other than as payment on account party of the earliest Basic Rent and/or Additional Rent then unpaid by Tenant. No waiver by Landlord of any term, covenant, condition, provision or agreement right to demand strict and exact compliance with the terms and conditions of this Lease shall be deemed to have been made unless expressed in writing and signed by Landlord. No waiver by Landlord of any breach by Tenant of any obligations, agreements or covenants in this Lease shall be a waiver of any subsequent breach or of any obligation, agreement or covenant, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver of any rights and remedies with respect to such or any subsequent breachLease.
Appears in 1 contract
Samples: Lease Agreement (Xg Sciences Inc)
Landlords Remedies for Tenants Default. If an Event Upon the occurrence of a Default as defined above, Landlord may, in its sole discretion, elect any one or more of the following remedies:
(1) to cancel and terminate this Lease by written notice to Tenant; or
(2) whether or not Landlord elects to terminate this Lease, to enter upon and repossess the Premises with resort to judicial process by unlawful detainer action, summary proceedings, ejectment, force, or otherwise (provided, however, that if Tenant shall have occurred has abandoned or voluntarily surrendered possession of the Premises, then Landlord may enter upon and is continuing, automatically, and repossess the Premises without the requirement resort to judicial process or notice of any notice or demandkind), during the Initial Term, the Base Rent due and payable hereunder shall immediately as of the date of such Event of Default convert to the Fair Market Rent determined in accordance with Section 2.3 and Landlord may, at its Landlord's option:, enter the Premises and take and hold possession thereof, and may remove all persons and property from the Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, without Landlord becoming liable for any loss or damage which may be occasioned thereby, except in the case of Landlord's willful misconduct; or
(a3) Terminate this Lease to cure the Default at any time for the account and at the expense of Tenant, in which event Tenant shall reimburse Landlord upon demand for any amount expended by giving fifteen (15) additional days’ prior notice thereof to Tenant and, upon the expiration of such notice period, this Lease shall terminate Landlord in connection with the same force cure, including, without limitation, reasonable attorneys' fees and effect as though the date of such notice were the Expiration Date, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as herein expressly provided;interest; or
(b4) Exercise to pursue any other rights and remedies available to Landlord remedy at law or in equity;
(c) During the Extension Term (equity that may be available to Landlord. Upon and only during the Extension Term) after terminating repossession, whether or not Landlord has elected to terminate this Lease, as Landlord may electmay, Landlord may re-enter and repossess but shall not be obligated to, relet the Premises, or any part thereof, to any one other than the Tenant, for such time and lease upon such terms and uses as Landlord may determine in its sole discretion. Landlord may also make alterations and repairs to the Premises to the extent Landlord deems reasonably necessary or desirable to relet the Premises. Any rent received shall be applied against Tenant's monetary obligations hereunder, but Landlord shall not be responsible or liable for any other person failure to collect any rent due upon such terms as Landlord shall deem reasonable, for a term within or beyond reletting. In the Term. Any event of any such reletting prior to termination shall be for the account of Tenant, and Tenant shall remain liable for (a) the excess, if any of (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of such expiration, termination or repossession, over Tenant shall be liable to Landlord as follows:
(i) for all reasonable attorneys' fees and expenses incurred by Landlord in connection with exercising any remedy hereunder;
(ii) the net proceeds, if any, of any reletting effected for the account unpaid installments of TenantRent, determined by deducting from the gross proceeds of any additional rent or other unpaid sums that were due prior to such reletting all expenses incurred in connection with such reletting of the Premisestermination or reentry, as determined by Landlord, including, including without limitation, interest and late payment fees, which sums shall be payable immediately;
(iii) for the following: (A) repossession costs; (B) attorneys’ fees and expenses; (C) brokers’ commissions and advertising costs; (D) costs installments of alterationsRent, improvements, repairs and replacements; and (E) improvement allowances, free additional rent, and other concessionssums falling due pursuant to the provisions of this Lease for the period after reentry, including without limitation, late payment charges and interest, which sums shall be payable immediately;
(iv) for all reasonable expenses incurred in releasing the Premises, including leasing commissions, reasonable attorneys' fees, and costs of alteration or repairs, which shall be payable by Tenant as they are incurred by Landlord; and,
(bv) all other costs and expenses, direct or indirect, incurred as a result of Tenant’s breach of this Lease. If while the Premises are sublet by Tenant subject to others at the time of any defaultnew lease or leases made pursuant to this Section, Landlord may, as Tenant’s agent, collect rents due from any subtenant and apply such rents to the Basic Rent, Additional Rent and other amounts due hereunder without in any way affecting Tenant’s obligations to Landlord. Such agency, being given for security, is hereby declared to be irrevocable;
(d) All remedies available to Landlord hereunder as a result of the occurrence of an Event of Default by Tenant shall be cumulative and concurrent, but may only be exercised by Landlord after Tenant has received all required notices from Landlord and all applicable periods have expired without a cure having been effectuated by Tenant.
(e) The failure of Landlord to insist in any one or more cases upon the strict performance of any of the terms, covenants, conditions, provisions or agreements of this Lease or to exercise any right, privilege, option or remedy herein contained shall not be construed as a waiver or a relinquishment for the future amount by which the monthly installments of any rent payable under such term, covenant, condition, provision, agreement, right, privilege, option new lease or remedy. A receipt and acceptance by Landlord of Basic Rent or Additional Rent, or leases is less than the acceptance of performance of anything required by this Lease monthly installment for all charges payable pursuant to be performed, with knowledge of the breach of any term, covenant, condition, provision or agreement of this Lease, shall not be deemed a waiver of such breach, nor shall any such acceptance of Basic Rent or Additional Rent in a lesser amount than is herein provided for (regardless of any endorsement on any check, or any statement in any letter accompanying any payment of rent) operate or be construed either as an accord and satisfaction or in any manner other than as payment on account of the earliest Basic Rent and/or Additional Rent then unpaid by Tenant. No waiver by Landlord of any term, covenant, condition, provision or agreement of this Lease which deficiencies shall be deemed to have been made unless expressed in writing and signed by Landlord. No waiver by Landlord of any breach by Tenant of any obligations, agreements or covenants in this Lease shall be a waiver of any subsequent breach or of any obligation, agreement or covenant, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver of any rights and remedies with respect to such or any subsequent breachpayable monthly.
Appears in 1 contract
Landlords Remedies for Tenants Default. If an Event Upon the occurrence of Default by Tenant any event of default, as stated in section 10.1 above, Landlord shall have occurred and is continuingthe right, automaticallythen or at any time thereafter, and without the requirement in addition to and not in lieu of any notice other remedies, relief or demand, during the Initial Term, the Base Rent due and payable hereunder shall immediately as of the date of such Event of Default convert to the Fair Market Rent determined in accordance with Section 2.3 and Landlord may, at its option:
(a) Terminate this Lease by giving fifteen (15) additional days’ prior notice thereof to Tenant and, upon the expiration of such notice period, this Lease shall terminate with the same force and effect as though the date of such notice were the Expiration Date, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as herein expressly provided;
(b) Exercise any other rights and remedies available to Landlord at law or equity or contained in equity;this Lease to do any of the following:
(c) During A. Landlord by itself or its authorized agents may cure the Extension Term (default and only during charge Tenant for the Extension Term) after terminating costs of such cure, which charge shall be due and payable as additional Base Rent under this Lease, as Lease immediately upon written notice to Tenant.
B. Landlord may electcommence an action for specific performance of the terms of this Lease pertaining to the event of default.
C. Landlord shall have the right to re-enter the Premises to assume and take possession of the whole or any part thereof, including any and all Improvements made by Tenant, and to remove all persons or personal property by direct or summary action, or in a different type of suit or proceeding, by force or otherwise, without being deemed guilty of trespass or other actionable wrong by reason thereof, Tenant or anyone in possession claiming under Tenant shall be deemed guilty of unlawful detainer and subject to such summary or other action as may be provided by law. Additionally, Landlord may re-enter let and repossess rent the Premises as the agent for and in the name of Tenant, on terms and conditions at the sole discretion of Landlord. Proceeds from any such re-letting shall be applied first to the expense of re-letting, collecting, altering and repairing the Premises, including without limitation, any attorneys’ fees or any part thereofreal estate commissions. Such proceeds shall be applied second to the payment of Base Rent, owed under this Lease, as the same come due, and lease toward the Premises to any fulfillment of the other person upon such terms as Landlord shall deem reasonable, for a term within or beyond the Termcovenants and agreements of Tenant herein contained. Any such reletting prior to termination shall be for the account of Tenant, and Tenant shall remain liable for (a) the excess, if any of (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of such expiration, termination or repossession, over (ii) the net proceedsThe balance, if any, of the re-letting proceeds shall be paid to Tenant. Tenant hereby agrees that if Landlord shall recover or take possession of the Premises as aforesaid, and is unable to re-let and rent the same so as to realize a sum equal to the sums hereby due and payable, Tenant shall pay to Landlord any reletting effected loss or difference of Base Rent and any other sums due for the account remainder of the Term. Tenant shall peaceably vacate the Premises upon written notification by Landlord to Tenant of Landlord’s intent to re-enter the Premises and Improvements placed thereon by Tenant.
D. Landlord, irrespective of the date on which its right of re-entry shall have accrued or be exercised, shall have the right to forfeit this Lease and terminate the state of tenancy hereby created. This right to terminate is exercisable by written notice to Tenant, determined by deducting from which written notice may be part of a notice of default previously delivered to Tenant, and, as such, may be conditioned upon Tenant’s failure to cure the gross proceeds default. The termination may be made effective as of any such reletting all expenses incurred in connection with such reletting the event of default, or thereafter, and, if not forfeiture, Landlord shall be entitled to and may take immediate possession of the Premises, as determined any other notice or demand being hereby waived. Such termination does not, however, release Tenant from liability for Base Rent or other sums then overdue or remaining under the Lease but shall operate to accelerate the entire balance of the Base Rent for the Term, which shall become immediately due and payable by Tenant, along with all overdue rentals and charges.
E. In addition to all other rights and remedies of Landlord, including, without limitation, Landlord shall have the followingright to recover from Tenant upon any termination of this Lease resulting from a Tenant default: (Aa) repossession costs; (B) attorneys’ fees and expenses; (C) brokers’ commissions and advertising costs; (D) costs that portion of alterations, improvements, repairs and replacementsany other expenses incurred by Landlord in connection with this Lease that is allocable to the portion of the Term of the Lease following termination; and (Eb) improvement allowances, free rent, the amount by which the present value of the Base Rent and other concessions; and, (b) all other costs and expenses, direct or indirect, incurred as a result charges that would have been payable by Tenant during the remaining Term of Tenant’s breach this Lease in the absence of termination exceeds the present value of the rental value of the Premises during the remaining Term of this Lease. If the Premises are sublet by Tenant to others at the time of any default, Landlord may, as Tenant’s agent, collect rents due from any subtenant and apply such rents to the Basic Rent, Additional Rent and other amounts due hereunder without in any way affecting Tenant’s obligations to Landlord. Such agency, being given for security, is hereby declared to be irrevocable;
(d) All remedies available to Landlord hereunder as a result of the occurrence of an Event of Default by Tenant shall be cumulative and concurrent, but may only be exercised by Landlord after Tenant has received all required notices from Landlord and all applicable periods have expired without a cure having been effectuated by Tenant.
(e) The failure of Landlord to insist in any one or more cases upon the strict performance of any of the terms, covenants, conditions, provisions or agreements of this Lease or to exercise any right, privilege, option or remedy herein contained shall not be construed as a waiver or a relinquishment for the future of any such term, covenant, condition, provision, agreement, right, privilege, option or remedy. A receipt and acceptance by Landlord of Basic Rent or Additional Rent, or the acceptance of performance of anything required by this Lease to be performed, with knowledge of the breach of any term, covenant, condition, provision or agreement of this Lease, shall not be deemed a waiver of such breach, nor shall any such acceptance of Basic Rent or Additional Rent in a lesser amount than is herein provided for (regardless of any endorsement on any check, or any statement in any letter accompanying any payment of rent) operate or be construed either as an accord and satisfaction or in any manner other than as payment on account of the earliest Basic Rent and/or Additional Rent then unpaid by Tenant. No waiver by Landlord of any term, covenant, condition, provision or agreement of this Lease shall be deemed to have been made unless expressed in writing and signed by Landlord. No waiver by Landlord of any breach by Tenant of any obligations, agreements or covenants in this Lease shall be a waiver of any subsequent breach or of any obligation, agreement or covenant, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver of any rights and remedies with respect to such or any subsequent breach.
Appears in 1 contract
Samples: Commercial Lease Agreement
Landlords Remedies for Tenants Default. (a) At any time after a default by Tenant, Landlord may terminate this Lease by written notice to Tenant or by any available judicial process.
(b) If an Event Landlord terminates this Lease after a default by Tenant:
(i) Landlord shall be entitled to recover from Tenant, and Tenant within thirty (30) days of Default by termination shall pay to Landlord, all Base Rent and Additional Rent accrued to the time of such termination;
(ii) Landlord shall be entitled to recover from Tenant, and within thirty (30) days of demand therefore Tenant shall have occurred and is continuingpay to Landlord (A) all expenses incurred by Landlord in regaining possession of the Premises (including legal fees), automatically(B) all costs of preparing the Premises for reletting, and without (C) that percentage of all brokerage fees which that portion of the requirement Lease Term remaining at the time of Tenant's default shall bear to the lease term of the successor tenant;
(iii) Landlord shall have the right to re-enter the Premises by any notice legal process then in force;
(iv) Landlord hereby waives its right of distraint with respect to all of Tenant's personal property (including, but not limited to, computers, computer files, client files, office equipment and artwork, but not including anything that is affixed to or demandmade a part of the Building) that is or was within the Premises, provided however, that Landlord may demand that Tenant remove all such personal property within the Premises that is owned by Tenant, at Tenant's expense; provided that, in the event Tenant fails to remove such property within a reasonable time, Landlord may remove such property at Tenant's expense and dispose of it in the manner Landlord, in its reasonable discretion, determines is appropriate and shall have no liability to Tenant or any other person for doing so;
(v) Landlord may take all steps, including repair or alteration of the Premises, that Landlord, in its sole reasonable discretion, deems necessary or advisable, to prepare the Premises for reletting;
(vi) Landlord may relet all or any part of the Premises for such term, at such rental, and upon such terms and conditions as Landlord, in its sole discretion, deems advisable;
(vii) Tenant shall pay to Landlord, as liquidated damages, for each month during the Initial Termbalance of the Lease Term (which would remain but for termination of the Lease by Landlord), on the first day of each such month, (A) an amount equal to all Base Rent and Additional Rent due under the Lease for each such month, in the event Landlord is unable to relet the Premises on reasonable terms, or, (B) in the event Landlord is able to relet the Premises on reasonable terms, an amount equal to any deficiency between (1) all Base Rent and payable hereunder Additional Rent due under the Lease for each such month, and (2) the net Base Rent and Additional Rent for each such month collected upon reletting; and
(viii) If Landlord terminates this Lease after a default by Tenant, then, in addition to the remedies described in Paragraph 11(b)(i)-(vi), and as an alternative to the continued application of the remedy described in Paragraph 11(b)(vii), at any time after termination, at Landlord's election by written notice to Tenant, Landlord shall immediately be entitled to recover from Tenant, and Tenant shall pay to Landlord, an amount equal to the value at the time of Landlord's election of the excess, if any, of (A) all Base Rent and Additional Rent due under this Lease for the remainder of the Lease Term (which would remain but for termination of the Lease by Landlord) over (B) the reasonable rental value of the Premises for the remainder of the Lease Term (which would remain but for termination of the Lease by Landlord) which value shall not include any amount attributable to (y) market-rate tenant concessions including but not limited to tenant improvement allowances or rent abatement or (z) market-rate brokerage commissions, (C) which excess amount shall be discounted to present value by application of the interest rate applicable at the time of Landlord's election to 10-year United States Treasury obligations maturing on that date that is the midpoint of the remainder of the Lease Term (but for Landlord's termination of the Lease) as of the date of such Event of Default convert to the Fair Market Rent determined in accordance with Section 2.3 and Landlord may, at its option:
(a) Terminate this Lease by giving fifteen (15) additional days’ prior notice thereof to Tenant and, upon the expiration of such notice period, this Lease shall terminate with the same force and effect as though the date of such notice were the Expiration Date, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as herein expressly provided;
(b) Exercise any other rights and remedies available to Landlord at law or in equity;Landlord's election.
(c) During the Extension Term (and only during the Extension Term) If Landlord does not elect to terminate this Lease after terminating this Lease, as Landlord may electany default by Tenant, Landlord may re-enter and repossess the Premises, or any part thereof, and lease the Premises to any other person upon such terms as Landlord shall deem reasonable, for a term within or beyond the Term. Any such reletting prior to termination shall be for the account of entitled to recover from Tenant, and Tenant shall remain be obligated to pay to Landlord, immediately upon Landlord's written demand therefor, all damages, costs and expenses (including reasonable attorneys fees) sustained or incurred by Landlord that arise or result from Tenant's default, and Tenant shall continue to be liable for (a) the excess, if any of (i) all Basic Rent, Base Rent and Additional Rent due hereunder, and for the performance of all other sums which would be payable under obligations imposed by this Lease. Landlord shall use reasonable efforts to mitigate its damages. Landlord's election not to terminate the Lease upon any default by Tenant shall not impair Landlord's right to terminate the Lease later for that default if Tenant does not make full payment in accordance with this Paragraph 11(c), or upon any other default by Tenant.
(d) If Tenant abandons the absence of such expirationPremises (ceases to occupy the Premises and fails to pay rent when due), termination Landlord shall have the right to re-enter the Premises without judicial process, to change the locks to all entrances to the Premises, and to take all steps, including repair or repossession, over (ii) the net proceeds, if any, of any reletting effected for the account of Tenant, determined by deducting from the gross proceeds of any such reletting all expenses incurred in connection with such reletting alteration of the Premises, as determined by that Landlord, includingin its sole reasonable discretion, without limitationdeems advisable or necessary to prepare the Premises for reletting, and to relet the following: (A) repossession costs; (B) attorneys’ fees Premises at such rental and expenses; (C) brokers’ commissions upon such terms and advertising costs; (D) costs of alterationsconditions as Landlord, improvementsin its sole reasonable discretion, repairs and replacementsdeems advisable; and (E) improvement allowancessuch re-entry, free rentchange of locks, repair, alteration and/or reletting shall not terminate this Lease. In the event of abandonment of the Premises by Tenant, Tenant shall continue to be liable for all Base Rent and Additional Rent due under the Lease, in addition to all reasonable costs incurred in regaining possession of the Premises and preparing the Premises for reletting, including all reasonable brokers, fees, which shall be calculated solely with respect to that portion of the Lease Term remaining at the time of Tenant's abandonment, and other concessions; andall reasonable legal fees, (b) all other costs and expenses, direct or indirect, incurred less any amounts realized as a result of Tenant’s breach of this Lease. If the Premises are sublet by Tenant to others at the time of any default, Landlord may, as Tenant’s agent, collect rents due from any subtenant and apply such rents to the Basic Rent, Additional Rent and other amounts due hereunder without in any way affecting Tenant’s obligations to Landlord. Such agency, being given for security, is hereby declared to be irrevocable;
(d) All remedies available to Landlord hereunder as a result of the occurrence of an Event of Default by Tenant shall be cumulative and concurrent, but may only be exercised by Landlord after Tenant has received all required notices from Landlord and all applicable periods have expired without a cure having been effectuated by Tenantreletting.
(e) The failure of Landlord to insist in any one or more cases upon the strict performance of any of the terms, covenants, conditions, provisions or agreements of this Lease or to exercise any right, privilege, option or remedy herein contained shall not be construed as a waiver or a relinquishment for the future of any such term, covenant, condition, provision, agreement, right, privilege, option or remedy. A receipt and acceptance by Landlord of Basic Rent or Additional Rent, or the acceptance of performance of anything required by this Lease to be performed, with knowledge of the breach of any term, covenant, condition, provision or agreement of this Lease, shall not be deemed a waiver of such breach, nor shall any such acceptance of Basic Rent or Additional Rent in a lesser amount than is herein provided for (regardless of any endorsement on any check, or any statement in any letter accompanying any payment of rent) operate or be construed either as an accord and satisfaction or in any manner other than as payment on account of the earliest Basic Rent and/or Additional Rent then unpaid by Tenant. No waiver by Landlord of any term, covenant, condition, provision or agreement of this Lease shall be deemed to have been made unless expressed in writing and signed by Landlord. No waiver by Landlord of any breach by Tenant of any obligations, agreements or covenants in this Lease shall be a waiver of any subsequent breach or of any obligation, agreement or covenant, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver of any rights and remedies with respect provided to such Landlord herein are cumulative and not exclusive, and are in addition to, not in substitution for, any and all rights Landlord has or any subsequent breachmay have at law or in equity, all of which rights Landlord expressly retains.
(f) Tenant waives all rights of redemption granted by law.
Appears in 1 contract
Landlords Remedies for Tenants Default. If an any Event of Default by Tenant shall have occurred and is then be continuing, automaticallythen in addition to all rights and remedies provided by law or equity, or provided for elsewhere in this Lease, Landlord shall have all of the rights and without remedies specified in the requirement following paragraphs of any this Section.
(A) Landlord shall have the right, by notice or demandto Tenant, during to accelerate all Basic Rent due hereunder and otherwise payable in installments over the Initial remainder of the Term, and, at Landlord's option, Additional Rent to the Base extent that Additional Rent can be determined and calculated to a fixed sum; and the amount of accelerated rent shall be due and payable hereunder by Tenant upon Landlord's demand. Additional Rent which has not been included, in whole or in part, in accelerated rent, shall immediately as be due and payable by Tenant during the remainder of the date of such Event of Default convert to Term, in the Fair Market Rent determined amounts and at the times otherwise provided for in accordance with Section 2.3 and Landlord may, at its option:
(a) Terminate this Lease by giving fifteen (15) additional days’ prior notice thereof to Tenant and, upon the expiration of such notice period, this Lease shall terminate with the same force and effect as though the date of such notice were the Expiration Date, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as herein expressly provided;
(b) Exercise any other rights and remedies available to Landlord at law or in equity;
(c) During the Extension Term (and only during the Extension Term) after terminating this Lease. Notwithstanding the foregoing or the application of any rule or law based on election of remedies or otherwise, if Tenant fails to pay the accelerated rent in full when due, Landlord shall have the right to terminate Tenant's further right to possession of the Premises or, as Landlord may elect, to terminate this Lease, as below provided. If Tenant shall tender payment of part but not all of the accelerated rent, then Tenant's failure to make full payment shall be deemed a separate Event of Default hereunder, without any obligation of Landlord may re-enter to give notice of default and repossess without any opportunity of Tenant to cure such default, and, Landlord shall have the Premisesright to refuse to accept same, or any part to accept same and to apply such partial payment, or portions thereof, to the various obligations and lease the Premises to any other person upon such terms as Landlord shall deem reasonable, for a term within or beyond the Term. Any such reletting prior to termination shall be for the account of Tenant, and Tenant shall remain liable for (a) the excess, if any of (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease owing by Tenant hereunder in the absence of such expiration, termination or repossession, over (ii) the net proceeds, if any, of any reletting effected for the account of Tenant, determined by deducting from the gross proceeds of any such reletting all expenses incurred in connection with such reletting of the Premises, order and priority as determined by Landlord, includingin its sole discretion, without limitation, the following: (A) repossession costs; shall determine.
(B) attorneys’ fees and expenses; (C) brokers’ commissions and advertising costs; (D) costs of alterations, improvements, repairs and replacements; and (E) improvement allowances, free rent, and other concessions; and, (b) all other costs and expenses, direct or indirect, incurred as a result of Tenant’s breach of this Lease. If the Premises are sublet by Tenant to others at the At any time of any default, Landlord may, as Tenant’s agent, collect rents due from any subtenant and apply such rents to the Basic Rent, Additional Rent and other amounts due hereunder without in any way affecting Tenant’s obligations to Landlord. Such agency, being given for security, is hereby declared to be irrevocable;
(d) All remedies available to Landlord hereunder as a result of following the occurrence of an Event of Default or the expiration or sooner termination of the Term, Landlord immediately shall have the right, whether or not Landlord elects to terminate this Lease, to recover possession of the Premises by all lawful means. 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 of the Premises for any cause, or in the event of Landlord obtaining possession of the Premises, by reason of Tenant committing an Event of Default or otherwise.
(C) If, at any time following the occurrence of an Event of Default, Landlord, without terminating this Lease, shall recover or be entitled to recover possession of the Premises, then:
(i) Landlord may, but shall not be obliged to, relet the Premises, or any part or parts thereof, and/or, at Landlord's election, demolish or renovate the Improvements and relet the remaining Premises, or any part or parts thereof, on such terms as Landlord may deem desirable, and (ii) Tenant shall continue to be obliged to pay the full Rent reserved by this Lease and to observe and perform all its agreements and obligations hereunder. The failure or inability of Landlord to relet the Premises or any part or parts thereof shall not release or affect Tenant's liability for such Rent. If Landlord so relets the Premises, then Landlord shall credit against Tenant's continuing obligation to pay Rent, the net rentals actually received by Landlord for such reletting, after first deducting expenses as Landlord may incur in connection with such reletting, including, without limitation, counsel fees and expenses, brokerage fees and commissions, advertising expenses and of demolishing or renovating the Improvements (if, and to the extent, Landlord elects to do so and only if such actions reduce Tenant's total liabilities under this Lease) and of preparing the Premises for reletting. Landlord, in putting the Premises, or any part or parts thereof as Landlord may elect, in good order, or in preparing the same for rerental, may, at Landlord's option, make such alterations, repairs, replacements, and decorations therein as Landlord, in Landlord's sole judgment, considers advisable, and the making of such alterations, repairs, replacements, and/or decorations shall not operate or be construed to release Tenant from any liability hereunder. Landlord shall in no event be liable in any way whatsoever for failure to relet the Premises, or, in the event that the Premises are relet, for failure to collect the rent under such reletting, and in no event shall Tenant be entitled to receive any excess of such net rents, if any, over the Rent payable by Tenant to Landlord hereunder. No re-entry or reletting of the Premises by Landlord following Tenant's default, and no payment by Tenant of the Rent thereafter, shall constitute a release of any of Tenant's liability hereunder (except to the extent of such payment of Rent) or shall prejudice Landlord's claim for and right to collect from Tenant other sums payable by Tenant hereunder, or Landlord's actual damages with respect to any Event of Default occurring hereunder.
(D) At any time following the occurrence of an Event of Default, Landlord may give Tenant notice of Landlord's intention to terminate this Lease on a date specified in such notice, and upon such date, the Term hereof and the estate hereby granted with respect to the Premises shall terminate, without any right of Tenant to redeem same or to prevent such forfeiture, and Tenant shall surrender possession of the Premises to Landlord (except to the extent Tenant shall be cumulative obliged to remove Alterations pursuant to Article VI hereof). Upon such termination, Landlord shall be entitled to recover from Tenant in addition to all accrued rental and concurrentother sums due from Tenant as of such termination date, but may only be exercised damages in an amount equal to: (i) the amount of Rent reserved for the balance of the Term, plus (ii) all costs and expenses incurred by Landlord after Tenant has received all required notices from Landlord in doing any and all applicable periods have expired of the following, to the extent Landlord elects to do so: securing possession of the Premises from Tenant, disposing of any Personalty located in the Premises, restoring the Premises to the condition in which Tenant is herein obliged to surrender same to Landlord, preparing and attempting to relet the Premises, maintaining and safeguarding the Premises, demolishing the Premises, renovating the Premises, and recovering said damages from Tenant. Such costs and expenses shall include, without limitation, attorneys' fees and expenses, brokerage fees and expenses, watchmen's wages and insurance premiums. No act or proceeding done or undertaken by Landlord with respect to an Event of Default shall constitute a cure having been effectuated termination of this Lease by TenantLandlord unless and until Landlord shall give to Tenant the termination notice provided for above.
(eE) The failure of Landlord If proceedings shall be commenced to insist in any one or more cases upon the strict performance of any recover possession of the terms, covenants, conditions, provisions Premises and Improvements either at the end of the Term or agreements upon sooner termination of this Lease or of Tenant's right to exercise possess the Premises, or for nonpayment of Rent or for any rightother reason, privilegeTenant agrees that, option any custom or remedy statute to the contrary notwithstanding, the notice and cure rights expressly set forth herein contained shall not be construed as a waiver sufficient in either or a relinquishment for the future of any such term, covenant, condition, provision, agreement, right, privilege, option or remedy. A receipt and acceptance by Landlord of Basic Rent or Additional Rent, or the acceptance of performance of anything required by this Lease to be performed, with knowledge of the breach of any term, covenant, condition, provision or agreement of this Lease, shall not be deemed a waiver of such breach, nor shall any such acceptance of Basic Rent or Additional Rent in a lesser amount than is herein provided for (regardless of any endorsement on any check, or any statement in any letter accompanying any payment of rent) operate or be construed either as an accord and satisfaction or in any manner other than as payment on account of the earliest Basic Rent and/or Additional Rent then unpaid by Tenant. No waiver by Landlord of any term, covenant, condition, provision or agreement of this Lease shall be deemed to have been made unless expressed in writing and signed by Landlord. No waiver by Landlord of any breach by Tenant of any obligations, agreements or covenants in this Lease shall be a waiver of any subsequent breach or of any obligation, agreement or covenant, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver of any rights and remedies with respect to such or any subsequent breachcase.
Appears in 1 contract
Landlords Remedies for Tenants Default. If an any Event of Default by Tenant shall have occurred and is then be continuing, automaticallythen in addition to all rights and remedies provided by law or equity, or provided for elsewhere in this Lease, Landlord shall have all of the rights and without remedies specified in the requirement following paragraphs of any this Section.
(i) Landlord shall have the right, by notice or demandto Tenant, during to accelerate all Basic Rent due hereunder and otherwise payable in installments over the Initial remainder of the Term, and, at Landlord’s option, Additional Rent to the Base extent that Additional Rent can be determined and calculated to a fixed sum; and the amount of accelerated rent shall be due and payable hereunder by Tenant upon Landlord’s demand. Additional Rent which has not been included, in whole or in part, in accelerated rent, shall immediately as be due and payable by Tenant during the remainder of the date of such Event of Default convert to Term, in the Fair Market Rent determined amounts and at the times otherwise provided for in accordance with Section 2.3 and Landlord may, at its option:
(a) Terminate this Lease by giving fifteen (15) additional days’ prior notice thereof to Tenant and, upon the expiration of such notice period, this Lease shall terminate with the same force and effect as though the date of such notice were the Expiration Date, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as herein expressly provided;
(b) Exercise any other rights and remedies available to Landlord at law or in equity;
(c) During the Extension Term (and only during the Extension Term) after terminating this Lease. Notwithstanding the foregoing or the application of any rule or law based on election of remedies or otherwise, if Tenant fails to pay the accelerated rent in full when due, Landlord shall have the right to terminate Tenant’s further right to possession of the Premises or, as Landlord may elect, to terminate this Lease, as below provided. If Tenant shall tender payment of part but not all of the accelerated rent, then Tenant’s failure to make full payment shall be deemed a separate Event of Default hereunder, without any obligation of Landlord may re-enter to give notice of default and repossess without any opportunity of Tenant to cure such default, and, Landlord shall have the Premisesright to refuse to accept same, or any part to accept same and to apply such partial payment, or portions thereof, to the various obligations and lease the Premises to any other person upon such terms as Landlord shall deem reasonable, for a term within or beyond the Term. Any such reletting prior to termination shall be for the account of Tenant, and Tenant shall remain liable for (a) the excess, if any of (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease owing by Tenant hereunder in the absence of such expirationorder and priority as Landlord, termination or repossessionin its sole discretion, over shall determine.
(ii) the net proceeds, if any, of At any reletting effected for the account of Tenant, determined by deducting from the gross proceeds of any such reletting all expenses incurred in connection with such reletting of the Premises, as determined by Landlord, including, without limitation, the following: (A) repossession costs; (B) attorneys’ fees and expenses; (C) brokers’ commissions and advertising costs; (D) costs of alterations, improvements, repairs and replacements; and (E) improvement allowances, free rent, and other concessions; and, (b) all other costs and expenses, direct or indirect, incurred as a result of Tenant’s breach of this Lease. If the Premises are sublet by Tenant to others at the time of any default, Landlord may, as Tenant’s agent, collect rents due from any subtenant and apply such rents to the Basic Rent, Additional Rent and other amounts due hereunder without in any way affecting Tenant’s obligations to Landlord. Such agency, being given for security, is hereby declared to be irrevocable;
(d) All remedies available to Landlord hereunder as a result of following the occurrence of an Event of Default or the expiration or sooner termination of the Term, Landlord immediately shall have the right, whether or not Landlord elects to terminate this Lease, to recover possession of the Premises by all lawful means. 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 of the Premises for any cause, or in the event of Landlord obtaining possession of the Premises, by reason of Tenant committing an Event of Default or otherwise.
(iii) If, at any time following the occurrence of an Event of Default, Landlord, without terminating this Lease, shall recover or be entitled to recover possession of the Premises, then: Landlord may, but shall not be obliged to, relet the Premises, or any part or parts thereof, and/or, at Landlord’s election, renovate the Improvements and relet the remaining Premises, or any part or parts thereof, on such terms as Landlord may deem desirable, and Tenant shall continue to be obliged to pay the full Rent reserved by this Lease and to observe and perform all its agreements and obligations hereunder. The failure, refusal or inability of Landlord to relet the Premises or any part or parts thereof shall not release or affect Tenant’s liability for such Rent. If Landlord so relets the Premises, then Landlord shall credit against Tenant’s continuing obligation to pay Rent, the net rentals actually received by Landlord for such reletting, after first deducting expenses as Landlord may incur in connection with such reletting, including, without limitation, counsel fees and expenses, brokerage fees and commissions, advertising expenses and all costs and expenses of possessing and maintaining the Premises, renovating the Improvements (as is reasonable) (if, and to the extent, Landlord elects to do so) and of preparing the Premises for reletting. Landlord, in putting the Premises, or any part or parts thereof as Landlord may elect, in good order, or in preparing the same for re-rental, may, at Landlord’s option, make such alterations, repairs, replacements, and decorations therein as Landlord, in Landlord’s sole judgment, considers advisable, and the making of such alterations, repairs, replacements, and/or decorations shall not operate or be construed to release Tenant from any liability hereunder. Landlord shall in no event be liable in any way whatsoever for failure to relet the Premises, or, in the event that the Premises are relet, for failure to collect the rent under such reletting, and in no event shall Tenant be entitled to receive any excess of such net rents, if any, over the Rent payable by Tenant to Landlord hereunder. No re-entry or reletting of the Premises by Landlord following Tenant’s default, and no payment by Tenant of the Rent thereafter, shall constitute a release of any of Tenant’s liability hereunder (except to the extent of such payment of Rent) or shall prejudice Landlord’s claim for and right to collect from Tenant other sums payable by Tenant hereunder, or Landlord’s actual damages with respect to any Event of Default occurring hereunder.
(iv) At any time following the occurrence of an Event of Default, Landlord may give Tenant notice of Landlord’s intention to terminate this Lease on a date specified in such notice, and upon such date, the Term hereof and the estate hereby granted with respect to the Premises shall terminate, without any right of Tenant to redeem same or to prevent such forfeiture, and Tenant shall surrender possession of the Premises to Landlord (except to the extent Tenant shall be cumulative obliged to remove Alterations pursuant to Article VI hereof). Upon such termination, Landlord shall be entitled to recover from Tenant in addition to all accrued rental and concurrentother sums due from Tenant as of such termination date, but may only be exercised damages in an amount equal to: the amount of Rent reserved for the balance of the Term, plus all costs and expenses incurred by Landlord after Tenant has received all required notices from Landlord in doing any and all applicable periods have expired of the following, to the extent Landlord elects to do so: securing possession of the Premises from Tenant, disposing of any personally located in the Premises, restoring the Premises to the condition in which Tenant is herein obliged to surrender same to Landlord, preparing and attempting to relet the Premises, maintaining and safeguarding the Premises, demolishing the Premises, renovating the Premises, and recovering said damages from Tenant. Such costs and expenses shall include, without limitation, attorneys’ fees and expenses, brokerage fees and expenses, watchmen’s wages and insurance premiums. No act or proceeding done or undertaken by Landlord with respect to an Event of Default shall constitute a cure having been effectuated termination of this Lease by Tenant.Landlord unless and until Landlord shall give to Tenant the termination notice provided for above.
(ev) The failure of Landlord If proceedings shall be commenced to insist in any one or more cases upon the strict performance of any recover possession of the terms, covenants, conditions, provisions Premises and Improvements either at the end of the Term or agreements upon sooner termination of this Lease or of Tenant’s right to exercise possess the Premises, or for nonpayment of Rent or for any rightother reason, privilegeTenant specifically waives the right to the three months’ notice to quit and the 15 or 30 days’ notice to quit required by the Act of April 6, option 1951, P.L. 69, as amended, and agrees that the notice and cure rights expressly set forth herein shall be sufficient in either or remedy herein contained shall not be construed as a waiver or a relinquishment for the future of any such termcase.
(vi) Notwithstanding anything to the contrary contained in this Lease, covenantLandlord and Tenant acknowledge that Tenant’s liability upon a default is subject to the limitations provided in 12 U.S.C. Section 1821(e)(4). Therefore, conditionin the event (a) Tenant, provisionbut not its assignees, agreement, right, privilege, option or remedy. A receipt and acceptance by Landlord of Basic Rent or Additional Rent, or the acceptance of performance of anything required by this Lease shall become subject to be performed, with knowledge a bankruptcy proceeding pursuant to Title 11 of the breach of any term, covenant, condition, provision United States Code or agreement similar proceeding during the term of this Lease, shall not be deemed a waiver or (b) the depository institution operated by Tenant is taken over by any depository institution supervisory authority (hereinafter referred to as the “Authority”) during the term of this Lease, Landlord may, in either such breachevent, nor shall any such acceptance of Basic Rent or Additional Rent in a lesser amount than is herein provided for (regardless terminate this Lease only with the concurrence of any endorsement on any checkreceiver or liquidator appointed by such Authority or pursuant to an order of the Court with jurisdiction over such case or proceeding, or any statement in any letter accompanying any payment of rent) operate or be construed either as an accord and satisfaction or in any manner other than as payment on account upon the expiration of the earliest Basic Rent and/or Additional Rent then unpaid by Tenant. No waiver by Landlord of any term, covenant, condition, provision or agreement stated term of this Lease shall be deemed to have been made unless expressed as provided herein, provided that in writing and signed by Landlord. No waiver by Landlord of any breach by Tenant of any obligations, agreements or covenants in the event this Lease is terminated by the Receiver or Liquidator, the maximum claim of Landlord for rent, damages or indemnity resulting from the termination, rejection, or abandonment of the unexpired Lease shall be a waiver by law in no event exceed all accrued and unpaid rent and additional rent due as of any subsequent breach or the date of any obligation, agreement or covenant, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver of any rights and remedies with respect to such or any subsequent breach.termination.
Appears in 1 contract
Landlords Remedies for Tenants Default. If an any Event of Default by Tenant shall have occurred occurred, then in addition to all rights and is continuingremedies provided by law or equity, automaticallyor provided for elsewhere in this Lease, Landlord shall have all of the rights and without remedies specified in the requirement following paragraphs of any this Section.
(A) Landlord shall have the right, by notice or demandto Tenant, during the Initial Term, the to accelerate all Base Rent due hereunder and otherwise payable in installments over the remainder of the Term and, at Landlord's option, Additional Rent to the extent that Additional Rent can be determined and calculated to a fixed sum; and the amount of accelerated rent shall be due and payable hereunder by Tenant upon Landlord's demand. Additional Rent which has not been included, in whole or in part, in accelerated rent, shall immediately as be due and payable by Tenant during the remainder of the date of such Event of Default convert to Term, in the Fair Market Rent determined amounts and at the times otherwise provided for in accordance with Section 2.3 and Landlord may, at its option:
(a) Terminate this Lease by giving fifteen (15) additional days’ prior notice thereof to Tenant and, upon the expiration of such notice period, this Lease shall terminate with the same force and effect as though the date of such notice were the Expiration Date, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as herein expressly provided;
(b) Exercise any other rights and remedies available to Landlord at law or in equity;
(c) During the Extension Term (and only during the Extension Term) after terminating this Lease. Notwithstanding the foregoing or the application of any rule or law based on election of remedies or otherwise, if Tenant fails to pay the accelerated rent in full when due, Landlord shall have the right to terminate Tenant's further right to possession of the Premises or, as Landlord may elect, to terminate this Lease, as below provided. If Tenant shall tender payment of part but not all of the accelerated rent, then Tenant's failure to make full payment shall be deemed a separate Event of Default hereunder, without any obligation of Landlord may re-enter to give notice of default and repossess without any opportunity of Tenant to cure such default, and, Landlord shall have the Premisesright to refuse to accept same, or any part to accept same and to apply such partial payment, or portions thereof, to the various obligations and lease the Premises to any other person upon such terms as Landlord shall deem reasonable, for a term within or beyond the Term. Any such reletting prior to termination shall be for the account of Tenant, and Tenant shall remain liable for (a) the excess, if any of (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease owing by Tenant hereunder in the absence of such expiration, termination or repossession, over (ii) the net proceeds, if any, of any reletting effected for the account of Tenant, determined by deducting from the gross proceeds of any such reletting all expenses incurred in connection with such reletting of the Premises, order and priority as determined by Landlord, includingin its sole discretion, without limitation, the following: (A) repossession costs; shall determine.
(B) attorneys’ fees and expenses; (C) brokers’ commissions and advertising costs; (D) costs of alterations, improvements, repairs and replacements; and (E) improvement allowances, free rent, and other concessions; and, (b) all other costs and expenses, direct or indirect, incurred as a result of Tenant’s breach of this Lease. If the Premises are sublet by Tenant to others at the time of any default, Landlord may, as Tenant’s agent, collect rents due from any subtenant and apply such rents to the Basic Rent, Additional Rent and other amounts due hereunder without in any way affecting Tenant’s obligations to Landlord. Such agency, being given for security, is hereby declared to be irrevocable;
(d) All remedies available to Landlord hereunder as a result of Immediately upon the occurrence of an Event of Default or the expiration or sooner termination of the Term, Landlord shall have the right to bar entry into and possession of the Premises by Tenant shall be cumulative and concurrent, but may only be exercised by Landlord after Tenant has received all required notices from Landlord any and all applicable periods other persons as Landlord, in its discretion, may elect. In addition to the foregoing, Landlord shall have expired the right, whether or not Landlord elects to terminate this Lease, to recover possession of the Premises, and to that end, Landlord may enter the Premises and take possession, without a cure having been effectuated the necessity of giving Tenant any notice to quit or any other further notice, and with or without (as Landlord may elect) legal process or proceedings, breaking locks and doors if Landlord so chooses, and in so doing, Landlord may remove all or any part of Tenant's property as well as all or any part of the property of others as may be in the Premises. Tenant hereby expressly waives any and all rights of redemption granted by Tenantor under any present or future laws in the event of Tenant being evicted or dispossessed of the Premises for any cause, or in the event of Landlord obtaining possession of the Premises, by reason of Tenant committing an Event of Default or otherwise.
(eC) The failure If, at any time following the occurrence of Landlord to insist in any one or more cases upon the strict performance an Event of any of the termsDefault, covenantsLandlord, conditions, provisions or agreements of this Lease or to exercise any right, privilege, option or remedy herein contained shall not be construed as a waiver or a relinquishment for the future of any such term, covenant, condition, provision, agreement, right, privilege, option or remedy. A receipt and acceptance by Landlord of Basic Rent or Additional Rent, or the acceptance of performance of anything required by this Lease to be performed, with knowledge of the breach of any term, covenant, condition, provision or agreement of without terminating this Lease, shall recover or be entitled to recover possession of the Premises, then:
(i) Landlord may, but shall not be deemed a waiver of such breachobliged to, nor shall any such acceptance of Basic Rent or Additional Rent in a lesser amount than is herein provided for (regardless of any endorsement on any checkrelet the Premises, or any statement in part or parts thereof, and/or, at Landlord's election, demolish or renovate the Improvements and relet the remaining Premises, or any letter accompanying any payment of rentpart or parts thereof, on such terms as Landlord may deem desirable, and (ii) operate or Tenant shall continue to be construed either as an accord and satisfaction or in any manner other than as payment on account of obliged to pay the earliest Basic full Rent and/or Additional Rent then unpaid reserved by Tenant. No waiver by Landlord of any term, covenant, condition, provision or agreement of this Lease shall be deemed and to have been made unless expressed in writing observe and signed by Landlordperform all its agreements and obligations hereunder. No waiver by Landlord The failure, refusal or inability of any breach by Tenant of any obligations, agreements or covenants in this Lease shall be a waiver of any subsequent breach or of any obligation, agreement or covenant, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver of any rights and remedies with respect to such relet the Premises or any subsequent breach.part or parts thereof shall not release or affect Tenant's
Appears in 1 contract
Samples: Lease Agreement (Smart Choice Automotive Group Inc)
Landlords Remedies for Tenants Default. If an Event Upon the occurrence of a Default as defined above, Landlord may, in its sole discretion, elect any one or more of the following remedies:
(1) to cancel and terminate this Lease by written notice to Tenant; or
(2) whether or not Landlord elects to terminate this Lease, to enter upon and repossess the Premises with resort to judicial process by unlawful detainer action, summary proceedings, ejectment, force, or otherwise (provided, however, that if Tenant shall have occurred has abandoned or voluntarily surrendered possession of the Premises, then Landlord may enter upon and is continuing, automatically, and repossess the Premises without the requirement resort to judicial process or notice of any notice or demandkind), during the Initial Term, the Base Rent due and payable hereunder shall immediately as of the date of such Event of Default convert to the Fair Market Rent determined in accordance with Section 2.3 and Landlord may, at its Landlord’s option:, enter the Premises and take and hold possession thereof, and may remove all persons and property from the Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, without Landlord becoming liable for any loss or damage which may be occasioned thereby; or
(a3) Terminate this Lease to cure the Default at any time for the account and at the expense of Tenant, in which event Tenant shall reimburse Landlord upon demand for any amount expended by giving fifteen (15) additional days’ prior notice thereof to Tenant and, upon the expiration of such notice period, this Lease shall terminate Landlord in connection with the same force cure, including, without limitation, reasonable attorneys’ fees and effect as though the date of such notice were the Expiration Date, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as herein expressly provided;interest; or
(b4) Exercise to pursue any other rights and remedies available to Landlord remedy at law or in equity;
(c) During the Extension Term (equity that may be available to Landlord. Upon and only during the Extension Term) after terminating repossession, whether or not Landlord has elected to terminate this Lease, as Landlord may electmay, Landlord may re-enter and repossess but shall not be obligated to, relet the Premises, or any part thereof, to any one other than the Tenant, for such time and lease upon such terms and uses as Landlord may determine in its sole discretion. Landlord may also make alterations and repairs to the Premises to the extent Landlord deems reasonably necessary or desirable to relet the Premises. Any rent received shall be applied against Tenant’s monetary obligations hereunder, but Landlord shall not be responsible or liable for any other person failure to collect any rent due upon such terms as Landlord shall deem reasonable, for a term within or beyond reletting. In the Term. Any event of any such reletting prior to termination shall be for the account of Tenant, and Tenant shall remain liable for (a) the excess, if any of (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of such expiration, termination or repossession, over Tenant shall be liable to Landlord as follows:
(i) for all reasonable attorneys’ fees and expenses incurred by Landlord in connection with exercising any remedy hereunder;
(ii) the net proceeds, if any, of any reletting effected for the account unpaid installments of TenantBase Rent, determined by deducting from additional rent or other unpaid sums that were due prior to such termination or reentry, including without limitation, interest and late payment fees, which sums shall be payable immediately;
(iii) for the gross proceeds installments of any such reletting Base Rent, additional rent, and other sums falling due pursuant to the provisions of this Lease for the period after reentry, including without limitation, late payment charges and interest, which sums shall be payable as they become due hereunder;
(iv) for all reasonable expenses incurred in connection with such reletting of releasing the Premises, including leasing commissions, reasonable attorneys’ fees, and costs of alteration or repairs, which shall be payable by Tenant as determined they are incurred by Landlord; and
(v) while the Premises are subject to any new lease or leases made pursuant to this Section, includingfor the amount by which the monthly installments of rent payable under such new lease or leases is less than the monthly installment for all charges payable pursuant to this Lease, which deficiencies shall be payable monthly. At any time after termination or repossession, whether or not Landlord may have collected any damages pursuant to the foregoing provisions, Landlord shall be entitled to recover from Tenant, as and for liquidated and agreed upon final damages for loss of bargain due to Tenant’s Default, and not as a penalty, and in lieu of the amounts which would thereafter be payable pursuant to the foregoing provisions (but not in diminution of the amounts payable as provided above before termination), a sum equal to the present value of the amount by which the then fair rental value of the Premises is less than the Base Rent, additional rent and other sums or charges which would have been payable by Tenant for the unexpired portion of the term of this Lease, computed utilizing a discount rate equal to the ten (10) year U.S. Treasury Bond rate (or equivalent if discontinued). Tenant shall promptly pay to Landlord on demand the amount of such deficiency and all expenses incident thereto (including without limitation, the following: (A) repossession costs; (B) commissions, reasonable attorneys’ fees and expenses; (C) brokers’ commissions , and advertising costs; (D) costs of alterationsalterations and repairs). If Landlord, improvementsafter any such reentry, repairs and replacements; and (E) improvement allowancesleases or relets the Premises, free rent, and other concessions; and, (b) all other costs and expenses, direct or indirect, incurred as a result then the rent payable under such new lease shall be conclusive evidence of Tenant’s breach the fair rental value of the unexpired portion of the term of this Lease. If the Premises are sublet by Tenant to others at the time of any default, Landlord may, as Tenant’s agent, collect rents due from any subtenant and apply such rents to the Basic Rent, Additional Rent and other amounts due hereunder without in any way affecting Tenant’s obligations to Landlord. Such agency, being given for security, is hereby declared to be irrevocable;
(d) All remedies available to Landlord hereunder as a result of the occurrence of an Event of Default by Tenant shall be cumulative and concurrent, but may only be exercised by Landlord after Tenant has received all required notices from Landlord and all applicable periods have expired without a cure having been effectuated by Tenant.
(e) The failure of Landlord to insist in any one or more cases upon the strict performance of any of the terms, covenants, conditions, provisions or agreements of this Lease or to exercise any right, privilege, option or remedy herein contained shall not be construed as a waiver or a relinquishment for the future of any such term, covenant, condition, provision, agreement, right, privilege, option or remedy. A receipt and acceptance by Landlord of Basic Rent or Additional Rent, or the acceptance of performance of anything required by this Lease to be performed, with knowledge of the breach of any term, covenant, condition, provision or agreement of this Lease, shall not be deemed a waiver of such breach, nor shall any such acceptance of Basic Rent or Additional Rent in a lesser amount than is herein provided for (regardless of any endorsement on any check, or any statement in any letter accompanying any payment of rent) operate or be construed either as an accord and satisfaction or in any manner other than as payment on account of the earliest Basic Rent and/or Additional Rent then unpaid by Tenant. No waiver by Landlord of any term, covenant, condition, provision or agreement of this Lease shall be deemed to have been made unless expressed in writing and signed terminated by Landlord. No waiver by reason of bankruptcy or insolvency of Tenant, Landlord of any breach by Tenant of any obligations, agreements or covenants in this Lease shall be entitled to recover from Tenant or Tenant’s estate, as liquidated damages for loss of bargain and not as a waiver of any subsequent breach or of any obligationpenalty, agreement or covenant, nor shall any forbearance the amount determined by Landlord to seek a remedy for any breach by Tenant be a waiver of any rights and remedies with respect to such or any subsequent breachthe immediately preceding paragraph.
Appears in 1 contract
Samples: Lease Agreement (CSAV Holding Corp.)
Landlords Remedies for Tenants Default. If an Event Upon the occurrence of a Default as defined above, Landlord may, in its sole discretion, elect any one or more of the following remedies:
(1) to cancel and terminate this Lease by Tenant shall have occurred written notice to Tenant; or
(2) whether or not Landlord elects to terminate this Lease, to enter upon and is continuing, automatically, and repossess the Premises without the requirement resort to judicial process or notice of any notice kind if Tenant has abandoned or demand, during the Initial Term, the Base Rent due and payable hereunder shall immediately as voluntarily surrendered possession of the date of such Event of Default convert Premises, otherwise with resort to the Fair Market Rent determined in accordance with Section 2.3 judicial process by unlawful detainer action, summary proceedings, ejectment, force or otherwise, and Landlord may, at its Landlord's option:, enter the Premises and take and hold possession thereof, and may remove all persons and property from the Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, without Landlord becoming liable for any loss or damage which may be occasioned thereby; or
(a3) Terminate this Lease to cure the Default at any time for the account and at the expense of Tenant, in which event Tenant shall reimburse Landlord upon demand for any amount expended by giving fifteen (15) additional days’ prior notice thereof to Tenant and, upon the expiration of such notice period, this Lease shall terminate Landlord in connection with the same force cure, including, without limitation, reasonable attorneys' fees and effect as though the date of such notice were the Expiration Date, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as herein expressly provided;interest; or
(b4) Exercise to pursue any other rights and remedies available to Landlord remedy at law or in equity;
(c) During the Extension Term (equity that may be available to Landlord. Upon and only during the Extension Term) after terminating repossession, whether or not Landlord has elected to terminate this Lease, as Landlord may electmay, Landlord may re-enter and repossess but shall not be obligated to, relet the Premises, or any part thereof, to any one other than the Tenant, for such time and lease upon such terms and uses as Landlord may determine in its sole discretion. Landlord may also make alterations and repairs to the Premises to the extent Landlord deems necessary or desirable to relet the Premises. Any rent received shall be applied against Tenant's monetary obligations hereunder, but Landlord shall not be responsible or liable for any other person failure to collect any rent due upon such terms as Landlord shall deem reasonable, for a term within or beyond reletting. In the Term. Any event of any such reletting prior to termination shall be for the account of Tenant, and Tenant shall remain liable for (a) the excess, if any of (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of such expiration, termination or repossession, over Tenant shall be liable to Landlord as follows:
(i) for all reasonable attorneys' fees and expenses incurred by Landlord in connection with exercising any remedy hereunder;
(ii) the net proceeds, if any, of any reletting effected for the account unpaid installments of TenantBase Rent, determined by deducting from additional rent or other unpaid sums that were due prior to such termination or reentry, including without limitation, interest and late payment fees, which sums shall be payable immediately;
(iii) for the gross proceeds installments of any such reletting Base Rent, additional rent, and other sums falling due pursuant to the provisions of this Lease for the period after reentry, including without limitation, late payment charges and interest, which sums shall be payable as they become due hereunder;
(iv) for all expenses incurred in connection with such reletting of releasing the Premises, including leasing commissions, reasonable attorneys' fees, and costs of alteration or repairs, which shall be payable by Tenant as determined they are incurred by Landlord; and
(v) while the Premises are subject to any new lease or leases made pursuant to this Section, includingfor the amount by which the monthly installments of rent payable under such new lease or leases is less than the monthly installment for all charges payable pursuant to this Lease, which deficiencies shall be payable monthly. At any time after termination or repossession, whether or not Landlord may have collected any damages pursuant to the foregoing provisions, Landlord shall be entitled to recover from Tenant, as and for liquidated and agreed upon final damages for loss of bargain due to Tenant's Default, and not as a penalty, and in lieu of the amounts which would thereafter be payable pursuant to the foregoing provisions (but not in diminution of the amounts payable as provided above before termination), the present value of a sum equal to the amount by which the then fair rental value of the Premises is less than the Base Rent, additional rent and other sums or charges which would have been payable by Tenant for the unexpired portion of the term of this Lease. Tenant shall promptly pay to Landlord on demand the amount of such deficiency and all expenses incident thereto (including without limitation, the following: (A) repossession costs; (B) commissions, reasonable attorneys’ ' fees and expenses; (C) brokers’ commissions , and advertising costs; (D) costs of alterationsrepairs). If Landlord, improvementsafter any such reentry, repairs and replacements; and (E) improvement allowancesleases or relets the Premises, free rent, and other concessions; and, (b) all other costs and expenses, direct or indirect, incurred as a result then the rent payable under such new lease shall be conclusive evidence of Tenant’s breach the fair rental value of the unexpired portion of the term of this Lease. If the Premises are sublet by Tenant to others at the time of any default, Landlord may, as Tenant’s agent, collect rents due from any subtenant and apply such rents to the Basic Rent, Additional Rent and other amounts due hereunder without in any way affecting Tenant’s obligations to Landlord. Such agency, being given for security, is hereby declared to be irrevocable;
(d) All remedies available to Landlord hereunder as a result of the occurrence of an Event of Default by Tenant shall be cumulative and concurrent, but may only be exercised by Landlord after Tenant has received all required notices from Landlord and all applicable periods have expired without a cure having been effectuated by Tenant.
(e) The failure of Landlord to insist in any one or more cases upon the strict performance of any of the terms, covenants, conditions, provisions or agreements of this Lease or to exercise any right, privilege, option or remedy herein contained shall not be construed as a waiver or a relinquishment for the future of any such term, covenant, condition, provision, agreement, right, privilege, option or remedy. A receipt and acceptance by Landlord of Basic Rent or Additional Rent, or the acceptance of performance of anything required by this Lease to be performed, with knowledge of the breach of any term, covenant, condition, provision or agreement of this Lease, shall not be deemed a waiver of such breach, nor shall any such acceptance of Basic Rent or Additional Rent in a lesser amount than is herein provided for (regardless of any endorsement on any check, or any statement in any letter accompanying any payment of rent) operate or be construed either as an accord and satisfaction or in any manner other than as payment on account of the earliest Basic Rent and/or Additional Rent then unpaid by Tenant. No waiver by Landlord of any term, covenant, condition, provision or agreement of this Lease shall be deemed to have been made unless expressed in writing and signed terminated by Landlord. No waiver by reason of bankruptcy or insolvency of Tenant, Landlord of any breach by Tenant of any obligations, agreements or covenants in this Lease shall be entitled to recover from Tenant or Tenant's estate, as liquidated damages for loss of bargain and not as a waiver of any subsequent breach or of any obligationpenalty, agreement or covenant, nor shall any forbearance the amount determined by Landlord to seek a remedy for any breach by Tenant be a waiver of any rights and remedies with respect to such or any subsequent breachthe immediately preceding paragraph.
Appears in 1 contract
Samples: Lease Agreement (Quantech LTD /Mn/)
Landlords Remedies for Tenants Default. If an Event Upon the occurrence of Default a default under this Lease, Landlord shall be entitled to seek any remedy allowable by Tenant law or equity, all of which remedies shall have occurred be cumulative and is continuingnone of which, automaticallyunless Landlord expressly so states in writing, shall terminate Tenant's liability to pay all Rent and without other sums due hereunder for the requirement unexpired portion of any notice or demandthe Lease Term. Such remedies shall include, during the Initial Term, the Base Rent but not be limited to:
A. Declaring immediately due and payable hereunder shall the total remaining Base Rent for the Lease Term.
B. Declaring immediately due and payable the total estimated Overhead Rent and Additional Rent consisting of Tenant's proportionate share of future Operating Expenses and Taxes that would become due during the remainder of the Lease Term if the current estimated rate of such rents were to increase for the remainder of the Lease Term at the same annual rate of increase as the average annual increase during the most recent three (3) calendar years or, if shorter, the period from the beginning of the Lease Term through the date of such Event default.
C. Immediately, or at any time thereafter, reentering and resuming possession of Default convert to the Fair Market Rent determined in accordance with Section 2.3 Premises and Landlord may, at its option:
(a) Terminate this Lease removing all persons and property therefrom either by giving fifteen (15) additional days’ prior notice thereof to Tenant and, upon the expiration of such notice period, this Lease shall terminate with the same force and effect as though the date of such notice were the Expiration Date, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as herein expressly provided;
(b) Exercise any other rights and remedies available to Landlord summary dispossession proceedings or by a suitable action or proceeding at law or in equity;
(c) During the Extension Term (and only during the Extension Term) after terminating , or by force or otherwise, with or without court order or writ, without being liable for any damages therefor. No reentry by Landlord shall be deemed an acceptance of a surrender of this Lease, as Landlord may elect, Landlord may re-enter and repossess .
D. Reletting the Premises, whole or any part thereof, and lease of the Premises to any other person for a period equal to, or greater or less than, the remainder of the then remaining Lease Term, at such rental and upon such terms and conditions as Landlord shall deem reasonable, to any tenant or tenants which it may deem suitable and satisfactory and for a term within any use and purpose which it may deem appropriate. In no event shall Landlord be liable in any respect for failure to relet the Premises, or, in the event of such reletting, for failure to collect the Rent or beyond the Termother sums due thereunder. Any such sums received by Landlord on a reletting prior with respect to termination the then-remaining Lease Term shall belong to Landlord and shall, after deducting all costs and expenses of any nature incurred by Landlord, be for the applied to Tenant's account of Tenant, and Tenant shall remain liable for (a) the excess, if any of (i) until all Basic Rent, Additional Rent and other sums which would be payable due under this Lease by Tenant in the absence of such expiration, termination or repossession, over (ii) the net proceeds, if any, of any reletting effected for the account of Tenant, determined by deducting from the gross proceeds of any such reletting all expenses incurred in connection with such reletting of the Premises, as determined have been received by Landlord, including, without limitation, the following: (A) repossession costs; (B) attorneys’ fees at which time any and expenses; (C) brokers’ commissions and advertising costs; (D) costs of alterations, improvements, repairs and replacements; and (E) improvement allowances, free rent, and other concessions; and, (b) all other costs and expenses, direct or indirect, incurred as a result of Tenant’s breach of this Lease. If the Premises are sublet by Tenant to others at the time of any default, Landlord may, as Tenant’s agent, collect rents due from any subtenant and apply such rents to the Basic Rent, Additional Rent and other amounts due hereunder without in any way affecting Tenant’s obligations additional sums shall belong to Landlord. Such agency, being given for security, is hereby declared to be irrevocable;
(d) All remedies available to Landlord hereunder as a result of the occurrence of an Event of Default by Tenant shall be cumulative and concurrent, but may only be exercised by Landlord after Tenant has received all required notices from Landlord and all applicable periods have expired without a cure having been effectuated by Tenant.
(e) The failure of Landlord to insist in any one or more cases upon the strict performance of any of the terms, covenants, conditions, provisions or agreements of this Lease or to exercise any right, privilege, option or remedy herein contained shall not be construed as a waiver or a relinquishment for the future of any such term, covenant, condition, provision, agreement, right, privilege, option or remedy. A receipt and acceptance by Landlord of Basic Rent or Additional Rent, or the acceptance of performance of anything required by this Lease to be performed, with knowledge of the breach of any term, covenant, condition, provision or agreement of this Lease, shall not be deemed a waiver of such breach, nor shall any such acceptance of Basic Rent or Additional Rent in a lesser amount than is herein provided for (regardless of any endorsement on any check, or any statement in any letter accompanying any payment of rent) operate or be construed either as an accord and satisfaction or in any manner other than as payment on account of the earliest Basic Rent and/or Additional Rent then unpaid by Tenant. No waiver by Landlord of any term, covenant, condition, provision or agreement of this Lease shall be deemed to have been made unless expressed in writing and signed by Landlord. No waiver by Landlord of any breach by Tenant of any obligations, agreements or covenants in this Lease shall be a waiver of any subsequent breach or of any obligation, agreement or covenant, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver of any rights and remedies with respect to such or any subsequent breach.
Appears in 1 contract
Samples: Standard Office Lease (Jacksonville Bancorp Inc /Fl/)
Landlords Remedies for Tenants Default. If an any Event of Default by Tenant shall have occurred and is continuingshall be continuing beyond those periods of time herein granted to cure the same, automaticallythen Landlord shall have all of the following rights and remedies:
A. Landlord may, and without the requirement of any by notice or demandto Tenant, during the Initial Term, the accelerate all Base Rent due hereunder and otherwise payable in installments over the remainder of the Lease Term, and, at Landlord’s option, Additional Rent, including, but not limited to, unearned brokerage commissions paid by Landlord in connection with this Lease, to the extent that Additional Rent can be determined and calculated to a fixed sum; and the amount of accelerated Rent shall be due and payable hereunder shall immediately to Landlord upon Landlord’s demand reduced by the reasonable rental value of the Premises and adjusted to reflect the time value of money at the Wall Street Journal published “Prime Rate” as of the date of such Event Tenant’s default. Additional Rent which has not been included, in whole or in part, in accelerated Rent shall be due and payable by Tenant during the remainder of Default convert to the Fair Market Rent determined Lease Term, in accordance with Section 2.3 the amounts and at the times otherwise provided for in this Lease.
B. Landlord may, at its Landlord’s option:
, with judicial process, enter upon the Premises and remove Tenant and any and all other persons therefrom and take and retain possession thereof and of any and all goods, inventory, equipment, fixtures, and all other personal property of Tenant situated in the Premises without liability for trespass or conversion, and may sell all or any part thereof at public or private sale. Tenant agrees that five (a5) Terminate this Lease by giving fifteen (15) additional days’ prior notice thereof of any public or private sale shall constitute reasonable notice. The proceeds of any such sale shall be applied, first, to the payment of all costs and expenses of conducting the sale or caring for or storing said property, including all attorneys’ fees; second, toward the payment of any indebtedness, including (without limitation) indebtedness for Rent, which may be or may become due from Tenant to Landlord; third, to compensate Landlord for unearned brokerage commissions paid by Landlord in connection with this Lease; and, upon fourth, to pay the expiration of such notice periodTenant, this Lease shall terminate with the same force and effect as though the date of such notice were the Expiration Dateon demand in writing, and any surplus remaining after all rights indebtedness of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as herein expressly provided;
(b) Exercise any other rights and remedies available to Landlord at law or in equity;has been fully paid.
(c) During the Extension Term (and only during the Extension Term) after terminating this Lease, as C. Landlord may elect, Landlord from time to time may re-enter and repossess let the Premises, or any part thereof, for such term or terms and lease the Premises to any other person upon on such terms conditions as Landlord shall deem reasonableLandlord, for a term within or beyond the Term. Any such reletting prior to termination shall be for the account of Tenantin its reasonable discretion, may determine, and Tenant shall remain be liable to Landlord for (a) the excess, if any of (i) the difference between the amount of Rent and Additional Rent payable hereunder and the net proceeds of such re-letting and (ii) unearned brokerage commissions paid by Landlord in connection with this Lease. In computing the amount of such difference there shall be added thereto such reasonable expenses as Landlord may have incurred in connection with such re-letting, including without limitation, attorneys’ fees, brokerage commissions, and expenses for keeping the Premises in good order and for preparing them for re-letting, including expenses of remodeling and free rent or other rent incentives provided to the new tenant.
D. Landlord may give Tenant notice of Landlord’s intention to terminate this Lease on a date specified in such notice, on which date this Lease shall terminate. If Landlord shall so elect to terminate this Lease, then Landlord shall be entitled to recover from Tenant, in addition to all Basic Rent, Additional accrued Rent and other sums due from Tenant as of such termination date, damages in an amount equal to: (1) the amount of Rent reserved for the balance of the Lease Term, less the fair rental value of the Premises for the balance of the Lease Term, as adjusted to reflect the time value of money at the Wall Street Journal published “Prime Rate” as of the date of such termination, (2) unearned brokerage commissions paid by Landlord in connection with this Lease, and (3) all costs and expenses reasonably incurred by Landlord in securing possession from Tenant, in restoring the Premises to the condition in which would be Tenant is herein obligated to surrender same to Landlord, in preparing to re-let the Premises, in maintaining and safeguarding the Premises in attempting to re-let the Premises, and in recovering said damages from Tenant, which costs and expenses shall include, without limitation, reasonable attorneys’ fees and expenses, costs of security services, costs of storing or disposing of property left upon the Premises and cleaning and restoration costs. No act or proceeding done or undertaken by Landlord with respect to an Event of Default shall constitute a termination of this Lease by Landlord unless and until Landlord shall give to Tenant the termination notice specified in the first sentence of this Subsection D.
E. If Tenant is in monetary default twice in any six (6) month period, Landlord shall have the right to demand automatic wire transfer of Rent from Tenant’s account. Landlord’s pursuit of any one or more of the remedies provided in this Lease shall not constitute an election of remedies excluding the election of another remedy or other remedies, or a forfeiture or waiver of any rent or other amounts payable under this Lease by Tenant in the absence of such expiration, termination or repossession, over (ii) the net proceeds, if any, of any reletting effected for the account of Tenant, determined damages or other sums accruing to Landlord by deducting from the gross proceeds of any such reletting all expenses incurred in connection with such reletting of the Premises, as determined by Landlord, including, without limitation, the following: (A) repossession costs; (B) attorneys’ fees and expenses; (C) brokers’ commissions and advertising costs; (D) costs of alterations, improvements, repairs and replacements; and (E) improvement allowances, free rent, and other concessions; and, (b) all other costs and expenses, direct or indirect, incurred as a result reason of Tenant’s breach violation of any provision of this Lease. If the Premises are sublet No action taken by Tenant or on behalf of Landlord shall be construed to others at the time mean acceptance of any defaulta surrender of this Lease, Landlord may, as Tenant’s agent, collect rents due from any subtenant and apply such rents to the Basic Rent, Additional Rent and other amounts due hereunder without unless otherwise agreed in any way affecting Tenant’s obligations to writing by Landlord. Such agency, being given for security, is hereby declared to be irrevocable;
(d) All remedies available to Landlord hereunder as a result of the occurrence of an Event of Default by Tenant shall be cumulative and concurrent, but may only be exercised by Landlord after Tenant has received all required notices from Landlord and all applicable periods have expired without a cure having been effectuated by Tenant.
(e) The No failure of Landlord either party to pursue or exercise any of said party’s powers, rights or remedies or to insist in upon strict and exact compliance by the other party with any one or more cases upon the strict performance of any of the terms, covenants, conditions, provisions or agreements provision of this Lease Lease, and no custom or to exercise any right, privilege, option or remedy herein contained shall not be construed as a waiver or a relinquishment for practice at variance with the future of any such term, covenant, condition, provision, agreement, right, privilege, option or remedy. A receipt and acceptance by Landlord of Basic Rent or Additional Rent, or the acceptance of performance of anything required by this Lease to be performed, with knowledge of the breach of any term, covenant, condition, provision or agreement terms of this Lease, shall not be deemed constitute a waiver of such breach, nor shall by any such acceptance of Basic Rent or Additional Rent in a lesser amount than is herein provided for (regardless of any endorsement on any check, or any statement in any letter accompanying any payment of rent) operate or be construed either as an accord and satisfaction or in any manner other than as payment on account party of the earliest Basic Rent and/or Additional Rent then unpaid by Tenant. No waiver by Landlord of any term, covenant, condition, provision or agreement right to demand strict and exact compliance with the terms and conditions of this Lease shall be deemed to have been made unless expressed in writing and signed by Landlord. No waiver by Landlord of any breach by Tenant of any obligations, agreements or covenants in this Lease shall be a waiver of any subsequent breach or of any obligation, agreement or covenant, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver of any rights and remedies with respect to such or any subsequent breachLease.
Appears in 1 contract
Samples: Lease Agreement (Xg Sciences Inc)
Landlords Remedies for Tenants Default. If an Event Upon the occurrence and continuance of a Default as defined above, Landlord may, in its sole discretion, elect any one or more of the following remedies:
(1) to cancel and terminate this Lease by written notice to Tenant; or
(2) whether or not Landlord elects to terminate this Lease, to enter upon and repossess the Premises with resort to judicial process by unlawful detainer action, summary proceedings, ejectment, force, or otherwise (provided, however, that if Tenant shall have occurred has abandoned or voluntarily surrendered possession of the Premises, then Landlord may enter upon and is continuing, automatically, and repossess the Premises without the requirement resort to judicial process or notice of any notice or demandkind), during the Initial Term, the Base Rent due and payable hereunder shall immediately as of the date of such Event of Default convert to the Fair Market Rent determined in accordance with Section 2.3 and Landlord may, at its Landlord’s option:, enter the Premises and take and hold possession thereof, and may remove all persons and property from the Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, without Landlord becoming liable for any loss or damage which may be occasioned thereby; or
(a3) Terminate this Lease to cure the Default at any time for the account and at the expense of Tenant, in which event Tenant shall reimburse Landlord upon demand for any amount expended by giving fifteen (15) additional days’ prior notice thereof to Tenant and, upon the expiration of such notice period, this Lease shall terminate Landlord in connection with the same force cure, including, without limitation, reasonable attorneys’ fees and effect as though the date of such notice were the Expiration Date, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as herein expressly provided;interest; or
(b4) Exercise to pursue any other rights and remedies available to Landlord remedy at law or in equity;
(c) During the Extension Term (equity that may be available to Landlord. Upon and only during the Extension Term) after terminating repossession, whether or not Landlord has elected to terminate this Lease, as Landlord may electmay, Landlord may re-enter and repossess but shall not be obligated to, relet the Premises, or any part thereof, to any one other than the Tenant, for such time and lease upon such terms and uses as Landlord may determine in its sole discretion. Landlord may also make alterations and repairs to the Premises to the extent Landlord deems reasonably necessary or desirable to relet the Premises. Any rent received shall be applied against Tenant’s monetary obligations hereunder, but Landlord shall not be responsible or liable for any other person failure to collect any rent due upon such terms as Landlord shall deem reasonable, for a term within or beyond reletting. In the Term. Any event of any such reletting prior to termination shall be for the account of Tenant, and Tenant shall remain liable for (a) the excess, if any of (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of such expiration, termination or repossession, over Tenant shall be liable to Landlord as follows:
(i) for all reasonable attorneys’ fees and expenses incurred by Landlord in connection with exercising any remedy hereunder;
(ii) the net proceeds, if any, of any reletting effected for the account unpaid installments of Base Rent, additional rent or other unpaid sums that were due prior to such termination or reentry, including without limitation, interest and late payment fees, which sums shall be payable immediately;
(iii) for the installments of Base Rent, additional rent, and other sums falling due pursuant to the provisions of this Lease for the period after reentry, including without limitation, late payment charges and interest, which sums shall be payable as they become due hereunder;
(iv) for any Base Rent or additional rent concession that may have been granted to Tenant, determined by deducting from the gross proceeds of any such reletting as set forth in Section 1.C.
(v) for all reasonable expenses incurred in connection with such reletting of releasing the Premises, including leasing commissions, reasonable attorneys’ fees, and costs of alteration or repairs, which shall be payable by Tenant as determined they are incurred by Landlord; and
(vi) while the Premises are subject to any new lease or leases made pursuant to this Section, includingfor the amount by which the monthly installments of rent payable under such new lease or leases is less than the monthly installment for all charges payable pursuant to this Lease, which deficiencies shall be payable monthly. At any time after termination or repossession, whether or not Landlord may have collected any damages pursuant to the foregoing provisions, Landlord shall be entitled to recover from Tenant, as and for liquidated and agreed upon final damages for loss of bargain due to Tenant’s Default, and not as a penalty, and in lieu of the amounts which would thereafter be payable pursuant to the foregoing provisions (but not in diminution of the amounts payable as provided above before termination), a sum equal to the present value of the amount by which the then fair rental value of the Premises is less than the Base Rent, additional rent and other sums or charges which would have been payable by Tenant for the unexpired portion of the term of this Lease, computed utilizing a discount rate equal to the ten (10) year U.S. Treasury Bond rate (or equivalent if discontinued). Tenant shall promptly pay to Landlord on demand the amount of such deficiency and all expenses incident thereto (including without limitation, the following: (A) repossession costs; (B) commissions, reasonable attorneys’ fees and expenses; (C) brokers’ commissions , and advertising costs; (D) costs of alterationsalterations and repairs). If Landlord, improvementsafter any such reentry, repairs and replacements; and (E) improvement allowancesleases or relets the Premises, free rent, and other concessions; and, (b) all other costs and expenses, direct or indirect, incurred as a result then the rent payable under such new lease shall be conclusive evidence of Tenant’s breach the fair rental value of the unexpired portion of the term of this Lease. If the Premises are sublet by Tenant to others at the time of any default, Landlord may, as Tenant’s agent, collect rents due from any subtenant and apply such rents to the Basic Rent, Additional Rent and other amounts due hereunder without in any way affecting Tenant’s obligations to Landlord. Such agency, being given for security, is hereby declared to be irrevocable;
(d) All remedies available to Landlord hereunder as a result of the occurrence of an Event of Default by Tenant shall be cumulative and concurrent, but may only be exercised by Landlord after Tenant has received all required notices from Landlord and all applicable periods have expired without a cure having been effectuated by Tenant.
(e) The failure of Landlord to insist in any one or more cases upon the strict performance of any of the terms, covenants, conditions, provisions or agreements of this Lease or to exercise any right, privilege, option or remedy herein contained shall not be construed as a waiver or a relinquishment for the future of any such term, covenant, condition, provision, agreement, right, privilege, option or remedy. A receipt and acceptance by Landlord of Basic Rent or Additional Rent, or the acceptance of performance of anything required by this Lease to be performed, with knowledge of the breach of any term, covenant, condition, provision or agreement of this Lease, shall not be deemed a waiver of such breach, nor shall any such acceptance of Basic Rent or Additional Rent in a lesser amount than is herein provided for (regardless of any endorsement on any check, or any statement in any letter accompanying any payment of rent) operate or be construed either as an accord and satisfaction or in any manner other than as payment on account of the earliest Basic Rent and/or Additional Rent then unpaid by Tenant. No waiver by Landlord of any term, covenant, condition, provision or agreement of this Lease shall be deemed to have been made unless expressed in writing and signed terminated by Landlord. No waiver by reason of bankruptcy or insolvency of Tenant, Landlord of any breach by Tenant of any obligations, agreements or covenants in this Lease shall be entitled to recover from Tenant or Tenant’s estate, as liquidated damages for loss of bargain and not as a waiver of any subsequent breach or of any obligationpenalty, agreement or covenant, nor shall any forbearance the amount determined by Landlord to seek a remedy for any breach by Tenant be a waiver of any rights and remedies with respect to such or any subsequent breachthe immediately preceding paragraph.
Appears in 1 contract
Landlords Remedies for Tenants Default. If an Event of Default by Tenant shall have occurred and is continuing, automatically, and without the requirement of any notice or demand, during the Initial Term, the Base Rent due and payable hereunder shall immediately as of the date of such Event of Default convert to the Fair Market Rent determined in accordance with Section 2.3 and Landlord may, at its option:
(a) Terminate Upon a Tenant Default, Landlord may: (i) terminate this Lease by after giving fifteen Tenant at least thirty (1530) additional days’ prior written notice thereof of its intention to Tenant do so and, upon the expiration of such notice period, this Lease shall terminate with the same force and effect as though the date of such notice were the Expiration Date, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as herein expressly provided;
(b) Exercise any other rights and remedies available to Landlord at law or in equity;
(c) During the Extension Term (and only during the Extension Term) after terminating this Lease, as Landlord may elect, Landlord may re-enter and repossess the Premises, or any part thereof, and lease the Premises to any other person upon such terms as Landlord shall deem reasonable, for a term within or beyond the Term. Any such reletting prior to termination shall be for the account of Tenant, and Tenant shall remain liable for (a) then surrender the excess, if any of (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of such expiration, termination Premises to Landlord; or repossession, over (ii) the net proceeds, if any, of any reletting effected for the account of Tenant, determined by deducting from the gross proceeds of any such reletting all expenses incurred in connection with such reletting enter and take possession of the Premises, as determined by Landlord, including, without limitation, the following: (A) repossession costs; (B) attorneys’ fees and expenses; (C) brokers’ commissions and advertising costs; (D) costs of alterations, improvements, repairs and replacements; and (E) improvement allowances, free rentin accordance with any Legal Requirements governing such repossession, and other concessions; andremove Tenant, (b) all other costs and expenses, direct with or indirect, incurred as a result without having terminated this Lease. Landlord’s exercise of any of its remedies or its receipt of Tenant’s breach of this Lease. If the Premises are sublet by Tenant to others at the time of any default, Landlord may, as Tenant’s agent, collect rents due from any subtenant and apply such rents to the Basic Rent, Additional Rent and other amounts due hereunder without in any way affecting Tenant’s obligations to Landlord. Such agency, being given for security, is hereby declared to be irrevocable;
(d) All remedies available to Landlord hereunder as a result of the occurrence of an Event of Default by Tenant shall be cumulative and concurrent, but may only be exercised by Landlord after Tenant has received all required notices from Landlord and all applicable periods have expired without a cure having been effectuated by Tenant.
(e) The failure of Landlord to insist in any one or more cases upon the strict performance of any of the terms, covenants, conditions, provisions or agreements of this Lease or to exercise any right, privilege, option or remedy herein contained keys shall not be construed as a waiver considered an acceptance or a relinquishment for the future of any such term, covenant, condition, provision, agreement, right, privilege, option or remedy. A receipt and acceptance by Landlord of Basic Rent or Additional Rent, or the acceptance of performance of anything required by this Lease to be performed, with knowledge surrender of the breach of any term, covenant, condition, provision or agreement of this Lease, shall not be deemed a waiver of such breach, nor shall any such acceptance of Basic Rent or Additional Rent in a lesser amount than is herein provided for (regardless of any endorsement on any check, or any statement in any letter accompanying any payment of rent) operate or be construed either as an accord and satisfaction or in any manner other than as payment on account of the earliest Basic Rent and/or Additional Rent then unpaid Premises by Tenant. No waiver by Landlord of any term, covenant, condition, provision or agreement of this Lease shall A surrender must be deemed agreed to have been made unless expressed in writing and signed by both parties.
(b) If Landlord terminates this Lease or terminates Tenant’s right to possess the Premises because of a Tenant Default, Landlord may hold Tenant liable for, but subject to the terms of this subsection: (i) Rent and other indebtedness that otherwise would have been payable by Tenant to Landlord prior to the expiration of the Term, less any amount that Landlord receives from reletting the Premises after all of Landlord’s costs and expenses incurred in such reletting have been subtracted; (ii) any reasonable amounts Landlord incurs in reletting the Premises during the remainder of the Term; and (iii) other necessary and reasonable expenses incurred by Landlord in enforcing its remedies, including reasonable attorney's fees. Tenant shall be liable for only those actual damages suffered by Landlord. No waiver Tenant shall pay any such sums due within thirty (30) days of receiving Landlord’s itemized invoice for the amounts. Landlord shall mitigate any damage, for example by Landlord of any breach by Tenant of any obligations, agreements or covenants in this Lease shall be a waiver of any subsequent breach or of any obligation, agreement or covenant, nor shall any forbearance by Landlord making best efforts to seek a remedy for any breach by Tenant be a waiver of any rights and remedies with respect to such or any subsequent breachrelet the Premises on reasonable terms.
Appears in 1 contract
Samples: Lease Agreement (Spartan Motors Inc)
Landlords Remedies for Tenants Default. If an any Event of Default by Tenant shall have occurred and is continuingshall be continuing beyond those periods of time herein granted to cure the same, automaticallythen Landlord shall have all of the following rights and remedies:
A. Landlord may, by notice to Tenant, accelerate all Basic Rent due hereunder and without otherwise payable in installments over the requirement remainder of any notice or demand, during the Initial Lease Term, and, at Landlord's option, Additional Rent to the Base extent that Additional Rent can be determined and calculated to a fixed sum; and the amount of accelerated Rent shall be due and payable hereunder to Landlord upon Landlord's demand. Additional Rent which has not been included, in whole or in part, in accelerated Rent shall immediately as be due and payable by Tenant during the remainder of the date of such Event of Default convert to Lease Term, in the Fair Market Rent determined amounts and at the times otherwise provided for in accordance with Section 2.3 and this Lease.
B. Landlord may, at its Landlord's option:
(a) Terminate this Lease by giving fifteen (15) additional days’ prior notice thereof to Tenant and, with judicial process, enter upon the expiration Premises and remove Tenant and any and all other persons therefrom and take and retain possession thereof and of such notice periodany and all goods, this Lease shall terminate with the same force and effect as though the date of such notice were the Expiration Dateinventory, equipment, fixtures, and all rights other personal property of Tenant hereunder situated in the Premises without liability for trespass or conversion, and may sell all or any part thereof at public or private sale. Tenant agrees that five (5) days' prior notice of any public or private sale shall expire constitute reasonable notice. The proceeds of any such sale shall be applied, first, to the payment of all costs and terminateexpenses of conducting the sale or caring for or storing said property, but including all attorneys' fees; second, toward the payment of any indebtedness, including (without limitation) indebtedness for Rent, which may be or may become due from Tenant shall remain liable as herein expressly provided;
(b) Exercise to Landlord; and third, to pay the Tenant, on demand in writing, any other rights and remedies available surplus remaining after all indebtedness of Tenant to Landlord at law or in equity;has been fully paid.
(c) During the Extension Term (and only during the Extension Term) after terminating this Lease, as C. Landlord may elect, Landlord from time to time may re-enter and repossess let the Premises, or any part thereof, for such term or terms and lease the Premises to any other person upon on such terms conditions as Landlord shall deem reasonableLandlord, for a term within or beyond the Term. Any such reletting prior to termination shall be for the account of Tenantin its sole discretion, may determine, and Tenant shall remain be liable to Landlord for (a) the excessdifference between the amount of Rent and Additional Rent payable hereunder and the net proceeds of such re-letting. In computing the amount of such difference there shall be added thereto such reasonable expenses as Landlord may have incurred in connection with. such re-letting, if any including without limitation reasonable attorneys' fees, brokerage commissions, and expenses for keeping the Premises in good order and for preparing them for re-letting.
D. Landlord may give Tenant notice of (i) Landlord's intention to terminate this Lease on a date specified in such notice, on which date this lease shall terminate. If landlord shall so elect to terminate this Lease, then Landlord shall be entitled to recover from Tenant, in addition to all Basic Rent, Additional accrued Rent and other sums which would be payable under this Lease by due from Tenant in the absence as of such expirationtermination date, termination or repossession, over damages in an amount equal to: (ii1) the net proceeds, if any, amount of any reletting effected Rent reserved for the account of Tenant, determined by deducting from the gross proceeds of any such reletting all expenses incurred in connection with such reletting balance of the PremisesLease Term, as determined by Landlord, including, without limitation, the following: (A) repossession costs; (B) attorneys’ fees and expenses; (C) brokers’ commissions and advertising costs; (D) costs of alterations, improvements, repairs and replacements; and (E) improvement allowances, free rent, and other concessions; and, (b) all other costs and expenses, direct or indirect, incurred as a result of Tenant’s breach of this Lease. If the Premises are sublet by Tenant to others at the time of any default, Landlord may, as Tenant’s agent, collect rents due from any subtenant and apply such rents to the Basic Rent, Additional Rent and other amounts due hereunder without in any way affecting Tenant’s obligations to Landlord. Such agency, being given for security, is hereby declared to be irrevocable;
(d) All remedies available to Landlord hereunder as a result of the occurrence of an Event of Default by Tenant shall be cumulative and concurrent, but may only be exercised by Landlord after Tenant has received all required notices from Landlord and all applicable periods have expired without a cure having been effectuated by Tenant.
(e) The failure of Landlord to insist in any one or more cases upon the strict performance of any of the terms, covenants, conditions, provisions or agreements of this Lease or to exercise any right, privilege, option or remedy herein contained shall not be construed as a waiver or a relinquishment for the future of any such term, covenant, condition, provision, agreement, right, privilege, option or remedy. A receipt and acceptance by Landlord of Basic Rent or Additional Rent, or the acceptance of performance of anything required by this Lease to be performed, with knowledge of the breach of any term, covenant, condition, provision or agreement of this Lease, shall not be deemed a waiver of such breach, nor shall any such acceptance of Basic Rent or Additional Rent in a lesser amount than is herein provided for (regardless of any endorsement on any check, or any statement in any letter accompanying any payment of rent) operate or be construed either as an accord and satisfaction or in any manner other than as payment on account of the earliest Basic Rent and/or Additional Rent then unpaid by Tenant. No waiver by Landlord of any term, covenant, condition, provision or agreement of this Lease shall be deemed to have been made unless expressed in writing and signed by Landlord. No waiver by Landlord of any breach by Tenant of any obligations, agreements or covenants in this Lease shall be a waiver of any subsequent breach or of any obligation, agreement or covenant, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver of any rights and remedies with respect to such or any subsequent breach.less the
Appears in 1 contract
