Landlord’s Remedies Upon Default. Upon the occurrence of an Event of Default by Tenant, then Landlord shall be entitled to the following remedies: (a) Terminate this Lease by giving written notice of termination to Tenant, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damages, re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or (b) Landlord may re-enter and take possession of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Lease.
Appears in 5 contracts
Samples: Lease Agreement (Nationsrent Inc), Lease Agreement (Nationsrent Inc), Lease Agreement (Nationsrent Inc)
Landlord’s Remedies Upon Default. Upon the occurrence of an Event of Default any such default by Tenant, then Landlord shall be entitled have, in addition to any other remedies available to Landlord at law or in equity, the option to pursue any one or more of the following remedies:, each and all of which shall be cumulative and nonexclusive, without any notice or demand whatsoever.
(a) 19.2.1 Terminate this Lease by giving written notice of termination to TenantLease, in which event Tenant shall immediately surrender the Premises to Landlord. If , and if Tenant fails to so surrender the Premisesdo so, then Landlord may, without prejudice to any other remedy which it has may have for possession of the Premises or arrearages in rent or other damagesrent, re-enter upon and take possession of the Premises without trespass and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, in accordance with applicable lawwithout being liable for prosecution or any claim for damages therefor; orand Landlord may recover from Tenant the following:
(bi) Landlord may re-enter and take possession the worth at the time of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account award of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate any unpaid rent which has been earned at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance termination; plus
(ii) the worth at the time of Tenant's surrender award of the Premises unless Landlord so notifies amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant in writing. Notwithstanding anything to proves could have been reasonably avoided; plus
(iii) the contrary set forth herein, in no event shall Landlord have worth at the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in time of award of the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have amount by which the right to xxx Tenant unpaid rent for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term after the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus
(as if iv) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform its obligations under this Lease had or which in the ordinary course of things would be likely to result therefrom, specifically including but not been terminatedlimited to, brokerage commissions and advertising expenses incurred, expenses of remodeling the Premises or any portion thereof for a new tenant, whether for the same or a different use, and any special concessions made to obtain a new tenant; plus
(v) less the fair rental value at Landlord’s election, such other amounts in addition to or in lieu of the Premises for the corresponding period. The accelerated rent shall foregoing as may be discounted to the date payable at an annual interest rate equal to the prime rate as published permitted from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leaseapplicable law.
Appears in 4 contracts
Samples: Lease (Applied Molecular Transport Inc.), Lease (Applied Molecular Transport LLC), Lease (Poseida Therapeutics, Inc.)
Landlord’s Remedies Upon Default. Upon the occurrence of an Event of Default any such default by Tenant, then Landlord shall be entitled have, in addition to any other remedies available to Landlord at law or in equity, the option to pursue any one or more of the following remedies:, each and all of which shall be cumulative and nonexclusive, without any notice or demand whatsoever.
(a) 19.2.1 Terminate this Lease by giving written notice of termination to TenantLease, in which event Tenant shall immediately surrender the Premises to Landlord. If , and if Tenant fails to so surrender the Premisesdo so, then Landlord may, without prejudice to any other remedy which it has may have for possession of the Premises or arrearages in rent or other damagesrent, re-enter upon and take possession of the Premises without trespass and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, in accordance with applicable lawwithout being liable for prosecution or any claim or damages therefor; orand Landlord may recover from Tenant the following:
(bi) Landlord may re-enter and take possession The worth at the time of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account award of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate any unpaid rent which has been earned at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance termination; plus
(ii) The worth at the time of Tenant's surrender award of the Premises unless Landlord so notifies amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant in writing. Notwithstanding anything to proves could have been reasonably avoided; plus
(iii) The worth at the contrary set forth herein, in no event shall Landlord have time of award of the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in amount by which the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant unpaid rent for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term after the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus
(as if iv) Any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform its obligations under this Lease had or which in the ordinary course of things would be likely to result therefrom, specifically including but not been terminatedlimited to, brokerage commissions and advertising expenses incurred, expenses of remodeling the Premises or any portion thereof for a new tenant, whether for the same or a different use, and any special concessions made to obtain a new tenant; and
(v) less the fair rental value At Landlord’s election, such other amounts in addition to or in lieu of the Premises for the corresponding period. The accelerated rent shall foregoing as may be discounted to the date payable at an annual interest rate equal to the prime rate as published permitted from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leaseapplicable law.
Appears in 4 contracts
Samples: Office Lease (Xactly Corp), Office Lease (PDF Solutions Inc), Office Lease (Riverbed Technology, Inc.)
Landlord’s Remedies Upon Default. Upon the occurrence of an Event of Default any such default by Tenant, then Landlord shall be entitled have, in addition to any other remedies available to Landlord at law or in equity, the option to pursue any one or more of the following remedies:, each and all of which shall be cumulative and nonexclusive, without any notice or demand whatsoever.
(a) 19.2.1 Terminate this Lease by giving written notice of termination to TenantLease, in which event Tenant shall immediately surrender the Premises to Landlord. If , and if Tenant fails to so surrender the Premisesdo so, then Landlord may, without prejudice to any other remedy which it has may have for possession of the Premises or arrearages in rent or other damagesrent, re-enter upon and take possession of the Premises without trespass and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, in accordance with applicable lawwithout being liable for prosecution or any claim or damages therefor; orand Landlord may recover from Tenant the following:
(bi) Landlord may re-enter and take possession of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate worth at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease award of any unpaid rent which has been terminated. In addition, no earned at the lime of such reletting is to be considered an acceptance termination; plus
(ii) the worth at the time of Tenant's surrender award of the Premises unless Landlord so notifies amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant in writing. Notwithstanding anything to proves could have been reasonably avoided; plus
(iii) the contrary set forth herein, in no event shall Landlord have worth at the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in time of award ‘of the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have amount by which the right to xxx Tenant unpaid rent for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term after the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus
(as if iv) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform its obligations under this Lease had or which in the ordinary course of things would be likely to result therefrom, specifically including but not been terminatedlimited to, brokerage commissions and advertising expenses incurred, expenses of remodeling the Premises or any portion thereof for a new tenant, whether for the same or a different use, and any special concessions made to obtain a new tenant; plus
(v) less the fair rental value at Landlord’s election, such other amounts in addition to or in lieu of the Premises for the corresponding period. The accelerated rent shall foregoing as may be discounted to the date payable at an annual interest rate equal to the prime rate as published permitted from time to time by applicable law. The term ‘‘rent” as used in this Section 19.2 shall be deemed to be and to mean all sums of every nature required to be paid by Tenant pursuant to the Money terms of this Lease, whether to Landlord or to others. As used in Sections 19.2.1(i) and (ii), above, the “worth at the time of award” shall be computed by allowing interest at the Interest Rate set forth in Section 4.5 above. As used in Section 19.2.1(iii) above, the “worth at the time of award” shall be computed by discounting such amount at the discount rule of the Wall Street Journal, or if same is not published anymore then Federal Reserve Bank of San Francisco at the prime rate published time of award plus one percent (1%).
19.2.2 Landlord shall have the remedy described in California Civil Code Section 1951.4 (lessor may continue lease in effect after lessee’s breach and abandonment and recover rent as it becomes due, if lessee has the right to sublet or assign, subject only to reasonable limitations). Accordingly, if Landlord does not elect to terminate this Lease on account of any default by Citibank Tenant, Landlord may, from time to time, without terminating this Lease, enforce all of its rights and remedies under this Lease, including the right to recover all rent as it becomes due.
19.2.3 Landlord may, but shall not be obligated to, make any such payment or perform or otherwise cure any such obligation, provision, covenant or condition on Tenant’s part to be observed or performed (and may enter the Premises for such purposes). In the event of Tenant’s failure to perform any of its obligations or covenants under this Lease, and such failure to perform poses a material risk of injury or harm to persons or damage to or loss of property, then Landlord shall have the right to cure or otherwise perform such covenant or obligation at any time after such failure to perform by Tenant, whether or not any such notice or cure period set forth in FloridaSection 19.1 above has expired. Upon payment Any such actions undertaken by Landlord pursuant to the foregoing provisions of the accelerated rent discounted this Section 19.2.3 shall not be deemed a waiver of Landlord’s rights and remedies as a result of Tenant’s failure to present value, perform and shall not release Tenant shall be released from any and all further liability of its obligations under this Lease.
Appears in 3 contracts
Samples: Lease (AltheaDx, Inc.), Lease (AltheaDx, Inc.), Lease (AltheaDx, Inc.)
Landlord’s Remedies Upon Default. Upon the occurrence of an Event any such default by Tenant pursuant to Section 19.1 above which remains uncured after expiration of Default by Tenantthe applicable notice and cure period set forth in Section 19.1 above, then Landlord shall be entitled have, in addition to any other remedies available to Landlord at law or in equity, the option to pursue any one or more of the following remedies:, each and all of which shall be cumulative and nonexclusive, without, except as otherwise expressly provided below, any additional notice or demand whatsoever.
19.2.1 Upon five (a5) Terminate days prior notice to Tenant to terminate this Lease by giving written (provided that such additional notice period shall, in any event, be deemed satisfied in the event Landlord has provided Tenant with a notice under California Code of termination Civil Procedure Section 1161 or any similar or successor law), to Tenantterminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord. If , and if Tenant fails to so surrender the Premises, then do so. Landlord may, without prejudice to any other remedy which it has may have for possession of the Premises or arrearages in rent or other damagesrent, re-enter upon and take possession of the Premises without trespass and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, in accordance with applicable law; orwithout being liable for prosecution or any claim or damages therefor, and Landlord may recover from Tenant the following:
(bi) Landlord may re-enter and take possession The worth at the time of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account award of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate any unpaid rent which has been earned at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance termination; plus
(ii) The worth at the time of Tenant's surrender award of the Premises unless Landlord so notifies amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss-that Tenant in writing. Notwithstanding anything to proves could have been reasonably avoided; plus
(iii) The worth at the contrary set forth herein, in no event shall Landlord have time of award of the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in amount by which the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant unpaid rent for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term after the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus
(as if iv) Any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease had or which in the ordinary course of things would be likely to result therefrom, specifically including but not been terminatedlimited to, brokerage commissions and advertising expenses incurred, expenses of remodeling the Premises or any portion thereof for a new tenant, whether for the same or a different use, and any special concessions made to obtain it new tenant; and
(v) less the fair rental value At Landlord's election, such other amounts in addition to or in lieu of the Premises for the corresponding period. The accelerated rent shall foregoing as may be discounted to the date payable at an annual interest rate equal to the prime rate as published permitted from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leaseapplicable law.
Appears in 3 contracts
Samples: Lease Agreement (Bridgepoint Education Inc), Lease Agreement (Bridgepoint Education Inc), Lease Agreement (Bridgepoint Education Inc)
Landlord’s Remedies Upon Default. Upon For the occurrence of an Event of Default by Tenantthe Tenant under this Lease, then the Landlord shall be entitled may, at his option, without notice to the following remediesTenant and without limiting any other right or remedy in law or in equity:
(a) Terminate this treat the Lease by giving written notice as terminated and resume possession of termination to Tenantthe Premises, thereafter using the same exclusively for Landlord's own purposes, in which event case Tenant shall immediately surrender not be liable for any rent accruing thereafter, however, Tenant shall remain liable for and shall pay to Landlord rental accrued prior to Landlord resuming possession together with any damage to the Premises to Landlord. If Tenant fails to so surrender the Premisesor other damages and charges, then Landlord may, without prejudice to any other remedy it has for as provided in this Lease;
(b) retake possession of the Premises or arrearages in rent or other for the account of the Tenant, holding the Tenant liable for damages, re-enter including the difference between the rentals and take other charges stipulated to be paid and the net amount which Landlord recovers from reletting the Premises in which case Landlord may accelerate and declare immediately due and payable the balance of rent and other charges for the remainder of the lease term or Landlord may collect such rent and other charges as and when the same shall become due.
(c) not retake possession of the Premises without trespass Premises, instead holding the Tenant liable for the balance of rent due for the remainder of the lease term together with all other damages and expel or remove Tenant and any other person occupying the Premises or any part thereofcharges provided for in this Lease, in accordance with applicable law; or
which case, Landlord may accelerate and declare immediately due and payable all remaining rent and other charges for the balance of the lease term. In the event Landlord chooses option (b) above, Landlord may re-enter make such additions, alterations or improvements as Landlord in its sole discretion deems reasonable and take may grant concessions and rental incentives to new tenants as Landlord deems reasonable and may pay real estate commissions to relet the Premises the costs of which shall be amortized over the primary term of any new lease in order to determine the net rentals which Landlord recovered from a reletting of the Premises. In the event Landlord chooses option (c) above and Tenant does not pay all accelerated sums within ten (10) days of demand, the Landlord may obtain possession of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received any rental collected to the account of Tenantoutstanding balance or judgment without releasing Tenant from liability therefore. In the event Landlord so re-enters accelerates future rental payments as provided above, the parties agree that the amount of monthly rental, tax and takes possession insurance payments as of the Premises as set forth abovedate of acceleration, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In additionplus any applicable sales tax, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent multiplied by the number of months remaining in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right lease term in order to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then determine the accelerated rent shall be an amount equal due. The parties agree that no reduction to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental present value of the Premises for the corresponding period. The accelerated rent future rental income shall be discounted to made. In exchange, Landlord shall forego the date payable at an annual interest rate equal to the prime rate as published from time to time collection of future increases in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any rental and all further liability under this Leaseother charges.
Appears in 2 contracts
Samples: Sale Agreement (Imaging Diagnostic Systems Inc /Fl/), Lease Agreement (Imaging Diagnostic Systems Inc /Fl/)
Landlord’s Remedies Upon Default. Upon the occurrence of an Event of Default any such default by Tenant, then Landlord shall be entitled have, in addition to any other remedies available to Landlord at law or in equity, the option to pursue any one or more of the following remedies:, each and all of which shall be cumulative and nonexclusive, without any notice or demand whatsoever.
19.2.1 Upon the happening and during the continuance of any one or more of the aforementioned defaults beyond the applicable notice and cure periods (a) Terminate notwithstanding any license of a former breach of covenant or waiver of the benefit hereof or consent in a former instance), Landlord or Landlord’s agents or servants may, without limitation of any other rights and remedies Landlord may have, at law or in equity, as a result of any default of Tenant under this Lease, give to Tenant a notice terminating this Lease by giving written on a date specified in such notice of termination to Tenant(which shall be not less than ten (10) days after the date of the giving such notice of termination), and this Lease and the Term, as well as any and all of the right, title and interest of the Tenant hereunder, shall wholly cease and expire on the date set forth in which event such notice of termination (Tenant hereby waiving any rights of redemption) in the same manner and with the same force and effect as if such date were the date originally specified herein for the Lease Expiration Date, and Tenant shall immediately then quit and surrender the Premises to Landlord. If Tenant fails to so surrender Upon a termination of this Lease, Landlord or Landlord’s agents or servants may, by any suitable action or proceeding at law, immediately or at any time thereafter re-enter the Premises and remove therefrom Tenant, its agents, employees, servants, licensees, and any subtenants and other persons, and all or any of its or their property therefrom, and repossess and enjoy the Premises, then together with all Alterations thereto; but, in any event under this Section 19.2.1, Tenant shall remain liable as hereinafter provided. The words “re-enter” and “re-entry” as used throughout this Article 19 are not restricted to their technical legal meanings. Landlord may, without prejudice shall use commercially reasonable efforts to any other remedy it has for possession of re-let the Premises following any such termination.
19.2.2 If this Lease is terminated or arrearages in rent or other damages, if Landlord shall re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth aboveaforesaid, or in the event of the termination of this Lease, or of re-entry, by or under any proceeding or action or any provision of law by reason of a default hereunder on the part of Tenant beyond the applicable notice and cure periods, Tenant covenants and agrees forthwith to pay and be liable for, on the days originally fixed herein for the payment thereof, amounts equal to the installments of Base Rent, all Additional Rent and other charges reserved as they would, under the terms of this Lease, become due if this Lease had not been terminated or if Landlord agrees to use reasonable efforts to relet had not entered or re-entered, as aforesaid, and whether the Premises be relet or remain vacant, in whole or in part, or for a commercially reasonable rate at period less than the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender remainder of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to Term, or for the contrary set forth hereinwhole thereof, but, in no the event shall Landlord have the right to accelerate Rent (unless Premises be relet by Landlord, Tenant shall be more than ninety (90) days delinquent entitled to a credit in the payment net amount of Rent or such rent and other amounts payablecharges received by Landlord in reletting, after expiration deduction of notice and all cure periods hereunder). In no event shall Landlord have reasonable expenses incurred in reletting the right to xxx Tenant for any consequential, punitive or incidental damages Premises (including, without limitation, remodeling costs, brokerage fees and the like), and in collecting the rent in connection therewith, in the following manner: Amounts received by Landlord after reletting shall first be applied against such Landlord’s reasonable re-letting expenses, until the same are recovered, and until such recovery, Tenant shall pay, as of each day when a payment would fall due under this Lease, the amount which Tenant is obligated to pay under the terms of this Lease (Tenant’s liability prior to any claims such reletting and such recovery shall not in any way be diminished as a result of the fact that such reletting might be for lost profits and/or lost business opportunitya rent higher than the rent provided for in this Lease); when and if such reletting expenses have been completely recovered, the amounts received from reletting by Landlord as have not previously been applied shall be credited against Tenant’s obligations as of each day when a payment would fall due under this Lease, and only the net amount thereof shall be payable by Tenant. If Further, Tenant shall not be entitled to any credit of any kind for any period after the date when the term of this Lease is scheduled to expire according to its terms.
19.2.3 Landlord does may elect, as an alternative, accelerate the Rent payable under this Lease if this Lease is terminated as a result of Tenant’s default beyond the applicable notice and cure periods and have Tenant pay liquidated damages, which election may be made by notice given to Tenant at any time following the effective termination date of this Lease under Section 19.2.1 above, and whether or not Landlord shall have collected any damages as hereinbefore provided in this Article 19, and in lieu of all other such damages beyond the date of such notice. Upon such notice, Tenant shall promptly pay to Landlord, as liquidated damages, in addition to any damages collected or due from Tenant from any period prior to such notice and all expenses which Landlord may have incurred with respect to the collection of such damages, such a sum as at the time of such notice represents the amount of the excess, if any, of (a) the discounted present value, using the Federal Reserve discount rate (or equivalent), of the Base Rent, then Additional Rent and other charges which would have been payable by Tenant under this Lease for the accelerated rent remainder of the Term if the Lease terms had been fully complied with by Tenant, over and above (b) the discounted present value, using the Federal Reserve discount rate (or equivalent), of the Base Rent, Additional Rent and other charges that would be received by Landlord if the Premises were re-leased at the time of such notice for the remainder of the Term at the fair market value (including provisions regarding periodic increases in Base Rent if such are applicable) prevailing at the time of such notice. For the purposes of this Article 19, if Landlord elects to require Tenant to pay liquidated damages in accordance with this Section 19.2.3, the total Rent shall be computed by assuming the Landlord’s Operating Expenses, Tax Expenses and Utilities Costs to be the same as were payable for the twelve (12) calendar months (or if less than twelve (12) calendar months have been elapsed since the date hereof, the partial year) immediately preceding such termination or re-entry. For the avoidance of doubt, Landlord shall not be entitled to double count for any amounts previously paid by Tenant.
19.2.4 Nothing contained in this Lease shall limit or prejudice the right of Landlord to prove for and obtain in proceedings for bankruptcy or insolvency by reason of the termination of this Lease, an amount equal to the Rent payable over maximum allowed by any statute or rule of law in effect at the balance time when, and governing the proceeds in which, the damages are to be proved, whether or not the amount be greater, equal to, or less than the amount of the Lease Term loss or damages referred to above.
19.2.5 In the event of any default beyond the notice and cure periods set forth above, Landlord may, but shall not be obligated to, make any such payment or perform or otherwise cure any such obligation, provision, covenant or condition on Tenant’s part to be observed or performed (as if this Lease had not been terminated) less the fair rental value of and may enter the Premises for such purposes). In the corresponding periodevent of Tenant’s failure to perform any of its obligations or covenants under this Lease, and such failure to perform poses an immediate material risk of injury or harm to persons or damage to or loss of property, then Landlord shall have the right to cure or otherwise perform such covenant or obligation at any time after such failure to perform by Tenant, whether or not any such notice or cure period set forth in Section 19.1 above has expired. The accelerated rent shall be discounted Any such actions undertaken by Landlord pursuant to the date payable at an annual interest rate equal foregoing provisions of this Section 19.2.5 shall not be deemed a waiver of Landlord’s rights and remedies as a result of Tenant’s failure to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is perform and shall not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, release Tenant shall be released from any and all further liability of its obligations under this Lease.
Appears in 2 contracts
Samples: Lease (Dyne Therapeutics, Inc.), Lease (Dyne Therapeutics, Inc.)
Landlord’s Remedies Upon Default. Upon the occurrence of an Event of Default any such default by Tenant, then Landlord shall be entitled have, in addition to any other remedies available to Landlord at law or in equity, the option to pursue any one or more of the following remedies:, each and all of which shall be cumulative and nonexclusive, without any notice or demand whatsoever.
19.2.1 Upon the happening and during the continuance of any one or more of the aforementioned defaults beyond the applicable notice and cure periods (a) Terminate notwithstanding any license of a former breach of covenant or waiver of the benefit hereof or consent in a former instance), Landlord or Landlord’s agents or servants may, without limitation of any other rights and remedies Landlord may have, at law or in equity, as a result of any default of Tenant under this Lease, give to Tenant a notice terminating this Lease by giving written on a date specified in such notice of termination to Tenant(which shall be not less than ten (10) days after the date of the giving such notice of termination), and this Lease and the Term, as well as any and all of the right, title and interest of the Tenant hereunder, shall wholly cease and expire on the date set forth in which event such notice of termination (Tenant hereby waiving any rights of redemption) in the same manner and with the same force and effect as if such date were the date originally specified herein for the Lease Expiration Date, and Tenant shall immediately then quit and surrender the Premises to Landlord. If Tenant fails to so surrender Upon a termination of this Lease, Landlord or Landlord’s agents or servants may, by any suitable action or proceeding at law, immediately or at any time thereafter re-enter the Premises and remove therefrom Tenant, its agents, employees, servants, licensees, and any subtenants and other persons, and all or any of its or their property therefrom, and repossess and enjoy the Premises, then together with all Alterations thereto; but, in any event under this Section 19.2.1, Tenant shall remain liable as hereinafter provided. The words “re-enter” and “re-entry” as used 908728.01/SD 374622.00146/4-30-21/MLT/bp ActiveUS 186012966v.2 throughout this Article 19 are not restricted to their technical legal meanings. Landlord may, without prejudice shall use commercially reasonable efforts to any other remedy it has for possession of re-let the Premises following any such termination.
19.2.2 If this Lease is terminated or arrearages in rent or other damages, if Landlord shall re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth aboveaforesaid, or in the event of the termination of this Lease, or of re-entry, by or under any proceeding or action or any provision of law by reason of a default hereunder on the part of Tenant beyond the applicable notice and cure periods, Tenant covenants and agrees forthwith to pay and be liable for, on the days originally fixed herein for the payment thereof, amounts equal to the installments of Base Rent, all Additional Rent and other charges reserved as they would, under the terms of this Lease, become due if this Lease had not been terminated or if Landlord agrees to use reasonable efforts to relet had not entered or re-entered, as aforesaid, and whether the Premises be relet or remain vacant, in whole or in part, or for a commercially reasonable rate at period less than the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender remainder of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to Term, or for the contrary set forth hereinwhole thereof, but, in no the event shall Landlord have the right to accelerate Rent (unless Premises be relet by Landlord, Tenant shall be more than ninety (90) days delinquent entitled to a credit in the payment net amount of Rent or such rent and other amounts payablecharges received by Landlord in reletting, after expiration deduction of notice and all cure periods hereunder). In no event shall Landlord have reasonable expenses incurred in reletting the right to xxx Tenant for any consequential, punitive or incidental damages Premises (including, without limitation, remodeling costs, brokerage fees and the like), and in collecting the rent in connection therewith, in the following manner: Amounts received by Landlord after reletting shall first be applied against such Landlord’s reasonable re-letting expenses, until the same are recovered, and until such recovery, Tenant shall pay, as of each day when a payment would fall due under this Lease, the amount which Tenant is obligated to pay under the terms of this Lease (Tenant’s liability prior to any claims such reletting and such recovery shall not in any way be diminished as a result of the fact that such reletting might be for lost profits and/or lost business opportunitya rent higher than the rent provided for in this Lease); when and if such reletting expenses have been completely recovered, the amounts received from reletting by Landlord as have not previously been applied shall be credited against Tenant’s obligations as of each day when a payment would fall due under this Lease, and only the net amount thereof shall be payable by Tenant. If Further, Tenant shall not be entitled to any credit of any kind for any period after the date when the term of this Lease is scheduled to expire according to its terms.
19.2.3 Landlord does may elect, as an alternative, accelerate the Rent payable under this Lease if this Lease is terminated as a result of Tenant’s default beyond the applicable notice and cure periods and have Tenant pay liquidated damages, which election may be made by notice given to Tenant at any time following the effective termination date of this Lease under Section 19.2.1 above, and whether or not Landlord shall have collected any damages as hereinbefore provided in this Article 19, and in lieu of all other such damages beyond the date of such notice. Upon such notice, Tenant shall promptly pay to Landlord, as liquidated damages, in addition to any damages collected or due from Tenant from any period prior to such notice and all expenses which Landlord may have incurred with respect to the collection of such damages, such a sum as at the time of such notice represents the amount of the excess, if any, of (a) the discounted present value, using the Federal Reserve discount rate (or equivalent), of the Base Rent, then Additional Rent and other charges which would have been payable by Tenant under this Lease for the accelerated rent remainder of the Term if the Lease terms had been fully complied with by Tenant, over and above (b) the discounted present value, using the Federal Reserve discount rate (or equivalent), of the Base Rent, Additional Rent and other charges that would be received by Landlord if the Premises were re-leased at the time of such notice for the remainder of the Term at the fair market value (including provisions regarding periodic increases in Base Rent if such are applicable) prevailing at the time of such notice. For the purposes of this Article 19, if Landlord elects to require Tenant to pay liquidated damages in accordance with this Section 19.2.3, the total Rent shall be computed by assuming the Landlord’s Operating Expenses, Tax Expenses and Utilities Costs to be the same as were payable for the twelve (12) calendar months (or if less than twelve (12) calendar months have been elapsed since the date hereof, the partial year) immediately preceding such termination or re-entry. For the avoidance of doubt, Landlord shall not be entitled to double count for any amounts previously paid by Tenant.
19.2.4 Nothing contained in this Lease shall limit or prejudice the right of Landlord to prove for and obtain in proceedings for bankruptcy or insolvency by reason of the termination of this Lease, an amount equal to the Rent payable over maximum allowed by any statute or rule of law in effect at the balance time when, and governing the proceeds in which, the damages are to be proved, whether or not the amount be greater, equal to, or less than the amount of the Lease Term loss or damages referred to above. 908728.01/SD 374622.00146/4-30-21/MLT/bp ActiveUS 186012966v.2
19.2.5 In the event of any default beyond the notice and cure periods set forth above, Landlord may, but shall not be obligated to, make any such payment or perform or otherwise cure any such obligation, provision, covenant or condition on Tenant’s part to be observed or performed (as if this Lease had not been terminated) less the fair rental value of and may enter the Premises for such purposes). In the corresponding periodevent of Tenant’s failure to perform any of its obligations or covenants under this Lease, and such failure to perform poses an immediate material risk of injury or harm to persons or damage to or loss of property, then Landlord shall have the right to cure or otherwise perform such covenant or obligation at any time after such failure to perform by Tenant, whether or not any such notice or cure period set forth in Section 19.1 above has expired. The accelerated rent shall be discounted Any such actions undertaken by Landlord pursuant to the date payable at an annual interest rate equal foregoing provisions of this Section 19.2.5 shall not be deemed a waiver of Landlord’s rights and remedies as a result of Tenant’s failure to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is perform and shall not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, release Tenant shall be released from any and all further liability of its obligations under this Lease.
Appears in 2 contracts
Samples: Lease (Dyne Therapeutics, Inc.), Lease (Dyne Therapeutics, Inc.)
Landlord’s Remedies Upon Default. Upon the occurrence of an Event of Default by Tenant, then Landlord shall be entitled to the following remedies:
(a) Terminate this Lease by giving written notice of termination to Tenant, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damages, re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate the Rent (unless and other amounts payable hereunder except as otherwise provided herein. In the event that Tenant shall be more than ninety (90) days delinquent in default in the payment of Rent or such other amounts payablefor ninety (90) consecutive days, after expiration of notice and all cure periods hereunder). In no event Landlord shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, Rent remaining during the then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease existing Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent any amounts received by Landlord in mitigation thereof), which sum shall be discounted to present value utilizing the United States Treasury Xxxx rate (at the date payable at an annual interest rate equal of such acceleration) having a maturity comparable to the prime rate as published from time to time in the Money Section remaining Term of the Wall Street Journal, or if same is not published anymore then at Lease to the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leasenearest full calendar year.
Appears in 2 contracts
Samples: Lease Agreement (Nationsrent Inc), Lease Agreement (Nationsrent Inc)
Landlord’s Remedies Upon Default. (a) Tenant shall be in default if: (i) the payment of rent or other sums of money required to be paid by Tenant are not paid within ten (10) days after receipt of written notice from Landlord that such payment is past-due and an additional ten (10) days after receipt of a second notice from Landlord if Tenant has not paid in the first ten (10) day period; (ii) Tenant continues to fail to perform any of the covenants, terms, conditions, provisions, rules and regulations of this Lease (other than for the payment of any sums) thirty (30) days after having received written notice of such failure by Landlord (or such longer period not to exceed sixty (60) days as may be reasonably required if the failure is not capable of being cured within a thirty (30) day period and the Tenant proceeds to effect such cure with due diligence) and an additional ten (10) days after receipt of a second notice from Landlord if Tenant has not cured the breach in the first period; (iii) Tenant shall commit waste or shall assign or sublet the Premises except as expressly permitted by this Lease; (iv) Tenant shall vacate the Premises or fail to occupy and conduct Tenant’s business in the Premises for a period of fifteen (15) days or longer; (v) Tenant or any assignee or sublessee of the entire Premises shall file or have filed against it (provided that with respect to any petition filed against it, such petition shall not have been vacated within sixty (60) days from the filing), a petition for adjudication in or as a bankruptcy, for reorganization, for an arrangement, or for any other debtor or capital structure relief under any existing or future Bankruptcy Act as same may be amended, supplemented or replaced; (vi) Tenant or any assignee or sublessee shall make an assignment for the benefit of creditors; (vii) a receiver of any property of Tenant shall be appointed in any action, suit or proceeding by or against Tenant; or (viii) the interest of Tenant in the Premises or in any assets or property of Tenant shall be offered for sale or sold under execution or other legal process, (all of which shall jointly and severally constitute a “Default”).
(b) Upon a Default, Landlord, in addition to all other remedies given to Landlord in the occurrence Lease, at law or in equity, may by three (3) days written notice to Tenant terminate this Lease, and, upon terminating this Lease and without further notice re-enter the Premises by summary proceedings or otherwise and in any event may dispossess the Tenant. Under no circumstances is this Lease to be an asset for Tenant’s creditors by operation of an Event law or otherwise. No re-entry or taking possession of Default the Premises by Tenant, then Landlord shall be entitled construed as an election on Landlord’s part to the following remedies:
(a) Terminate terminate this Lease by giving unless written notice of such intention be given to Tenant or unless the termination of this Lease be decreed by a court of competent jurisdiction. Tenant agrees it is and shall remain liable for all rent and other charges and sums due hereunder, which liability shall survive the termination of this Lease, the re-entry by Landlord and the issuance of any action to Tenant, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender secure possession of the Premises. Landlord shall have the right to maintain successive actions against Tenant for recovery of such damages or for said rents and other charges and sums as are payable hereunder and Landlord shall not be required to wait to begin such actions or legal proceedings until the date this Lease would have expired. In the event of such re-entry, then Landlord may, without prejudice being obligated so to do, if the Lease be terminated, in its own behalf, relet the whole or any portion of said Premises, or the whole or any portion thereof with additional space, for any period equal to, greater or less than the remainder of the original term of this Lease, for any sum (including any rental concessions) which it may deem reasonable, to any other remedy tenant which it has for possession of the Premises or arrearages in rent or other damages, re-enter may deem suitable and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of the Premises without terminating the Lease in accordance with applicable lawsatisfactory, and relet the Premises for any use and apply the Rent received to the account of Tenantpurpose which it may deem appropriate. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such any reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any its obligations under this Lease relating to actions or omissions after such reletting other than its obligations to pay rent and real estate taxes under Section 2 and Section 3, and Landlord may apply the rent received from such reletting therefrom first to the payment of Landlord’s reasonable expenses, including attorney’s fees incurred by reason of Tenant’s default, commissions and the repairs, renovation or alteration of the Premises and then to the payment of rent and all further other sums due from Tenant hereunder, Tenant remaining liable for any deficiency.
(c) Any obligation imposed by law upon Landlord to relet the Premises shall be subject to the reasonable requirements of Landlord to develop in a harmonious manner the real estate of which the Premises are a part, and the failure of Landlord to relet, or if relet, to collect the rent under such reletting, shall not release or affect Tenant’s liability under for damages hereunder. Landlord shall use its best efforts to mitigate any damages resulting from any default by Tenant, and Tenant shall not in any event be liable for any damages reasonably mitigable by Landlord. Landlord shall have no lien or other interest in any item of Tenant’s Property.
(d) In the event of a default beyond notice and cure periods by Tenant of any of the terms, provisions, covenants, conditions, rules and regulations of this Lease, Landlord shall have the right to injunction and the right to invoke any remedy permitted to Landlord under the Lease, at law or in equity. All remedies available to Landlord are declared to be cumulative and concurrent. No termination of this Lease nor any taking or recovering of possession of the Premises shall deprive Landlord of any of its remedies or actions against Tenant.
Appears in 2 contracts
Samples: Lease Agreement (Affymetrix Inc), Lease Agreement (Affymetrix Inc)
Landlord’s Remedies Upon Default. Upon In the occurrence event Tenant shall default in the payment, when due, of any installment of rent or other charges or money obligation to be paid by Tenant hereunder (all of which monetary obligations of Tenant shall bear interest at the highest rate allowable by law, not to exceed Eighteen Percent (18%) per annum, from the date due until paid in full) and fails to cure said default within five (5) days after the same shall become due: if Tenant shall default in performing any of the covenants, terms or provisions of this lease (other than the payment when due, of any of Tenant's monetary obligations hereunder) or any of the Rules and Regulations now or hereafter established by Landlord to govern the operation of the Building and fails to cure XXXXXXXXXXXXXXXXXX if a permanent receiver is appointed for Tenant's property, of if, whether voluntarily or involuntarily, Tenant takes advantage of any debtor relief proceedings under any present or future law whereby the rent or any part thereof, is or is proposed to be reduced or payment thereof defered, or if Tenant makes an Event assignment for the benefit of Default by creditors; or if Tenant's property or effects should be levied upon or attached under process against Tenant not satisfied or resolved within 10 days after written notice from Landlord to Tenant to obtain satisfaction thereof; then, then Landlord shall be entitled to and in any of said events, Landlord, at its option may issue any one or more of the following remedies:remedies without any notice or demand whatsoever.
(a) Terminate Landlord, at its option, may at once, or at any time thereafter terminate this Lease lease by giving written notice of to Tenant whereupon this lease shall end on such termination to Tenant, in which event Tenant shall immediately surrender the Premises to by Landlord. If Tenant fails to so will at once surrender the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Demised Premises or arrearages in rent or other damages, to Landlord and remove all of Tenant's effects therefrom and Landlord may forthwith re-enter the premises and repossess himself thereof, and remove all persons and effects therefrom using such force as may be necessary, without being guilty of trespass, forcible entry, detainer or other tort.
(b) Landlord may without terminating this lease enter upon and take possession of the Demised Premises without trespass and expel or remove Tenant and any other person who may be occupying the Premises premises or any part thereofthereof without being liable for prosecution or any claim for damages therefor and if Landlord so acts, make such alterations and repairs as, in accordance Landlord's judgment, may be necessary to relet the Premises, and relet the premises and any part thereof for such rent and for such period of time and subject to such terms and conditions as Landlord may deem advisable and receive the rent therefor. Upon each such reletting, all rent received by Landlord from such reletting shall be applied first to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord, including interest thereon; second to the payment of any loss and expenses of such reletting, including brokerage fees, attorneys fees and the cost of such alterations and repairs; third to the payment of rent due and unpaid hereunder together with applicable law; orX thereon is ??? provided and the residue ?? shall be ???? by Landlord and applied in payment of future rent as the ????? become due and ????? ???? to Landlord on demand any deficiency in ????? occasion of such reletting. Notwithstanding any such reletting without termination Landlord may at any time thereafter elect to terminate this lease for such prior default.
(bc) In the event Landlord may re-enter and take possession of the Premises without terminating the terminates this Lease in accordance with applicable lawthe provisions of this paragraph 17 Landlord may in addition to any other remedy it may have, recover from Tenant all damages and relet the Premises and apply the Rent received to the account expenses Landlord may suffer or incur by reason of Tenant. In 's default hereunder including without limitation, the event Landlord so re-enters cost of recovering the Premises, reasonable attorneys' fees and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate worth at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender termination of the Premises unless Landlord so notifies Tenant in writing?????. Notwithstanding anything If any of the amount of rent and charges equivalent to the contrary set forth herein, rent reserved in no event shall Landlord have this lease for the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in remainder of the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable stated term over the balance of the Lease Term (as if this Lease had not been terminated) less the fair then reasonable rental value of the Premises for the corresponding period. The accelerated remainder of the stated term, all of which sums shall become immediately due and payable by Tenant to Landlord upon demand of Landlord.
(d) If the Rent agreed to be paid, including all other sums of money which under the provisions hereto are declared to be rent shall be discounted in arrears in one or in part for five (5) or more days, Landlord may at its option of such arrearage remains unpaid after ten (10) days written notice to Tenant ??? declare ???? hereunder converted into a tenancy from month to month and upon giving written notice to Tenant of the exercise of such option, Landlord shall herewith be entitled to all provisions of law relating to summary of eviction of monthly tenants in default in rent. Pursuit of any of the foregoing remedies shall not preclude Landlord from pursuing any other remedies herein or at law or in equity provided ?? shall pursuit of any remedy by Landlord constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damages accruing to Landlord by reason of Tenants violation of any of the covenants and provisions of this lease. Anything in this Lease to the date payable at an annual interest rate equal contrary notwithstanding, in order to cover the prime rate as published from time to time extra expense involved in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Floridahandling delinquent payments. Upon payment of the accelerated rent discounted to present value, Tenant shall pay a late charge of 5% when any installment of rent (Base Rent or any other sum which may be released from any and all further liability considered additional rental under this Lease) is paid more than five (5) days after the due date thereof. It is hereby understood that this charge is for extra expenses incurred by the Landlord in processing the delinquency. Tenant hereby appoints the person indicated in Paragraph 39 as its agent to receive service of all dispossessory or restraint proceedings and notices hereunder and under this lease, and if no person is then in charge of the premises, such service or notice may be made by attaching the same to the main entrance of the premises, provided that a copy of any such proceedings or notices shall be mailed to Tenant in the manner set forth in Paragraph 39 hereof.
Appears in 2 contracts
Samples: Sublease Agreement (Accord Networks LTD), Sublease Agreement (Accord Networks LTD)
Landlord’s Remedies Upon Default. Upon A. If the occurrence of an Event of Default by TenantTenant is in default under this Lease, then Landlord shall be entitled have all of the remedies provided for in such circumstances by Colorado law, including without limitation, the right to the following remedies:
(a) Terminate terminate this Lease by giving written notice of termination to Tenant, in which event Tenant shall immediately surrender the Leased Premises to Landlord. If Landlord and, if Tenant fails to so surrender the Premisesdo so, then Landlord may, without prejudice to any other remedy which it has may have for possession of the Premises or arrearages in rent or other damagesrent, re-enter upon and take possession of the Leased Premises without trespass and expel or remove evict Tenant and any other person who may be occupying the Leased Premises or any part thereof, by force if necessary, without being liable for any claim for damages therefore.
B. The parties agree that it is their intent that in accordance with applicable law; or
the event Tenant shall become a debtor in any voluntary or involuntary bankruptcy proceeding (ba “Proceeding”) Landlord may re-enter and take possession under the United States Bankruptcy Code, 11 U.S.C. 101, et seq. (the “Code”), for the purposes of proceeding under the Code, this Lease shall be treated as an unexpired lease of nonresidential real property under Section 365 of the Premises Code, 11 U.S.C. 365 (as may be amended), and, accordingly, shall be subject to the provisions of subsections (d)(3) and (d)(4) of said Section 365. Any person to which Tenant’s rights, duties and obligations under this Lease are assigned pursuant to the provisions of the Code, shall be deemed without terminating further act to have assumed all of the obligations of Tenant arising under this Lease both before and after the date of such assignment. Any such assignee shall upon demand execute and deliver to Landlord an instrument confirming such assumption. Any monies or other considerations payable or otherwise to be delivered in accordance connection with applicable lawsuch assignment shall be paid to Landlord, shall be the exclusive property of Landlord, and relet the Premises and apply the Rent received to the account shall not constitute property of Tenant or of Tenant. In ’s estate within the event Landlord so re-enters and takes possession meaning of the Premises as set forth above, Code. Any monies or other considerations constituting Landlord’s property under the preceding sentence not paid or delivered to Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent held in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises trust for the corresponding period. The accelerated rent shall benefit of Landlord and be discounted promptly paid to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this LeaseLandlord.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
Landlord’s Remedies Upon Default. Upon In the occurrence event Tenant shall default in the payment, when due, of any installment of rent or other charges or money obligation to be paid by Tenant hereunder (all of which monetary obligations of Tenant shall bear interest at the highest rate allowable by law, not to exceed eighteen percent (18%) per annum, from the date due until paid in full) within five (5) business days after the date any such amount is due; provided, however, that Tenant shall not be in default with respect to the first two (2) monetary payments received after such five (5) day period in any Lease Year until five (5) days after Tenant's receipt of written notice of such late payment; or if Tenant shall default in performing any of the covenants, terms or provisions of this Lease (other than the payment, when due, of any of Tenant's monetary obligations hereunder) or any of the Rules and Regulations now or hereafter established by Landlord to govern the operation of the building and fails to cure such default within 30 calendar days after written notice thereof from Landlord; provided, however, that, solely with respect to non-monetary defaults which cannot with due diligence and best efforts be cured within such thirty (30) day period if, within such thirty (30) day period Tenant commences and thereafter diligently pursues the cure of any such non-monetary default, Tenant shall be granted an Event additional reasonable period of Default by time to effect a cure; or if Tenant shall abandon the Premises and discontinue timely rental payments; or if Tenant is adjudicated a bankrupt; or if a permanent receiver is appointed for Tenant's property; or if, whether voluntarily or involuntarily, Tenant takes advantage of any debtor relief proceedings under any present or future law, whereby the rent or any part thereof, is or is proposed to be, reduced or payment thereof deferred; or if Tenant makes an assignment for the benefit of creditors or if Tenant's property or effects should be levied upon or attached under process against Tenant, then not satisfied or dissolved within 10 calendar days after written notice from Landlord shall be entitled to Tenant to obtain satisfaction thereof; then, and in any of said events, Landlord, at its option may pursue any one or more of the following remedies:
(a) Terminate remedies without any notice or demand whatsoever: . Landlord, at its option, may at once, or at any time thereafter terminate this Lease by giving written notice of termination to Tenant, in which event whereupon this Lease shall end concurrently with the receipt by Tenant shall immediately of such notice. Upon such termination by Landlord, Tenant will at once surrender possession of the Premises to LandlordLandlord and remove all of Tenant's effects therefrom, and Landlord may forthwith re-enter the Premises and repossess himself thereof, and remove all persons and effects therefrom, using such force as may be necessary, without being guilty of trespass, forcible entry, detainer or other tort. If Tenant fails to so surrender the Premises, then . Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damagesterminating this Lease, re-enter upon and take possession of the Premises without trespass and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, without being liable for prosecution or any claim for damages therefor, and, if Landlord so elects, make such alterations and repairs as, in accordance with applicable law; or
(b) Landlord Landlord's judgment, may re-enter and take possession of be necessary to relet the Premises without terminating the Lease in accordance with applicable lawPremises, and relet such space or any part thereof for such rent and for such period of time and subject to such terms and conditions as Landlord may deem advisable and receive the Premises and apply the Rent rent therefor. Upon each such reletting, all rent received by Landlord from such reletting shall be applied first to the account payment of Tenantany indebtedness other than rent due hereunder from Tenant to Landlord, including interest thereon; second, to the payment of any loss or expense of such reletting, including brokerage fees, reasonable attorneys' fees, advertising and promotion expenses and the cost of such alterations and repairs; third, to the payment of rent due and unpaid hereunder, together with interest thereon as herein provided; and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. Tenant agrees to pay to Landlord, on demand, any deficiency that may arise by reason of such reletting. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such prior default. . In the event Landlord so re-enters and takes possession terminates this Lease in accordance with the provisions of the Premises as set forth abovethis paragraph 16, Landlord agrees may, in addition to use any other remedy it may have, recover from Tenant all damages and expenses Landlord may suffer or incur by reason of Tenant's default hereunder, including, without limitation, the cost of recovering. the Premises, reasonable efforts to relet attorneys' fees and the Premises for a commercially reasonable rate worth at the time of such reletting. No reletting by Landlord is considered termination of the excess, if any, of the amount of rent and charges equivalent to be for Landlord's own account unless Landlord has notified Tenant the rent reserved in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender for the remainder of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable stated term over the balance of the Lease Term (as if this Lease had not been terminated) less the fair then reasonable rental value of the Premises for the corresponding periodremainder of the stated term based upon a reduction to present value calculation at the rate of ten percent (10%), all of which sums shall become immediately due and payable by Tenant to Landlord upon demand of Landlord. The accelerated rent shall be discounted . Anything in this Lease to the date payable at an annual interest rate equal contrary notwithstanding, in order to cover the prime rate as published from time to time extra expense involved in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present valuehandling delinquent payments, Tenant shall pay a "late charge" of Two Hundred Fifty and No/100 Dollars ($250.00) when any installment of rent (basic or otherwise, as may be released from any and all further liability considered additional rental under this Lease) is paid more than seven (7) business days after the due date thereof. It is hereby understood that this charge is for extra expenses incurred by the Landlord in processing the delinquency and shall not be considered interest. . Pursuit of any or the foregoing remedies shall not preclude Landlord from pursuing any other remedies herein or at law or in equity provided, nor shall pursuit of any remedy by Landlord constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damages accruing to Landlord by reason of Tenant's violation of any of the covenants and provisions of this Lease.
Appears in 1 contract
Samples: Lease (E Spire Communications Inc)
Landlord’s Remedies Upon Default. Upon Landlord shall have the occurrence following remedies if Tenant commits a default. These remedies are not exclusive but are in addition to any remedies now or later allowed by law.
A. Landlord shall have the right either to terminate Tenant’s right to possession of an Event the Premises and thus terminate this Lease or to have this Lease continue in full force and effect with Tenant at all times having the right to possession of Default by the Premises. Should Landlord elect to terminate Tenant’s right to possession of the Premises and terminate this Lease, then Landlord shall be entitled to have the following remedies:
(a) Terminate this Lease by giving written notice immediate right of termination to Tenant, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender entry and may remove all persons and property from the Premises, then Landlord may, without prejudice to any other remedy it has . The property so removed may be stored in a public warehouse or elsewhere at the cost and for possession of the Premises or arrearages in rent or other damages, re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In Upon such termination, Landlord, in addition to any other rights and remedies, shall be entitled to recover from Tenant the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate worth at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender award of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to amount by which the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant unpaid rent for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if of this Lease had not been terminated) less after the fair time of award exceeds the amount of such rental value loss that the Tenant could have reasonably avoided. The worth at the time of award of the amount referred to in this Section shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of Kansas City at the time of the award plus 2%. Prior to such award, Landlord may re-let the Premises for the corresponding period. The accelerated rent shall be discounted purpose of mitigating damages suffered by Landlord because of Tenant’s failure to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability perform Tenant’s obligations under this Lease.
B. Any proof of Tenant of the amount of rent loss that could have reasonably been avoided shall be made in the following manner: Landlord and Tenant shall each select a licensed real estate broker in the business of renting property of the same type and use as the Premises and in the same geographic vicinity. The two real estate brokers shall select a third licensed real estate broker, and the three licensed real estate brokers so selected shall determine the amount of rent loss that could have been reasonably avoided for the balance of the Term of this Lease after the time of award. The decision of the majority of the licensed real estate brokers shall be final and binding upon the parties to this Lease.
C. As used in this Lease, the term “time of award” shall mean either the date upon which Tenant pays to Landlord the amount recoverable by Landlord as set forth in this Lease or the date of entry of any determination, order, or judgment of any court, or other legally constituted body, or any arbitrators determining the amount recoverable, whichever occurs first.
Appears in 1 contract
Samples: Lease (Aratana Therapeutics, Inc.)
Landlord’s Remedies Upon Default. Tenant shall be in default under this Lease if Tenant (i) fails to pay any installment of Base Rent, Additional Rent or other charges or money obligation to be paid by Tenant hereunder within five (5) days after the same shall become due (all of which monetary obligations of Tenant shall bear interest at the highest rate allowable by law, not to exceed 18% per annum from the date due until paid); provided, however, that Landlord shall not exercise its remedies with respect to the first two (2) monetary payments received after such five (5) day period in any Lease Year unless Tenant fails to cure such default within five (5) days after Landlord provides Tenant with written notice of such late payment; or (ii) defaults in the performance of any of the covenants, terms or provisions of this Lease (other than the payment, when due, of any of Tenant’s monetary obligations hereunder) or any of the Rules and Regulations now or hereafter established by Landlord to govern the operation of this Building and fails to cure such default within thirty (30) days after written notice thereof from Landlord; or (iii) abandons the Premises or fails to keep the Premises continuously and uninterruptedly open for business; or (iv) files a voluntary petition in bankruptcy, or any similar petition seeking relief under any present or future federal, or other bankruptcy or insolvency statute or law; or if a proceeding under any present or future federal, state or other bankruptcy or insolvency statute or law shall be filed against Tenant or any asset of Tenant, and such proceeding shall not have been dismissed or vacated within thirty (30) days of the date of such filing; or (v) makes an assignment for the benefit of its creditors. Upon the occurrence of an Event any of Default by Tenantthe above events, then Landlord shall be entitled to Landlord, at its option, may pursue any one or more of the following remediesremedies without any notice or demand whatsoever:
(a) Terminate Landlord, at its option, may at once, or at any time thereafter, terminate this Lease by giving written notice of termination to Tenant, in which event whereupon this Lease shall end. Upon such termination by Landlord, Tenant shall immediately will at once surrender possession of the Premises to Landlord. If Tenant fails to so surrender Landlord and remove all of Tenants’ effects therefrom, and Landlord may forthwith re-enter the PremisesPremises and repossess itself thereof, then and remove all persons and effects therefrom, using such force as may be necessary, without being guilty of trespass, forcible entry, detainer or other tort.
(b) Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damagesterminating this Lease, re-enter upon and take possession of the Premises without trespass and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, without being liable for prosecution or any claim for damages therefor, and, if Landlord so elects, make such alterations and repairs as, in accordance with applicable law; or
(b) Landlord Landlord’s judgment, may re-enter and take possession of be necessary to relet the Premises without terminating the Lease in accordance with applicable lawPremises, and relet the Premises or any part thereof for such rent and apply for such period of time and subject to such terms and conditions as Landlord may deem advisable and receive the Rent rent therefor. Upon each such reletting, the rent received by Landlord in respect of such reletting shall be applied first to the account payment of Tenantany indebtedness other than rent due hereunder from Tenant to Landlord, including interest thereon; second, to the payment of any loss and expenses of such reletting, including brokerage fees, attorneys’ fees and the cost of such alterations and repair; third, to the payment of rent due and unpaid hereunder, together with interest thereon as herein provided; and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. Tenant agrees to pay to Landlord, on demand, any deficiency that may arise by reason of such reletting. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such prior default.
(c) In the event Landlord so shall re-enters enter the Premises and/or terminate this Lease in accordance with the provisions of this Article, Landlord may, in addition to any other remedy it may have, recover from Tenant all damages and takes possession expenses Landlord may suffer or incur by reason of Tenant’s default hereunder, including without limitation, the cost of recovering the Premises and reasonable attorney fees. Tenant agrees that actual damages to Landlord resulting from Landlord’s exercise of the remedies set forth in paragraphs (a) or (b) above, will be difficult to ascertain, and therefore, after a default of Tenant hereunder, Tenant shall also pay to Landlord “Liquidated Damages” for the failure of Tenant to observe and perform the covenants of this Lease, which at the election of Landlord, shall be either: (A) (x) the sum of (i) the minimum monthly rent, plus (ii) the Additional Rent payable hereunder for the month immediately preceding such failure to operate, re-entry or termination, less (z) the net amount, if any, of the rents collected on account of the lease or leases of the Premises for each month of the period which would otherwise have constituted the balance of the Term of this Lease, all of which sums shall become due and payable by Tenant to Landlord upon the first day of each calendar month during the otherwise unexpired portion of the Term hereof; or (B) the whole of said Liquidated Damages calculated under clause (A) multiplied by the number of months then remaining in the Lease Term, discounted to present value at a rate of six percent (6%) per annum as set forth aboveof the date of termination or re-entry by Landlord; provided, however, that in the event Landlord agrees to use reasonable efforts to shall relet the Premises and the rent received by Landlord in respect of such reletting together with the discounted Liquidated Damages paid by Tenant, less the costs and expenses incurred by Landlord in such reletting, shall exceed the rent reserved hereunder for that period which would otherwise have constituted the remainder of the Term hereof, then Landlord shall, upon the expiration of the period which would have constituted the Term of this Lease, refund to Tenant the lesser of the amount of such excess or the discounted Liquidated Damages theretofore paid by Tenant.
(d) If the rent agreed to be paid, including all other sums of money which under the provisions hereto are declared to be rent, shall be in arrears in whole or in part for five (5) or more business days, Landlord may at its option (if such arrearage remains unpaid after ten (10) days written notice to Tenant) declare the tenancy hereunder converted into a commercially reasonable rate tenancy from month to month, and upon giving written notice to Tenant of the exercise of such option, Landlord shall forthwith be entitled to all provisions of law relating to the summary eviction of monthly tenants in default in rent, in addition to all other remedies provided for in this Article, in order to secure Tenant’s obligations under this Lease, Landlord shall have a security interest in all tangible personal property of Tenant on or about the Premises to the extent of all monies owed by Tenant to Landlord, including but not limited to, inventory, furniture, trade fixtures, equipment, etc., and all such property shall, at Landlord’s option, become the property of Landlord in the event Tenant fails to cure a default under this Lease within any period for notice and cure provided for herein. Tenant agrees, upon the request of Landlord, to execute any and all documents which Landlord deems necessary or desirable in order to perfect such security interest, including, but not limited to, a U.C.C.-1 financing statement and a security agreement and to pay all costs, taxes or fees incurred in recording or filing any such documents. Tenant shall not grant a security interest in or permit a lien to attach to any of the furniture, fixtures, equipment or other personal property used in the operation of Tenant’s business in the Premises or otherwise located in the Premises without the prior written consent of Landlord, which Landlord may withhold in its sole and absolute discretion. Tenant hereby appoints any attorney of any court of record within the United States who may be, from time to time, designated in writing by Landlord (including any successor or assign of Landlord’s estate in the Premises) (the “Agent”) as Tenant’s attorney-in-fact with full power and authority, for and on behalf of Tenant and Tenant’s successors and assigns, to execute any documents and to take, at the time sole cost and expense of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition(or Tenant’s successor or assign), no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth hereinall actions necessary or required, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages Agent’s discretion (including, without limitation, the power and authority to execute, acknowledge and record documents on Tenant’s behalf) to contact, negotiate with, and require information from any claims lender or other party claiming a security interest or other interest in any property located in the Premises, including, without limitation, the right on Tenant’s behalf, in accordance with the provisions of Section 9-210 of the Uniform Commercial Code, to make a Request for lost profits an accounting and/or lost business opportunity)a Request regarding a list of collateral and/or a Request regarding a statement of account. If Landlord does accelerate the Rent, then the accelerated rent The foregoing power of attorney is coupled with an interest and is irrevocable and shall be exercisable by Landlord with respect to any liens or other interests claimed in any property located in the Premises, including liens or other interests which were not consented to by Landlord or were otherwise granted or created in violation of this Lease.
(e) Anything in this Lease to the contrary notwithstanding, in order to cover the extra expense involved in handling delinquent payments, Tenant shall pay a “late charge” in an amount equal to the greater of (i) 5% of any delinquent payment, or (ii) $250.00, when any installment of Base Rent payable over (or any other amount as may be considered Additional Rent under this Lease) is paid more than five (5) days after the balance due date thereof. It is hereby understood that this charge is for extra expenses incurred by the Landlord in processing the delinquency.
(f) Tenant hereby appoints as its agent to receive service of the Lease Term (as if all dispossessory or other proceedings and notices thereunder and under this Lease had not been terminated) less the fair rental value person apparently in charge of the Premises for at the corresponding period. The accelerated rent time, and if no person then appears to be in charge of the Premises, then such service or notice may be made by attaching the same to the main entrance of the Premises, provided that, in such later event, a copy of any such proceedings or notice shall also be mailed to Tenant in the manner set forth in Article 33 hereof.
(g) Tenant shall be discounted considered in “Habitual Default” of this Lease upon (i) Tenant’s failure, on three (3) or more occasions during any Lease Year, to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section pay, when due, any installment of the Wall Street JournalBase Rent, Additional Rent, or if same is not published anymore then at any other sum required by the prime rate published terms of this Lease, or (ii) Tenant’s repeated violation of, or failure to comply with, any term, covenant or condition of this Lease after written notice of such violation or failure to comply has been given by Citibank in FloridaLandlord to Tenant. Upon payment the occurrence of an event of Habitual Default on the accelerated rent discounted to present valuepart of Tenant, Tenant shall immediately be deemed to have released from any and all further liability options or rights granted, or to be granted, to Tenant under the terms of this Lease (including, without limitation, rights of renewal, rights to terminate, or rights of first refusal), and Landlord may, in addition to its other remedies under this Lease, by notice to Tenant, increase the security deposit required hereunder to an amount equal to six (6) months Base Rent (or, at Landlord’s option, a lesser period) such amount to be due and payable within ten (10) days after the date of such notice.
(h) Pursuit of any of the foregoing remedies shall not preclude Landlord from pursuing any other remedies therein or at law or in equity provided, nor shall pursuit of any remedy by Landlord constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damages accruing to Landlord by reason of Tenant’s violation of any of the covenants and provisions of this Lease. Tenant hereby waives any right to assert or maintain any permissive counterclaims against Landlord in any action brought by Landlord to obtain possession of the Premises. No act of Landlord (including, without limitation, acts of maintenance, efforts to relet the Premises, or any other actions taken by Landlord or its agents to protect Landlord’s interests under this Lease) other than a written notice of termination, shall terminate this Lease. The acceptance of keys to the Premises by Landlord, its agents, employees, contractors or other persons on Landlord’s behalf shall not be deemed or constitute to effect a termination of this Lease unless such early termination is evidenced by a written instrument signed by Landlord. The receipt or acceptance of payments of Minimum Rent or Additional Rent by Landlord, its agents, employees, contractors or other persons on Landlord’s behalf after Landlord has elected to terminate this Lease or reenter as provided in this Article shall not be deemed or constitute to effect a cure by Tenant of any default, but shall be deemed to be payment on account with respect to Tenant’s underlying obligations, and Landlord may accept such check without prejudice to any other rights or remedies which it may have against the Tenant.
Appears in 1 contract
Landlord’s Remedies Upon Default. Upon the occurrence of an Event any event of Default by Tenantdefault, then Landlord shall be entitled have the option to pursue any one or more of the following remediesremedies without notice or demand whatsoever:
(a) Terminate this Lease by giving Give Tenant written notice of termination intent to Tenantterminate this Lease on the date of such notice or on any later date as may be specified herein, in which event Tenant shall immediately surrender the Premises whereupon tenant's right to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages shall cease and this Lease, except as to Tenant's liability, shall be terminated. In the event this Lease is terminated in rent or accordance with the provisions of this paragraph, Tenant shall remain liable to Landlord for damages in an amount equal to the Rent and other damagessums which would have been owing by Tenant hereunder for the balance of the Term had this Lease not been terminated, re-enter less the net proceeds, it any, of any reletting of the Premises by Landlord subsequent to such termination, deducting all Landlord's expenses including, without limitations, all repossession
(b) Reenter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, and repossess the same as of Landlord's former estate and expel Tenant and those claiming through and under Tenant, and remove the effects of both or either, using such force for such purposes as may be necessary, without being liable for prosecution thereof, without being deemed guilty of any manner of trespass, and without prejudice to any remedies for arrears of Rent or proceeding breach of covenants or conditions. Should Landlord elect to reenter as provided in accordance with applicable this subparagraph, or should Landlord take possession pursuant to legal proceedings or pursuant to any notice provided for by law; or
, Landlord from time to time, without terminating this Lease, relet the Premises or any part thereof in Landlord's or Tenant's name, but for the account of Tenant, for such Term or Terms (bwhich may be greater or less than the period which would otherwise have constituted the balance of Term of this Lease) and on such conditions and upon other Terms (which may include concessions of free Rent and alteration and repair of the Premises) as Landlord. In its sole discretion, may determine, and Landlord may re-enter collect and take receive the Rents therefor. Landlord shall in no way be responsible or liable for any failure to relet the Premises, or any part thereof, or for any failure to collect any Rent due upon such retailing. No such reentry or taking possession of the Premises without terminating by Landlord shall be construed as an election on Landlord's part to terminate this Lease unless a written notice of such intention is given to Tenant. No notice from Landlord hereunder or under a forcible entry and detainer statute or similar law shall constitute an election by Landlord to terminate this Lease unless such notice specifically so states. Landlord reserves the right following any such reentry and/or retailing to exercise its right to terminate this Lease by giving Tenant such written notice, in which event the Lease will terminate as specified in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenantsaid notice. In the event that Landlord so re-enters and does not elect to terminate this Lease but takes possession as provided for in this subparagraph, Tenant shall pay to Landlord (i) the Rent and other charges as herein provided which would be payable hereunder if such repossession had not occurred, less (ii) the net proceeds, if any, of any retailing of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for after deducting all Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (reasonable expenses including, without limitation, any claims all repossession costs, brokerage commissions, legal expenses, attorneys' fees, expenses of employees, alteration and repair costs and expense of preparation for lost profits and/or lost business opportunity)such retailing. If Tenant shall pay such Rent and other sums to Landlord does accelerate monthly on the Rent, then the accelerated rent shall be an amount equal to days on which the Rent would have been payable over the balance of the Lease Term (as hereunder if this Lease possession had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leaseretaken.
Appears in 1 contract
Landlord’s Remedies Upon Default. Upon In the event of the occurrence of an any Event of Default set forth in Article XI hereof by Tenant, then Landlord Tenant after ten (10) days’ written notice (except there shall be entitled no requirement for notice for failure to pay rent) Landlord, besides any other rights or remedies it may have by law or otherwise, shall have, with or without process of law, and without demand or notice, using such force as is necessary, the following remedies:
(a) Terminate this Lease by giving written notice immediate right of termination to Tenant, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender re-entry and may remove all persons and property from the Premises, then Landlord may, and resume possession by an action in law or equity or by force or otherwise and without prejudice to being liable for trespass of for any other remedy it has for possession of the Premises or arrearages in rent or other damages, re-enter damages and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of the Premises without terminating this lease. Such property may be removed and stored at the Lease in accordance with applicable law, cost of and relet the Premises and apply the Rent received to for the account of Tenant. In the event Should Landlord so elect to re-enters and takes enter as herein provided, or should Landlord take possession of the Premises as set forth abovepursuant to legal proceedings or pursuant to any notice provided for by law, Landlord agrees to use reasonable efforts to may either terminate this Lease or may, from time top time, without terminating this Lease, relet the Premises said premises or any part thereof for such term or terms (which may be for a commercially reasonable rate term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions as Landlord in the time exercise of Landlord’s sole discretion may deem advisable with the right to make alterations and repairs to said Premises. Upon such reletting (a) Tenant shall be immediately liable to pay to Landlord, in addition to any indebtedness other than rent due hereunder, the cost and expense of such reletting and of such alterations and repairs incurred by Landlord, and the amount if any, by which the rent reserved in this Lease for the period of such reletting (up to but not beyond the term of this Lease) exceeds the amount agreed to be paid as rent for the premises for such period of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no : or (b) at the option of landlord rents received the landlord from such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in applied first, to the payment of Rent or any indebtedness, other than rent due hereunder from Tenant to Landlord; second, to the payment of any costs and expense of such other amounts payablereletting and of such alterations and repairs; third to the payment of rent due and unpaid hereunder; and the residue, after expiration if any, shall be held by landlord and applied in payment of notice future rent as the same may become due and all cure periods payable hereunder). In no event shall Should Landlord have the right to xxx Tenant at any time terminate this Lease for any consequentialbreach, punitive or incidental in addition to any other remedy Landlord may have, Landlord may recover from Tenant all damages (includingLandlord may incur by reason of such breach, without limitationincluding the cost of recovering the Premises, any claims and the rent reserved and charged in this Lease for lost profits and/or lost business opportunity). If Landlord does accelerate the Rentremainder of the stated term, then the accelerated rent together with attorney’s fees and cost of litigation, all of which amounts shall be an amount equal immediately due and payable from Tenant to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent Landlord, and Landlord shall be discounted have no obligation to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leaserelet.
Appears in 1 contract
Samples: Residential Lease Agreement
Landlord’s Remedies Upon Default. Upon In the occurrence event that Tenant fails to pay any rent or other charges due hereunder within ten (10) days after notice from Landlord that the same is due; or fails to perform any of an Event Tenant’s obligations under the terms, conditions, or covenants of Default by Tenant, then Landlord shall be entitled to the following remedies:
(a) Terminate this Lease by giving for more than thirty (30) days after receipt of written notice of termination to Tenantsuch failure or if such failure shall be of such nature that the same cannot be reasonable cured or remedied within such thirty (30) day period, in which event Tenant shall immediately surrender not in good faith have commenced the curing or remedying of such failure within such thirty (30) day period and thereafter diligently proceed therewith to completion; or if the Tenant shall abandon the Leased Premises; or if this Lease or the estate created hereby, shall be taken in execution or by other process of law; or if the Tenant shall be adjudicated insolvent or bankrupt pursuant to the provisions of any state or federal insolvency or bankruptcy act; or if a receiver or Trustee or the property of the Tenant shall be appointed by reason of the Tenant's insolvency and inability to pay debts; or if any assignment shall be made of the Tenant's property for the benefit of the creditors,(all of the foregoing being events of default), then and in any such event, the Landlord, besides other rights or remedies it may have, shall have the immediate right to re-enter the Leased Premises and to Landlordremove all persons and property there from without notice or resort to legal process and without being deemed guilty of trespass or become liable for any loss or damage which may be occasioned thereby. If Tenant fails shall fail to so surrender pay the Premises, then Landlord may, without prejudice to rent or any other remedy it has for possession charges within Ten (10) days after same becomes due and payable, in addition to Tenant’s late charge, such unpaid amounts shall bear interest from the due date at FOUR percent (4.00%) above the prime interest rate of the Premises Citi Bank or arrearages in rent or other damages, re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder)its successor. In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published payable by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leaseexceed eighteen percent (18%).
Appears in 1 contract
Landlord’s Remedies Upon Default. Upon the occurrence of any event of default, Landlord shall have the option to pursue any one or more of the following remedies without notice or demand whatsoever:
(a) Give Tenant written notice of intent to terminate this Lease on the date of such notice or on any later date as may be specified therein, whereupon Tenant's right to possession of the Premises shall cease and this Lease, except as to Tenant's liability, shall be terminated. In the event this Lease is terminated in accordance with the provisions of this subparagraph, Tenant shall remain liable to Landlord for damages in an Event amount equal to the Rent, any sums owing by Tenant pursuant to the Conversion Note, any deferred unpaid Rent as provided in Section 3.1 above, and other sums which would have been owing by Tenant hereunder for the balance of Default the Term had this Lease not been terminated, less the net proceeds, if any, of any reletting of the Premises by TenantLandlord subsequent to such termination, then after deducting all Landlord's reasonable expenses including, without limitation, all repossession costs, brokerage commissions, legal expenses, attorney's fees, expenses of employees, alteration and repair costs and expenses of preparation for such reletting. Landlord shall be entitled to collect such damages from Tenant monthly on the following remedies:
(a) Terminate days on which the Rent and other charges would have been payable hereunder if this Lease by giving written notice Less, had not been terminated. Alternatively, at the option of termination to Tenantthe Landlord, in the event this lease is so terminated, Landlord shall be entitled to recover forthwith against Tenant as damages for loss of the bargain and not as a penalty an aggregate sum, which event at the time of such termination of this Lease, represents the excess, if any, of the aggregate of the Rent and all other charges payable by Tenant shall immediately surrender hereunder that would have accrued for the balance of the Term over the aggregate fair market rental value of the Premises (such rental value shall pertain to Landlord. If Tenant fails to so surrender the occupation of the Premises, then Landlord maybut also such other charges as are required to be paid by Tenant under the terms of this Lease) for the balance of such Term, without prejudice both discontinued to any other remedy it has for possession of the Premises or arrearages in rent or other damages, re-enter present worth.
(b) Reenter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, and repossess the same as of Landlord's former estate and expel Tenant and those claiming through and under Tenant, and remove the effects of both or either, using such force for such purposes as may be necessary, without being liable for prosecution thereof, without being deemed guilty of any manner of trespass, and without prejudice to any remedies for arrears of Rent or preceding breach of covenants or conditions. Should Landlord elect to reenter as provided in accordance with applicable this subparagraph, or should Landlord elect to take possession pursuant to legal proceedings or pursuant to any notice provided for by law; or
, Landlord may, from time to time, without terminating this Lease, relet the Premises or any part thereof in Landlord's or Tenant's name, but for the account of Tenant, for such Term or Terms (bwhich may be greater or less than the period which would otherwise have constituted the balance of the Term of this Lease) and on such conditions and upon other Terms (which may include concessions of free Rent and alteration and repair of the Premises) as Landlord, in its sole discretion, may determine, and Landlord may re-enter collect and take receive the Rents therefor. Landlord shall in no way be responsible or liable for any failure to relet the Premises, or any part thereof, or for any failure to collect any Rent due upon such reletting, except than Tenant does not hereby waive any defense which Tenant may have for Landlord's failure to mitigate its damages. No such reentry or taking possession of the Premises without terminating by Landlord shall be construed as an election on Landlord's part to terminate this Lease unless a written notice of such intention is given to Tenant. No notice from Landlord hereunder or under a forcible entry and detainer statute or similar law shall constitute an election by Landlord to terminate this Lease unless such notice specifically so states. Landlord reserves the right following any such reentry and/or reletting to exercise its right to terminate this Lease by giving Tenant such written notice, in which event the Lease will terminate as specified in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenantsaid notice. In the event that Landlord so re-enters and does not elect to terminate this Lease but takes possession as provided for in this subparagraph, Tenant shall pay Landlord (i) the Rent and other charges as herein provided which would be payable hereunder if such repossession had not occurred, less (ii) the net proceeds, if any, of any reletting of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for after deducting all Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (reasonable expenses including, without limitation, any claims all repossession costs, brokerage commissions, legal expenses, attorney's fees, expenses of employees, alteration and repair costs and expenses of preparation for lost profits and/or lost business opportunity)such reletting. If Tenant shall pay such Rent and other sums to Landlord does accelerate monthly on the Rent, then the accelerated rent shall be an amount equal to days on which the Rent would have been payable over the balance of the Lease Term (as hereunder if this Lease possession had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leaseretaken.
Appears in 1 contract
Samples: Office Lease (V2K International Inc)
Landlord’s Remedies Upon Default. Tenant shall be in default under this Lease if Tenant (i) fails to pay any installment of Base Rent, Additional Rent or other charges or money obligation to be paid by Tenant hereunder within five (5) days after the same shall become due (all of which monetary obligations of Tenant shall bear interest at the highest rate allowable by law, not to exceed 18% per annum from the date due until paid); or (ii) defaults in the performance of any of the covenants, terms or provisions of this Lease (other than the payment, when due, of any of Tenant’s monetary obligations hereunder) or any of the Rules and Regulations now or hereafter established by Landlord to govern the operation of this Building and fails to cure such default within twenty (20) days after written notice thereof from Landlord; or (iii) abandons the Premises or fails to keep the Premises continuously and uninterruptedly open for business; or (iv) files a voluntary petition in bankruptcy, or any similar petition seeking relief under any present or future federal, or other bankruptcy or insolvency statute or law; or if a proceeding under any present or future federal, state or other bankruptcy or insolvency statute or law shall be filed against Tenant or any asset of Tenant, and such proceeding shall not have been dismissed or vacated within thirty (30) days of the date of such filing; or (v) makes an assignment for the benefit of its creditors. Upon the occurrence of an Event any of Default by Tenantthe above events, then Landlord shall be entitled to Landlord, at its option, may pursue any one or more of the following remediesremedies without any notice or demand whatsoever:
(a) Terminate Landlord, at its option, may at once, or at any time thereafter, terminate this Lease by giving written notice of termination to Tenant, in which event whereupon this Lease shall end. Upon such termination by Landlord, Tenant shall immediately will at once surrender possession of the Premises to Landlord. If Tenant fails Landlord and remove all of Tenants’ effects therefrom, and, subject to so surrender legal process, Landlord may forthwith re-enter the PremisesPremises and repossess itself thereof, then and remove all persons and effects therefrom, using such force as may be necessary, without being guilty of trespass, forcible entry, detainer or other tort.
(b) Landlord may, without prejudice terminating this Lease but subject to any other remedy it has for possession of the Premises or arrearages in rent or other damageslegal process, re-enter upon and take possession of the Premises without trespass and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, without being liable for prosecution or any claim for damages therefor, and, if Landlord so elects, make such alterations and repairs as, in accordance with applicable law; or
(b) Landlord Landlord’s judgement, may re-enter and take possession of be necessary to relet the Premises without terminating the Lease in accordance with applicable lawPremises, and relet the Premises or any part thereof for such rent and apply for such period of time and subject to such terms and conditions as Landlord may deem advisable and receive the Rent rent therefor. Upon each such reletting, the rent received by Landlord in respect of such reletting shall be applied first to the account payment of Tenantany indebtedness other than rent due hereunder from Tenant to Landlord, including interest thereon; second, to the payment of any loss and expenses of such reletting, including brokerage fees, attorneys’ fees and the cost of such alterations and repair; third, to the payment of rent due and unpaid hereunder, together with interest thereon as herein provided; and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. Tenant agrees to pay to Landlord, on demand, any deficiency that may arise by reason of such reletting. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such prior default.
(c) In the event Landlord so shall re-enters enter the Premises and/or terminate this Lease in accordance with the provisions of this Article 16, Landlord may, in addition to any other remedy it may have, recover from Tenant all damages and takes possession expenses Landlord may suffer or incur by reason of Tenant’s default hereunder, including without limitation, the cost of recovering the Premises and reasonable attorney fees. Tenant agrees that actual damages to Landlord resulting from Landlord’s exercise of the remedies set forth in Paragraphs (a) or (b) above, will be difficult to ascertain, and therefore, after a default of Tenant hereunder, Tenant shall also pay to Landlord “Liquidated Damages” for the failure of Tenant to observe and perform the covenants of this Lease, which at the election of Landlord, shall be either: (A) (x) the sum of (i) the minimum monthly rent, plus (ii) the Additional Rent payable hereunder for the month immediately preceding such failure to operate, re-entry or termination, less (z) the net amount, if any, of the rents collected on account of the lease or leases of the Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease, all of which sums shall become due and payable by Tenant to Landlord upon the first day of each calendar month during the otherwise unexpired portion of the term hereof; or (B) the whole of said Liquidated Damages calculated under Clause (A) multiplied by the number of months then remaining in the lease term, discounted to present value at a rate of six percent (6%) per annum as set forth aboveof the date of termination or re-entry by Landlord; provided, however, that in the event Landlord agrees to use reasonable efforts to shall relet the Premises for a commercially reasonable rate at and the time rent received by Landlord in respect of such reletting. No reletting together with the discounted Liquidated Damages paid by Tenant, less the costs and expenses incurred by Landlord is considered in such reletting, shall exceed the rent reserved hereunder for that period which would otherwise have constituted the remainder of the term hereof, then Landlord shall, upon the expiration of the period which would have constituted the term of this Lease, refund to Tenant the lesser of the amount of such excess or the discounted Liquidated Damages theretofore paid by Tenant.
(d) If the rent agreed to be paid, including all other sums of money which under the provisions hereto are declared to be rent, shall be in arrears in whole or in part for five (5) or more days, Landlord may at its option (if such arrearage remains unpaid after ten (10) days written notice to Tenant) declare the tenancy hereunder converted into a tenancy from month to month, and upon giving written notice to Tenant of the exercise of such option, Landlord shall forthwith be entitled to all provisions of law relating to the summary eviction of monthly tenants in default in rent. In addition to all other remedies provided for in this Article 16, in order to secure Tenant’s obligations under this Lease, Landlord shall have a security interest in all tangible personal property of Tenant on or about the Premises to the extent of all monies owed by Tenant to Landlord's own account unless , including but not limited to, inventory, furniture, trade fixtures, equipment, etc., and all such property shall, at Landlord’s option, become the property of Landlord has notified in the event Tenant fails to cure a default under this Lease within any period for notice and cure provided for herein. Tenant agrees, upon the request of Landlord, to execute any and all documents which Landlord deems necessary or desirable in writing order to perfect such security interest, including, but not limited to, a U.C.C.-1 financing statement and a security agreement and to pay all costs, taxes or fees incurred in recording or filing any such documents.
(e) Anything in this Lease to the contrary notwithstanding, in order to cover the extra expense involved in handling delinquent payments, Tenant shall pay a “late charge” in an amount equal to the greater of (i) 5% of any delinquent payment, or (ii) $250.00, when any installment of Base Rent (or any other amount as may be considered Additional Rent under this Lease) is paid more than five (5) days after the due date thereof. It is hereby understood that this charge is for extra expenses incurred by the Landlord in processing the delinquency.
(f) Tenant hereby appoints as its agent to receive service of all dispossessory or other proceedings and notices thereunder and under this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender the person apparently in charge of the Premises unless Landlord so notifies at the time, and if no person then appears to be in charge of the Premises, then such service or notice may be made by attaching the same to the main entrance of the Premises, provided that, in such later event, a copy of any such proceedings or notice shall also be mailed to Tenant in writing. Notwithstanding anything to the contrary manner set forth herein, in no event shall Landlord have the right to accelerate Rent Article 33 hereof.
(unless g) Tenant shall be considered in “Habitual Default” of this Lease upon (i) Tenant’s failure, on two (2) or more than ninety occasions during any Lease Year, to pay, when due, any installment of Base Rent, Additional Rent, or any other sum required by the terms of this Lease, or (90ii) days delinquent in Tenant’s repeated violation of, or failure to comply with, any term, covenant or condition of this Lease after written notice of such violation or failure to comply has been given by Landlord to Tenant. Upon the payment occurrence of Rent or such other amounts payablean event of Habitual Default on the part of Tenant, after expiration of notice Tenant shall immediately be deemed to have released any and all cure periods hereunder). In no event shall Landlord have options or rights granted, or to be granted, to Tenant under the right to xxx Tenant for any consequential, punitive or incidental damages terms of this Lease (including, without limitation, any claims for lost profits and/or lost business opportunityrights of renewal, rights to terminate, or rights of first refusal). If , and Landlord does accelerate may, in addition to its other remedies under this Lease, by notice to Tenant, increase the Rent, then the accelerated rent shall be security deposit required hereunder to an amount equal to six (6) months Base Rent (or, at Landlord’s option, a lesser period) such amount to be due and payable within ten (10) days after the Rent payable over the balance date of such notice.
(h) Pursuit of any of the Lease Term (as if this Lease had foregoing remedies shall not been terminated) less the fair rental value preclude Landlord from pursuing any other remedies therein or at law or in equity provided, nor shall pursuit of any remedy by Landlord constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damages accruing to Landlord by reason of Tenant’s violation of any of the Premises covenants and provisions of this Lease. Except for the corresponding period. The accelerated rent shall be discounted compulsory counterclaims, Tenant hereby waives any right to the date payable at an annual interest rate equal assert or maintain any counterclaims against Landlord in any action brought by Landlord to the prime rate as published from time to time in the Money Section obtain possession of the Wall Street JournalPremises. No act of Landlord (including, without limitation, acts of maintenance, efforts to relet the Premises, or if same is not published anymore then at the prime rate published any other actions taken by Citibank in Florida. Upon payment of the accelerated rent discounted Landlord or its agents to present value, Tenant shall be released from any and all further liability protect Landlord’s interests under this Lease) other than a written notice of termination, shall terminate this Lease. The acceptance of keys to the Premises by Landlord, its agents, employees, contractors or other persons on Landlord’s behalf shall not be deemed or constitute to effect a termination of this Lease unless such early termination is evidenced by a written instrument signed by Landlord. The receipt or acceptance of payments of Minimum Rent or Additional Rent by Landlord, its agents, employees, contractors or other persons on Landlord’s behalf after Landlord has elected to terminate this Lease or reenter as provided in this Article 16 shall not be deemed or constitute to effect a cure by Tenant of any default, but shall be deemed to be payment on account with respect to Tenant’s underlying obligations, and Landlord may accept such check without prejudice to any other rights or remedies which it may have against the Tenant.
Appears in 1 contract
Landlord’s Remedies Upon Default. Upon A. If the occurrence of an Event of Default by TenantTenant is in default under this Lease, then Landlord shall be entitled have all of the remedies provided for in such circumstances by Colorado law, including without limitation, the right to the following remedies:
(a) Terminate terminate this Lease by giving written notice of termination to Tenant, in which event Tenant shall immediately surrender the Leased Premises to Landlord. If Landlord and, if Tenant fails to so surrender the Premisesdo so, then Landlord may, without prejudice to any other remedy which it has may have for possession of the Premises or arrearages in rent or other damagesrent, re-enter upon and take possession of the Leased Premises without trespass and expel or remove evict Tenant and any other person who may be occupying the Leased Premises or any part thereof, by force if necessary, without being liable for any claim for damages therefore.
B. The parties agree that it is their intent that in accordance with applicable law; or
the event Tenant shall become a debtor in any voluntary or involuntary bankruptcy proceeding (ba “Proceeding”) Landlord may re-enter and take possession under the United States Bankruptcy Code, 11 U.S.C. 101, et seq. (the “Code”), for the purposes of proceeding under the Code, this Lease shall be treated as an unexpired lease of nonresidential real property under Section 365 of the Premises Code, 11 U.S.C. 365 (as may be amended), and, accordingly, shall be subject to the provisions of subsections (d)(3) and (d)(4) of said Section 365. Any person to which Xxxxxx’s rights, duties and obligations under this Lease are assigned pursuant to the provisions of the Code, shall be deemed without terminating further act to have assumed all of the obligations of Tenant arising under this Lease both before and after the date of such assignment. Any such assignee shall upon demand execute and deliver to Landlord an instrument confirming such assumption. Any monies or other considerations payable or otherwise to be delivered in accordance connection with applicable lawsuch assignment shall be paid to Landlord, shall be the exclusive property of Landlord, and relet the Premises and apply the Rent received to the account shall not constitute property of Tenant or of Tenant. In ’s estate within the event Landlord so re-enters and takes possession meaning of the Premises as set forth above, Code. Any monies or other considerations constituting Landlord’s property under the preceding sentence not paid or delivered to Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent held in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises trust for the corresponding period. The accelerated rent shall benefit of Landlord and be discounted promptly paid to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this LeaseLandlord.
Appears in 1 contract
Samples: Lease
Landlord’s Remedies Upon Default. Upon In the event of the occurrence of an Event of Default as defined by TenantSection 17.1, then Landlord shall be entitled may (but only during continuance of such Event of Default), subject to the following remediesprovisions of applicable law:
(a) Terminate this Lease by giving written notice of termination to TenantLease, in which event Tenant shall immediately surrender possession of the Premises to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damages, re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or.
(b) Landlord may re-enter and take Terminate Tenant’s right to possession of the Premises without terminating this Lease, in which event this Lease will continue in effect and Landlord shall have the Lease in accordance with applicable law, and right to collect Monthly Base Rental when due. Landlord may relet the Premises for the benefit of Tenant. Reletting can be for a period shorter or longer than the remaining Lease Term. Tenant shall pay to Landlord the Monthly Base Rental and apply additional rental hereunder on the Rent dates the same is due, less any rent and additional rent Landlord receives from any reletting. Tenant shall have no right to any rent received by Landlord from such reletting in excess of the Monthly Base Rental hereunder. No act by Landlord with respect to the Premises shall terminate this Lease, including but not limited to acceptance of the keys, institution of an action for detainer or other dispossessory proceedings; it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
(c) Landlord shall have the right, but not the obligation, to cure an Event of Default on behalf of and for the account of Tenant. In such event, Landlord’s costs and expenses incurred therein shall be paid for by Tenant forthwith as additional rent, upon demand therefor, with interest thereon from the event date Landlord so re-enters performs such work at the Default Rate.
(d) In any action to enforce its rights hereunder or in any litigation concerning this Lease, Landlord shall be entitled to collect court costs, reasonable attorneys’ fees and takes all costs of collection, including but not limited to costs of depositions and expert witnesses.
(e) A termination of this Lease by Landlord or the recovery of possession of the Premises as set forth aboveby Landlord or any voluntary or other surrender of this Lease by Tenant or a mutual cancellation thereof, Landlord agrees to use reasonable efforts to relet the Premises for shall not work a commercially reasonable rate merger and shall at the time option of such reletting. No reletting by Landlord, terminate all or any existing franchises or concessions, licenses, permits, subleases, subtenancies or the like between Tenant and any third party with respect to the Premises, or may, at the option of Landlord, operate as an assignment to Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless ’s interest in same.
(f) The rights given to Landlord so notifies Tenant in writing. Notwithstanding anything this Section 17.2 are cumulative and shall be in addition and supplemental to the contrary set forth hereinall other rights or remedies that Landlord may have hereunder, under laws then in force or in equity; provided, however, that (i) Landlord shall have no right to accelerate any Rent and (ii) in no event shall Tenant be liable to Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental exemplary damages (including, without limitation, which may be suffered or incurred by Landlord as the result of any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published default by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leasehereunder.
Appears in 1 contract
Landlord’s Remedies Upon Default. Upon the occurrence of an any Event of Default by TenantDefault, then Landlord shall be entitled to Landlord, at its option may pursue any one or more of the following remediesremedies without any notice or demand whatsoever except as provided herein:
(a) Terminate Landlord, at its option, may at once, or any time thereafter terminate this Lease by giving written notice of termination to Tenant, (except the Landlord may not terminate this Lease after the first monetary default by Tenant in which event any given Lease Year unless Tenant fails to cure such default after having been given notice of said default and five (5) days to cure such default) whereupon this Lease shall immediately end concurrently with the receipt by Tenant of such notice, TENANT HEREBY EXPRESSLY WAIVING ANY NOTICE TO QUIT PROVIDED BY CURRENT OR FUTURE LAW. Upon such termination by Landlord, Tenant will at once surrender possession of the Premises to LandlordLandlord and remove all of Tenant's effects therefrom, and Landlord may re-enter the Premises and repossess it, and remove all persons and effects there from, without being guilty of trespass, forcible entry, detainer or other tort. If Notwithstanding any termination of this Lease pursuant to this Section 24(a), Tenant fails to so surrender shall remain liable for the Premises, then Rent as hereinafter provided.
(b) Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damagesterminating this Lease, re-enter upon and take possession of the Premises without trespass and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, without being liable for prosecution or any claim for damages therefore, and, if Landlord so elects, make such alterations and repairs, as, in accordance Landlord's sole judgment, may be necessary to re-let the Premises, and relet such space or any part thereof, on Tenant's behalf, for such rent and for such period of time and subject to such terms and conditions as Landlord may deem advisable and receive the rent therefore. Upon each such re-letting, all rent received by Landlord from such re-letting shall be applied first to the payment of any loss or expense of such re-letting, including brokerage fees, reasonable attorneys' fees and the cost of such alterations and repairs; second, to the payment of any indebtedness other than Rent due hereunder from Tenant to Landlord, including interest thereon; third, to the payment of Rent due and unpaid hereunder, together with applicable interest thereon as herein provided; and the residue, if any, shall be held by Landlord and applied in payment of future Rent as the same may become due and payable hereunder. Tenant agrees to pay to Landlord, within fourteen (14) days of demand, any deficiency that may arise by reason of such re-letting. Notwithstanding any such re-letting without termination, Landlord may at any time thereafter elect to terminate this Lease for such prior Event of Default. Landlord shall in no event be liable in any way whatsoever for its failure or refusal to re-let the Premises or any part thereof, or, in the event that the Premises are re-let, for its failure to collect the rent under such re-letting, and no such refusal or failure to re-let or failure to collect rent shall release or affect Tenant's liability for damages or otherwise under this Lease. No re-entry by Landlord, and no acceptance by Landlord of keys from Tenant, shall be considered an acceptance of a surrender of this Lease. Tenant hereby waives any right of redemption it may have under the law; or.
(bc) In the event Landlord may re-enter and take possession of the Premises without terminating the terminates this Lease in accordance with applicable lawthe provisions of this Section 24, Landlord may, in addition to any other remedy it may have, recover from Tenant all damages and relet the Premises and apply the Rent received to the account of Tenant. In the event reasonable, actual, out-of-pocket expenses Landlord so re-enters and takes possession may suffer or incur by reason of the Premises as set forth aboveEvent of Default hereunder, Landlord agrees to use including, without limitation, the cost of recovering the Premises, reasonable efforts to relet attorneys' fees and either (i) the Premises for a commercially reasonable rate worth at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender termination of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to excess if any, of the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment amount of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal charges equivalent to the Rent payable reserved in this Lease for the remainder of the stated term over the balance of the Lease Term (as if this Lease had not been terminated) less the fair then reasonable rental value of the Premises for the corresponding period. The accelerated remainder of the stated term, or (ii) the excess of the Rent reserved hereunder above the amount of rent collected upon re-letting the Premises, all of which sums shall become immediately due and payable by Tenant to Landlord within fourteen (14) days of demand.
(d) Landlord may, but shall not be discounted obligated to, cure, without notice (unless expressly provided herein to the contrary), any Events of Default by Tenant under this Lease, and Tenant shall pay to Landlord, as Additional Rent, within fourteen (14) days of presentation of Landlord's invoice therefore, all actual, out-of-packet costs and expenses incurred by Landlord in curing such Events of Default, including, without limitation, court costs and attorneys' fees and disbursements in connection therewith, together with interest on the amount of costs and expenses so incurred at the rate specified in Section 24(a) hereof; provided, that Landlord shall not be liable to Tenant for any loss, injury or damage caused by acts of the Landlord in remedying or attempting to remedy any such Event of Default. Tenant shall, in addition, pay to Landlord upon presentation of Landlord's invoice therefore, such actual, out-of-pocket expenses (regardless of whether or not suit is filed) as Landlord may incur (including, without limitation, court costs and attorneys' fees and disbursements) in enforcing the performance of any obligation of Tenant under this Lease. Any reservation of a right by Landlord to enter upon the Premises and to make or perform any repairs, alterations, or other work in, to, or about the Premises which, in the first instance, is the Tenant's obligation pursuant to the Lease, shall not be deemed to: (i) impose any obligation on Landlord to do so; (ii) render Landlord liable to Tenant or any third party for the failure to do so; or (iii) relieve Tenant from any obligation to indemnify Landlord as otherwise provided elsewhere in the Lease.
(e) For each payment of Rent (or portion thereof) which is not paid within seven (7) days after the due date payable at an annual interest rate thereof, Tenant shall pay a late charge equal to the prime rate greater of (i) $100.00 or (ii) five percent (5%) of such installment of Rent (or portion thereof). It is hereby acknowledged by Landlord and Tenant that this charge represents the parties' reasonable estimate as published from time to time in the Money Section of the Wall Street Journaldate hereof of the extra expenses that Landlord will incur in processing delinquent payments of Rent, or if same is the exact amount of such charges being difficult to ascertain, and such late charge shall not published anymore then at be considered interest. Payment of the prime rate published by Citibank in Florida. Upon foregoing late charge shall not be deemed to excuse the untimely payment of Rent by Tenant. Notwithstanding the accelerated rent discounted to present valueforegoing, Tenant shall not be released from assessed a late charge for any one late Rent payment within each Lease Year.
(f) [Intentionally omitted].
(g) Any suit brought to collect the amount of any deficiency in Rent for any month shall not prejudice in any way the rights of Landlord to collect the deficiency for any subsequent month by a similar proceeding. Landlord may, in Landlord's sole discretion, choose to defer collection of such amounts until the date upon which the Term expires or would have expired but for such sooner termination, and all further liability under this LeaseTenant hereby agrees that in such event Landlord's cause of action shall be deemed to have accrued as of the date upon which the Term expires or would have expired but for such sooner termination, as the case may be.
Appears in 1 contract
Samples: Deed of Lease (Identix Inc)
Landlord’s Remedies Upon Default. a. Upon the occurrence of any Event of Default, Landlord shall have the option to pursue any one or more of the following remedies without notice or demand whatsoever, in addition to, or in lieu of, any and all remedies available to Landlord under the laws of the state in which the Improvements are located:
i. Landlord may give Tenant written notice of its election to terminate this Lease, effective on the date specified therein, whereupon Tenant's right to possession of the Premises shall cease and this Lease, except as to Tenant's liability determined in accordance with this Lease, shall be terminated.
ii. Landlord and its agents may immediately re-enter and take possession of the Premises, or any part thereof, either by summary proceedings, or by any other applicable action or proceeding, or by force or otherwise (without being liable for indictment, prosecution or damages therefor) and may repossess same as Landlord's former estate and expel Tenant and those claiming through or under Tenant, and remove the effects of both or either, without being deemed guilty in any manner of trespass, and without prejudice to any remedies for arrears of Rent or Tenant's breach of covenants or conditions.
iii. Should Landlord elect to re-enter as provided hereinabove or should Landlord take possession pursuant to legal proceedings or pursuant to any notice provided by law, Landlord may, from time to time, without terminating this Lease, relet the Premises or any part thereof in Landlord's or Tenant's name, but for the account of Tenant, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the Term) and on such terms and conditions (which may include concessions of free rent and alteration, repair and improvement of the Premises) as Landlord, in its sole discretion, may determine, and Landlord may collect and receive the rents therefor without relieving Tenant of any liability under this Lease or otherwise affecting any such liability. Landlord shall have no obligation to relet the Premises or any part thereof and shall in no event be liable for failure to relet the Premises or any part thereof, or, in the event of any such reletting, for refusal or failure to collect any rent due upon such reletting, and no such refusal or failure shall operate to relieve Tenant of any liability under this Lease or otherwise to affect any such liability. No such re-entry or taking possession of the Premises by Landlord shall be construed as an election on Landlord's part to terminate this Lease unless a written notice of such intention be given to Tenant. No notice from Landlord hereunder or under a forcible entry and detainer statute or similar law shall constitute an election by Landlord to terminate this Lease unless such notice specifically so states. Landlord reserves the right following any such re-entry and/or reletting to exercise its right to terminate this Lease by giving Tenant written notice thereof, in which event this Lease will terminate as specified in said notice.
b. Tenant, on its own behalf and on behalf of all persons claiming through or under Tenant, including all creditors, does further hereby waive any and all rights which Tenant and all such persons might otherwise have under any present or future law to redeem the Premises, or to re-enter or repossess the Premises, or to restore the operation of this Lease following an Event of Default and, after (i) Tenant shall have been dispossessed by a judgment or by warrant of any court or judge, or (ii) any re-entry by Landlord, or (iii) any expiration or termination of this Lease and the Term, whether such dispossess, re-entry, expiration or termination shall be by operation of law or pursuant to the provisions of this Lease. The words "re-enter", "re-entry" and "re-entered" as used in this Lease shall not be deemed to be restricted to their technical legal meanings. In the event of a breach or threatened breach by Tenant, or any persons claiming through or under Tenant, of any term, covenant or condition of this Lease on Tenant's part to be observed or performed, Landlord shall have the right to enjoin such breach and the right to invoke any other remedy allowed by law or in equity as if re-entry, summary proceedings and other special remedies were not provided in this Lease for such breach.
i. If this Lease is terminated by Landlord upon an Event of Default, Tenant shall remain liable to Landlord for damages in an amount equal to the Base Rent and any other sums due hereunder ("Additional Rent") as of the date of termination of this Lease plus the Base Rent and any Additional Rent which would have been owing by Tenant for the balance of the Term (collectively, the "Aggregate Gross Rent") had this Lease not been terminated, less the net proceeds, if any, received as a result of any reletting of the Premises by Landlord subsequent to such termination, after deducting all of Landlord's expenses including, without limitation, all repossession costs, brokerage commissions, legal expenses, attorneys' fees, expenses of employees, alteration and repair costs and expenses of preparation for such reletting (collectively, the "Reletting Costs"). Landlord shall be entitled to collect Base Rent, any Additional Rent and all other damages from Tenant monthly on the days on which Base Rent and any Additional Rent would have been payable hereunder if this Lease had not been terminated. Alternatively, at the option of Landlord, in the event this Lease is so terminated, Landlord shall be entitled to recover forthwith against Tenant, as liquidated damages and not as a penalty, the then present value of the Aggregate Gross Rent and Reletting Costs less the aggregate rental value of the Premises for what otherwise would have been the unexpired balance of the Term. If Landlord relets the Premises, the amount of rent and other sums payable by the tenant thereunder shall be deemed prima facie to be the rental value for the Premises (or the portion thereof so relet) for the term of such reletting. Tenant shall in no event be entitled to any rents collected or payable in respect of any reletting, whether or not such rents shall exceed the Base Rent and any Additional Rent reserved in this Lease. Tenant shall bear the burden of proof in any proceeding to determine the "rental value" for purposes of the above calculation.
ii. If Landlord does not elect to terminate this Lease, but takes possession, Tenant shall pay to Landlord the Base Rent, Additional Rent and Reletting Costs which would be payable hereunder if such repossession had not occurred, less the proceeds received by Landlord, if any, of any reletting of the Premises by Landlord. Tenant shall pay Base Rent and all Additional Rent due to Landlord, monthly, on the days on which Base Rent would have been payable hereunder if possession had not been retaken.
i. This Lease shall continue in effect for so long as Landlord does not expressly terminate it, and Landlord may enforce all its rights and remedies under this Lease, including the right to recover the Base Rent and any Additional Rent, as the same become due under this Lease. Acts of maintenance or preservation or efforts to relet the Premises or the appointment of a receiver upon the initiative of Landlord to protect Landlord's interest under this Lease shall not constitute a termination of Tenant's rights to possession unless Landlord shall have specifically elected to terminate this Lease.
ii. No payments of money by Tenant to Landlord after the expiration or other termination of this Lease after the giving of any notice by Landlord to Tenant shall reinstate or extend the Term, or make ineffective any notice given to Tenant prior to the payment of such money. Landlord may receive and collect any sums due under this Lease, and the payment thereof shall not make ineffective any notice, or in any manner affect any pending suit or any judgment theretofore obtained.
e. Upon the occurrence of an Event of Default by Tenantall rights of and/or option of first offer, then Landlord refusal, purchase, expansion or extension granted to Tenant pursuant to Sections 27-30 shall be entitled to the following remedies:
(a) Terminate this Lease by giving written notice of termination to Tenant, in which event terminate and Tenant shall immediately surrender execute a Quit Claim Deed of the Premises to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to transferring any other remedy it has for possession of the Premises or arrearages in rent or other damages, re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance all of Tenant's surrender of the Premises unless Landlord so notifies Tenant right, title, and interest in writing. Notwithstanding anything and to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this LeasePremises.
Appears in 1 contract
Samples: Lease Agreement (Quantum Corp /De/)
Landlord’s Remedies Upon Default. Tenant shall be in default under this Lease if Tenant (i) fails to pay any Installment of Base Rent, Additional Rent or other charges or money obligation to be paid by Tenant hereunder within five (5) days after the same shall become due (all of which monetary obligations of Tenant shall bear interest at the highest rate allowable by law, not to exceed 18% per annum from the date due until paid); or (ii) defaults in the performance of any of the covenants, terms or provisions of this Lease (other than the payment, when due, of any of Tenant’s monetary obligations hereunder) or any of the Rules and Regulations now or hereafter established by Landlord to govern the operation of this Building and fails to cure such default within twenty (20) days after written notice thereof from Landlord; provided, however, that solely with respect to non-monetary defaults which cannot with due diligence be cured within such 20-day period, if, within such 20-day period, Tenant commences and thereafter diligently pursues the cure of any such non-monetary default, Tenant shall be granted an additional reasonable period of time to effect a cure, but in no event later than sixty (60) days after the date Tenant commences to cure the default; or (iii) abandons the Premises or fails to keep the Premises continuously and uninterruptedly open for business; or (iv) files a voluntary petition in bankruptcy, or any similar petition seeking relief under any present or future federal, or other bankruptcy or insolvency statue or law; or if a proceeding under any present or future federal, state or other bankruptcy or insolvency statute or law shall be filed against Tenant or any asset of Tenant, and such proceeding shall not have been dismissed or vacated within ninety (90) days of the date of such filing; or (v) makes an assignment for the benefit of its creditors. Upon the occurrence of an Event any of Default by Tenantthe above events, then Landlord shall be entitled to Landlord, at its option, may pursue any one or more of the following remediesremedies without any notice or demand whatsoever:
(a) Terminate Landlord, at its option, may at once, or at any time thereafter, terminate this Lease by giving written notice of termination to Tenant, in which event whereupon this Lease shall end. Upon such termination by Landlord, Tenant shall immediately will at once surrender possession of the Premises to Landlord and remove all of Tenants’s effects therefrom, and Landlord may forthwith re-enter the Premises and repossess itself thereof, and remove all persons and effects therefrom, in accordance with law; provided, however, Landlord agrees that it will not breach the peace in the exercise of its rights herein. Notwithstanding the foregoing to the contrary, solely with respect to monetary defaults as provided in clause (i) above, Landlord agrees that it shall not exercise its right of re-entry as provided herein without a court order, unless Tenant has failed to cure said monetary default within five (5) days’ after receipt of written notice from Landlord. If Tenant fails to so surrender the Premises, then .
(b) Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damagesterminating this Lease, re-enter upon and take possession of the Premises without trespass and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, without being liable for prosecution or any claim for damages therefor and, if Landlord so elects, make such alterations and repairs as, in accordance with applicable law; or
(b) Landlord Landlord’s judgement, may re-enter and take possession of be necessary to relet the Premises without terminating the Lease in accordance with applicable lawPremises, and relet the Premises or any part thereof for such rent and apply for such period of time and subject to such terms and conditions as Landlord may deem advisable and receive the Rent received rent therefor; provided, however, Landlord agrees that it will not breach the peace in the exercise of its right herein. Notwithstanding the foregoing to the account contrary, solely with respect to monetary defaults as provided in clause (i) above, Landlord agrees that it shall not exercise its right of Tenantre-entry as provided herein without a court order, unless Tenant has failed to cure said monetary default within five (5) days’ after receipt of written notice from Landlord. Upon each such reletting, the rent received by Landlord in respect of such resetting shall be applied first to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord, including interest thereon; second, to the payment of any loss and expenses of such reletting, including brokerage fees, attorneys’ fees and the cost of such alterations and repair; third, to the payment of rent due and unpaid hereunder, together with interest thereon as herein provided; and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. Tenant agrees to pay to Landlord, on demand, any deficiency that may arise by reason of such reletting. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such prior default.
(c) In the event Landlord so shall re-enters enter the Premises and/or terminate this Lease in accordance with the provisions of this Article 16, Landlord may, in addition to any other remedy it may have, recover from Tenant all damages and takes possession expenses Landlord may suffer or incur by reason of Tenant’s default hereunder, including without limitation , the cost of recovering the Premises and reasonable attorney fees. Tenant agrees that actual damages to Landlord resulting from Landlord’s exercise of the remedies set forth in paragraphs (a) or (b) above, will be difficult to ascertain, and therefore, after a default of Tenant hereunder, Tenant shall also pay to Landlord “Liquidated Damages” for the failure of Tenant to observe and perform the covenants of this Lease, which at the election of Landlord, shall be either: (A) (x) the sum of (i) the minimum monthly rent, plus (ii) the Additional Rent payable hereunder for the month immediately preceding such failure to operate, re-entry or termination, less (z) the net amount, if any, of the rents collected on account of the lease or leases of the Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease, all of which sums shall become due and payable by Tenant to Landlord upon the first day of each calendar month during the otherwise unexpired portion of the term hereof; or (B) the whole of said Liquidated Damages calculated under clause (A) multiplied by the number of months then remaining in the lease term, discounted to present value at a rate of six percent (6%) per annum as set forth aboveof the date of termination or re-entry by Landlord; provided, however, that in the event Landlord agrees to use reasonable efforts to shall relet the Premises for a commercially reasonable rate at and the time rent received by Landlord in respect of such reletting. No reletting together with the discounted Liquidated Damages paid by Tenant, less the costs and expenses incurred by Landlord is considered in such reletting, shall exceed the rent reserved hereunder for that period which would otherwise have constituted the remainder of the term hereof, then Landlord shall, upon the expiration of the period which would have constituted the term of this Lease, refund to Tenant the lesser of the amount of such excess or the discounted Liquidated Damages theretofore paid by Tenant.
(d) If the rent agreed to be paid, including all other sums of money which under the provisions hereto are declared to be rent, shall be in arrears in whole or in part for Landlord's own account unless five (5) or more days, Landlord has notified may at its option (if such arrearage remains unpaid after ten (10) days’ written notice to Tenant) declare the tenancy hereunder converted into a tenancy from month to month, and upon giving written notice to Tenant of the exercise of such option, Landlord shall forthwith be entitled to all provisions of law relating to the summary eviction of monthly tenants in writing default in rent.
(e) Anything in this Lease to the contrary notwithstanding, in order to cover the extra expense involved in handling delinquent payments, Tenant shall pay a “late charge” in an amount equal to the greater of (i) 5% of any delinquent payment, or (ii) $250.00, when any installment of Base Rent (or any other amount as may be considered Additional Rental under this Lease) is paid more than five (5) days after the due date thereof. It is hereby understood that this charge is for extra expenses incurred by the Landlord in processing the delinquency.
(f) Tenant hereby appoints as its agent to receive service of all dispossessory or other proceedings and notices thereunder and under this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender the person apparently in charge of the Premises unless Landlord so notifies at the time, and if no person then appears to be in charge of the Premises, then such service or notice may be made by attaching the same to the main entrance of the Premises, provided that, in such later event, a copy of any such proceedings or notice shall also be mailed to Tenant in writing. Notwithstanding anything to the contrary manner set forth herein, in no event shall Landlord have the right to accelerate Rent Article 33 hereof.
(unless g) Tenant shall be considered in “Habitual Default” of this Lease upon (i) Tenant’s failure, on two (2) or more than ninety occasions during any Lease Year, to pay, when due, any installment of Base Rent, Additional Rent, or any other sum required by the terms of this Lease, or (90ii) days delinquent in Tenant’s repeated (on three (3) or more occasions) violation of, or failure to comply with, any term covenant or condition of this Lease after written notice of such violation or failure to comply has been given by Landlord to Tenant. Upon the payment occurrence of Rent or such other amounts payablean event of Habitual Default on the part of Tenant, after expiration of notice Tenant shall immediately be deemed to have released any and all cure periods hereunder). In no event shall Landlord have options or rights granted, or to be granted, to Tenant under the right to xxx Tenant for any consequential, punitive or incidental damages terms of this Lease (including, without limitation, rights of renewal, rights to terminate, or rights of first refusal).
(h) Pursuit of any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had foregoing remedies shall not been terminated) less the fair rental value preclude Landlord from pursuing any other remedies therein or at law or in equity provided, nor shall pursuit of any remedy by Landlord constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damages accruing to Landlord by reason of Tenant’s violation of any of the Premises for the corresponding periodcovenants and provisions of this Lease. The accelerated rent shall be discounted Tenant hereby waives any right to the date payable at an annual interest rate equal assert or maintain any non-compulsory counterclaims against Landlord in any action brought by Landlord to the prime rate as published from time to time in the Money Section obtain possession of the Wall Street JournalPremises. No act of Landlord (including, without limitation, acts of maintenance, efforts to relet the Premises, or if same is not published anymore then at the prime rate published any other actions taken by Citibank in Florida. Upon payment of the accelerated rent discounted Landlord or its agents to present value, Tenant shall be released from any and all further liability protect Landlord’s interests under this Lease) other than a written notice of termination, shall terminate this Lease. The acceptance of keys to the Premises by Landlord, its agents, employees, contractors or other persons on Landlord’s behalf shall not be deemed or constitute to effect a termination of this Lease unless such early termination is evidenced by a written instrument signed by Landlord.
Appears in 1 contract
Samples: Lease (Seracare Life Sciences Inc)
Landlord’s Remedies Upon Default. Upon the occurrence of an Event of Default by Tenant, then Landlord shall be entitled to the following remedies:
(a) Terminate this Lease by giving written notice of termination to Tenant, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damages, re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters Tenant defaults under the terms and takes possession conditions of the Premises this Lease, as set forth above, Landlord, at its option, shall have the immediate right to enter and remove all persons and property from the Demised Premises and such property may be removed and stored in a warehouse or elsewhere at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. Should Landlord agrees elect to use reasonable efforts re-enter as herein provided, or should Landlord take possession of the Demised Premises pursuant to legal proceedings. Landlord may either terminate this Lease or may, from time to time without terminating this Lease, make such alterations, improvements and repairs to the Demised Premises as may be necessary in order to relet the Demised Premises, and may relet the Demised Premises or any part thereof for such term or terms (which may be for a commercially term extending beyond the Term) and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and upon each such reletting all monies received by Landlord from such reletting shall be applied, first, to the payment of any indebtedness other than Tenant Payments due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting, including brokerage fees and attorneys fees and costs of such alterations, improvements and repairs: third, to the payment of any Tenant Payments due and unpaid hereunder and the residue, if any, shall be held by Landlord and applied towards the payment of future Tenant Payments due hereunder as the same may become due and payable hereunder. In no event shall Tenant have any right to any monies received by Landlord from any reletting other than to have such monies applied towards the indebtedness of Tenant to Landlord as aforesaid, and to the extent such monies exceed any indebtedness of Tenant, same shall be the sole property of Landlord. If such rentals and other monies received from such reletting during any month is less than the Tenant Payments to be paid during that month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such deficiency shall be calculated and paid monthly. No such retry or taking of possession of the Demised Premises by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of such intention is given to Tenant by Landlord. Notwithstanding any such reletting without termination. Landlord may at any time thereafter elect to terminate this Lease for such previous default by written notice to Tenant. Should Landlord at any time terminate this Lease for any default, in addition to any other remedies it may have, it may recover from tenant all damages incurred by reason of such breach, including the cost of recovering and reletting the Demised Premises as referred to above, reasonable rate attorneys fees and including the worth at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified termination of the excess, if any of the amount of all Tenant Payments reserved in writing that this Lease has been terminatedfor the remainder of the Term, over the then reasonable rental value of the Demised Premises for the remainder of the Term, all of which amount shall be immediately due and payable from Tenant to Landlord, or Landlord may retain Tenant’s Security Deposit as liquidated damages. In additionany event, no such reletting this paragraph shall not be deemed to require Landlord to re-enter the Demised Premises upon default by Tenant, but Landlord may, at its option, do nothing with respect to the Demised Premises and hold Tenant responsible for all Tenant Payments due Landlord as and when same accrue, from time to time thereafter. In addition to the foregoing, if Tenant’s possession of the Demised Premises is terminated due to be considered an acceptance a monetary default of Tenant's surrender of the Premises unless , then Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord will have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Tenant Payment installments remaining due throughout the Term (as if this Lease had upon written notice to Tenant, whereupon same shall become due and payable immediately. However, Landlord may, at its option, not been terminated) less the fair rental value pursue any of the Premises for the corresponding period. The accelerated rent shall be discounted remedies aforementioned and may avail itself of any other remedies available to the date payable at an annual interest rate equal to the prime rate Landlord as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published provided by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leaselaw.
Appears in 1 contract
Samples: Office/Distribution Building Lease (Home Diagnostics Inc)
Landlord’s Remedies Upon Default. Tenant shall be in default under this Lease if Tenant (i) fails to pay any installment of Base Rent, Additional Rent or other charges or money obligation to be paid by Tenant hereunder within five (5) days after the same shall become due (all of which monetary obligations of Tenant shall bear interest at the highest rate allowable by law, not to exceed, on a per annum basis, 5% over the prime rate as listed in The Wall Street Journal at the time of such default from the date due until paid); or (ii) defaults in the performance of any of the covenants, terms or provisions of this Lease (other than the payment, when due, of any of Tenant’s monetary obligations hereunder) or any of the Rules and Regulations now or hereafter established by Landlord to govern the operation of this Building and fails to cure such default within thirty (30) days after written notice thereof from Landlord provided, however, that solely with respect to non-monetary defaults, which cannot with due diligence and commercially reasonable efforts, be cured within such thirty (30) day period, if within such thirty (30) day period, Tenant commences and thereafter diligently pursues the cure of any such non-monetary default, Tenant shall be granted an additional reasonable period of time to effectuate a cure; or (iii) abandons the Premises or fails to keep the Premises continuously and uninterruptedly open for business; or (iv) files a voluntary petition in bankruptcy, or any similar petition seeking relief under any present or future federal, or other bankruptcy or insolvency statue or law; or if a proceeding under any present or future federal, state or other bankruptcy or insolvency statute or law shall be filed against Tenant or any asset of Tenant, and such proceeding shall not have been dismissed or vacated within sixty (60) days of the date of such filing; or (v) makes an assignment for the benefit of its creditors. Upon the occurrence of an Event any of Default by Tenantthe above events, then Landlord shall be entitled to Landlord, at its option, may pursue any one or more of the following remediesremedies without any notice or demand whatsoever:
(a) Terminate Landlord, at its option, may at once, or at any time thereafter, terminate this Lease by giving written notice of termination to Tenant, in which event whereupon this Lease shall end. Upon such termination by Landlord, Tenant shall immediately will at once surrender possession of the Premises to Landlord. If Tenant fails to so surrender Landlord and remove all of Tenants’ effects therefrom, and Landlord may forthwith re-enter the PremisesPremises and repossess itself thereof, then and remove all persons and effects therefrom, using such force as may be necessary (provided Landlord does not breach the peace), without being guilty of trespass, forcible entry, detainer or other tort.
(b) Landlord may, without prejudice to any other remedy it has for possession of terminating this Lease, and without breaching the Premises or arrearages in rent or other damagespeace, re-enter upon and take possession of the Premises without trespass and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, without being liable for prosecution or any claim for damages therefor, and, if Landlord so elects, make such alterations and repairs as, in accordance with applicable law; or
(b) Landlord Landlord’s judgement, may re-enter and take possession of be necessary to relet the Premises without terminating the Lease in accordance with applicable lawPremises, and relet the Premises or any part thereof for such rent and apply for such period of time and subject to such terms and conditions as Landlord may deem advisable and receive the Rent rent therefor. Upon each such reletting, the rent received by Landlord in respect of such reletting shall be applied first to the account payment of Tenantany indebtedness other than rent due hereunder from Tenant to Landlord, including interest thereon; second, to the payment of any loss and expenses of such reletting, including brokerage fees, attorneys’ fees and the cost of such alterations and repair; third, to the payment of rent due and unpaid hereunder, together with interest thereon as herein provided; and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. Tenant agrees to pay to Landlord, on demand, any deficiency that may arise by reason of such reletting. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such prior default.
(c) In the event Landlord so shall re-enters enter the Premises and/or terminate this Lease in accordance with the provisions of this Article 16, Landlord may, in addition to any other remedy it may have, recover from Tenant all damages and takes possession expenses Landlord may suffer or incur by reason of Tenant’s default hereunder, including without limitation, the cost of recovering the Premises and reasonable attorney fees. Tenant agrees that actual damages to Landlord resulting from Landlord’s exercise of the remedies set forth in paragraphs (a) or (b) above, will be difficult to ascertain, and therefore, after a default of Tenant hereunder, Tenant shall also pay to Landlord “Liquidated Damages” for the failure of Tenant to observe and perform the covenants of this Lease, which at the election of Landlord, shall be either: (A) (x) the sum of (i) the minimum monthly rent, plus (ii) the Additional Rent payable hereunder for the month immediately preceding such failure to operate, re-entry or termination, less (z) the net amount, if any, of the rents collected on account of the lease or leases of the Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease, all of which sums shall become due and payable by Tenant to Landlord upon the first day of each calendar month during the otherwise unexpired portion of the term hereof; or (B) the whole of said Liquidated Damages calculated under clause (A) multiplied by the number of months then remaining in the lease term, discounted to present value at a rate of six percent (6%) per annum as set forth aboveof the date of termination or re-entry by Landlord; provided, however, that in the event Landlord agrees to use reasonable efforts to shall relet the Premises for a commercially reasonable rate at and the time rent received by Landlord in respect of such reletting. No reletting together with the discounted Liquidated Damages paid by Tenant, less the costs and expenses incurred by Landlord is considered in such reletting, shall exceed the rent reserved hereunder for that period which would otherwise have constituted the remainder of the term hereof, then Landlord shall, upon the expiration of the period which would have constituted the term of this Lease, refund to Tenant the lesser of the amount of such excess or the discounted Liquidated Damages theretofore paid by Tenant.
(d) If the rent agreed to be paid, including all other sums of money which under the provisions hereto are declared to be rent, shall be in arrears in whole or in part for five (5) or more days, Landlord may at its option (if such arrearage remains unpaid after ten (10) days’ written notice to Tenant) declare the tenancy hereunder converted into a tenancy from month to month, and upon giving written notice to Tenant of the exercise of such option, Landlord shall forthwith be entitled to all provisions of law relating to the summary eviction of monthly tenants in default in rent. In addition to all other remedies provided for in this Article 16, in order to secure Tenant’s obligations under this Lease, Landlord shall have a security interest in all tangible personal property of Tenant on or about the Premises to the extent of all monies owed by Tenant to Landlord's own account unless , including but not limited to, inventory, furniture, trade fixtures, equipment, etc., and all such property shall, at Landlord’s option, become the property of Landlord has notified in the event Tenant fails to cure a default under this Lease within any period for notice and cure provided for herein. Tenant agrees, upon the request of Landlord, to execute any and all documents which Landlord deems necessary or desirable in order to perfect such security interest, including but not limited to, a U.C.C.-1 financing statement and a security agreement and to pay all costs, taxes or fees incurred in recording or filing any such documents. Landlord will, upon receipt of written request from Tenant, execute an agreement, on Landlord’s form, subordinating any Landlord liens it may have on Tenant’s inventory, trade fixtures and other personal property as a result of this Lease to a lien on such personal property held by any bona fide, third party lender; provided, however, that, notwithstanding anything herein contained or any decision of any court to the contrary, the term “trade fixtures” shall not include any air conditioning, heating, lighting, electrical and plumbing equipment installed by Tenant in writing the Premises, nor any wiring or other apparatus related thereto.
(e) Anything in this Lease to the contrary notwithstanding, in order to cover the extra expense involved in handling delinquent payments, Tenant shall pay a “late charge” in an amount equal to the greater of (i) 5% of any delinquent payment, or (ii) $250.00, when any installment of Base Rent (or any other amount as may be considered Additional Rental under this Lease) is paid more than five (5) days after the due date thereof. It is hereby understood that this charge is for extra expenses incurred by the Landlord in processing the delinquency.
(f) Tenant hereby appoints as its agent to receive service of all dispossessory or other proceedings and notices thereunder and under this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender the person apparently in charge of the Premises unless Landlord so notifies at the time, and if no person then appears to be in charge of the Premises, then such service or notice may be made by attaching the same to the main entrance of the Premises, provided that, in such later event, a copy of any such proceedings or notice shall also be mailed to Tenant in writing. Notwithstanding anything to the contrary manner set forth herein, in no event shall Landlord have the right to accelerate Rent Article 33 hereof.
(unless g) Tenant shall be considered in “Habitual Default” of this Lease upon (i) Tenant’s failure, on two (2) or more than ninety occasions during any Lease Year, to pay, when due, any installment of Base Rent, Additional Rent, or any other sum required by the terms of this Lease, or (90ii) days delinquent in Tenant’s violation of, or failure to comply with, on two (2) or more occasions, any term covenant or condition of this Lease after written notice of such violation or failure to comply has been given by Landlord to Tenant. Upon the payment occurrence of Rent or such other amounts payablean event of Habitual Default on the part of Tenant, after expiration of notice Tenant shall immediately be deemed to have released any and all cure periods hereunder). In no event shall Landlord have options or rights granted, or to be granted, to Tenant under the right to xxx Tenant for any consequential, punitive or incidental damages terms of this Lease (including, without limitation, any claims for lost profits and/or lost business opportunityrights of renewal, rights to terminate, or rights of first refusal). If , and Landlord does accelerate may, in addition to its other remedies under this Lease, by notice to Tenant, increase the Rent, then the accelerated rent shall be security deposit required hereunder to an amount equal to six (6) months Base Rent (or, at Landlord’s option, a lesser period) such amount to be due and payable within ten (10) days after the Rent payable over the balance date of such notice.
(h) Pursuit of any of the Lease Term (as if this Lease had foregoing remedies shall not been terminated) less the fair rental value preclude Landlord from pursuing any other remedies therein or at law or in equity provided, nor shall pursuit of any remedy by Landlord constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damages accruing to Landlord by reason of Tenant’s violation of any of the Premises for the corresponding periodcovenants and provisions of this Lease. The accelerated rent shall be discounted Tenant hereby waives any right to the date payable at an annual interest rate equal assert or maintain any non-compulsory counterclaims against Landlord in any action brought by Landlord to the prime rate as published from time to time in the Money Section obtain possession of the Wall Street JournalPremises. No act of Landlord (including, without limitation, acts of maintenance, efforts to relet the Premises, or if same is not published anymore then at the prime rate published any other actions taken by Citibank in Florida. Upon payment of the accelerated rent discounted Landlord or its agents to present value, Tenant shall be released from any and all further liability protect Landlord’s interests under this Lease) other than a written notice of termination, shall terminate this Lease. The acceptance of keys to the Premises by Landlord, its agents, employees, contractors or other persons on Landlord’s behalf shall not be deemed or constitute to effect a termination of this Lease unless such early termination is evidenced by a written instrument signed by Landlord.
Appears in 1 contract
Samples: Flex Space Office Lease (Panacos Pharmaceuticals, Inc.)
Landlord’s Remedies Upon Default. Upon In the occurrence event that Tenant fails to pay any rent or other charges due hereunder within ten (10) days after notice from Landlord that the same is due; or fails to perform any of an Event Tenant's obligations under the terms, conditions, or covenants of Default by Tenant, then Landlord shall be entitled to the following remedies:
(a) Terminate this Lease by giving for more than thirty (30) days after receipt of written notice of termination to Tenantsuch failure or if such failure shall be of such nature that the same cannot be reasonable cured or remedied within such thirty (30) day period, in which event Tenant shall immediately surrender not in good faith have commenced the curing or remedying of such failure within such thirty (30) day period and thereafter diligently proceed therewith to completion; or if the Tenant shall abandon the Leased Premises; or if this Lease or the estate created hereby, shall be taken in execution or by other process of law; or if the Tenant shall be adjudicated insolvent or bankrupt pursuant to the provisions of any state or federal insolvency or bankruptcy act; or if a receiver or Trustee or the property of the Tenant shall be appointed by reason of the Tenant's insolvency and inability to pay debts; or if any assignment shall be made of the Tenant's property for the benefit of the creditors,(all of the foregoing being events of default), then and in any such event, the Landlord, besides other rights or remedies it may have, shall have the immediate right to re-enter the Leased Premises and to Landlordremove all persons and property there from without notice or resort to legal process and without being deemed guilty of trespass or become liable for any loss or damage which may be occasioned thereby. If Tenant fails shall fail to so surrender pay the Premises, then Landlord may, without prejudice to rent or any other remedy it has for possession charges within Ten (10) days after same becomes due and payable, such unpaid amounts shall bear interest from the due date at FOUR percent (4.00%) above the prime interest rate of the Premises CitiBank or arrearages in rent or other damages, re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder)its successor. In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published payable by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leaseexceed eighteen percent (18%).
Appears in 1 contract
Landlord’s Remedies Upon Default. Upon If Tenant shall at any time (i) be in default in the occurrence payment of an Event Base Rent, Additional Rent, or other sums of Default money required to be paid by Tenant and Tenant shall fail to remedy such default within five (5) days after Tenant receives notice from Landlord of Tenant's failure to pay Base Rent or Additional Rent, which Landlord shall not be obligated to give Tenant notice more than two times during every 12 month period; (ii) violate any restriction or rule in the Building Rules or the Declaration and fail to remedy such violation within thirty (30) days after receipt of written notice thereof except that if such default is of the nature which is reasonably curable but requires more than thirty (30) days to commence, then Landlord within such longer period as is reasonable to cure such default if Tenant commences to diligently cure; (iii) be in default in the performance of any other covenant, term, condition, provision, rule or regulation of this Lease, and Tenant shall fail to remedy such default within fifteen (15) days after receipt of written notice thereof except that if such default is of the nature which is reasonably curable but requires more than fifteen (15) days to commence, then within such longer period as is reasonable to cure such default if Tenant commences to diligently cure; (iv) violate the provisions of Section 34(b) hereof; (v) fail to continuously occupy and conduct Tenant's business on the Premises without continuing to pay Base Rent, Additional Rent or other sums due hereunder; or (vi) become insolvent or make an assignment for the benefit of creditors, or if a receiver or trustee of Tenant's property shall be entitled appointed, or if proceedings under any chapter of the United States Bankruptcy Code shall be instituted by or against Tenant and shall not be dismissed within sixty (60) days after being filed, or if any event shall happen which, aside from this provision, would cause any assignment or devolution of Tenant's interest or occupancy hereunder by operation of law; then, in any such event, Landlord, in addition to the following remedies:
(a) Terminate this Lease all other remedies given to Landlord in law or in equity, may by giving written notice of termination to Tenant, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender the Premisesterminate this Lease, then Landlord may, or without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damagesterminating this Lease, re-enter and take possession of the Premises without trespass and expel by summary proceedings or remove Tenant and otherwise. In any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) event Landlord may re-enter and take possession dispossess the Tenant, it being the understanding that under no circumstances is this Lease to be an asset for Tenant's creditors by operation of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenantlaw or otherwise. In the event Landlord so of such re-enters and takes possession of the Premises as set forth above, entry Landlord agrees to shall use reasonable efforts due diligence to relet the Premises for as any other vacant space. However, Tenant's Premises will not be treated as a commercially reasonable rate at priority over any other vacant space. In the time event of such a reletting. No reletting by , Landlord is considered shall apply the rent therefrom first to be for the payment of Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In additionreasonable expenses, no such reletting is to be considered an acceptance including attorneys' fees incurred by reason of Tenant's surrender default, and the expense of reletting, including repairs of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything and leasing commissions, and then to the contrary set forth hereinamount of Base Rent, in no event shall Landlord have the right to accelerate Rent (unless Additional Rent, and all other sums due from Tenant hereunder, Tenant remaining liable for all other sums due from Tenant hereunder and for any deficiency. Any and all such deficiencies shall be more than ninety (90) days delinquent in payable by the Tenant monthly on the date herein provided for the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Base Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Lease.
Appears in 1 contract
Samples: Lease (Unisphere Solutions Inc)
Landlord’s Remedies Upon Default. Upon In the occurrence event that Tenant fails to pay any rent or other charges due hereunder within ten (10) days after notice from Landlord that the same is due; or fails to perform any of an Event Tenant's obligations under the terms, conditions, or covenants of Default by Tenant, then Landlord shall be entitled to the following remedies:
(a) Terminate this Lease by giving for more than thirty (30) days after receipt of written notice of termination to Tenantsuch failure or if such failure shall be of such nature that the same cannot be reasonably cured or remedied within such thirty (30) day period, in which event Tenant shall immediately surrender not in good faith have commenced the curing or remedying of such failure within such thirty (30) day period and thereafter diligently proceed therewith to completion; or if Tenant shall abandon the Leased Premises; or if this Lease or the estate created hereby shall be taken in execution or another process of law; or if Tenant shall be adjudicated insolvent or bankrupt pursuant to the provisions of any state or federal insolvency or bankruptcy act; or if a receiver or trustee of the property of Tenant shall be appointed by reason of Tenant's insolvency and inability to pay debts; or if any assignment shall be made of Tenant's property for its benefit of the creditors, (all of the foregoing being events of default), then and in any such event, Landlord, besides other rights or remedies it may have, shall have the immediate right to re-enter the Leased Premises and to Landlordremove all persons and property therefrom without notice or resort to legal process and without being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby. If Tenant fails shall fail to so surrender the Premises, then Landlord may, without prejudice to pay rent or any other remedy it has for possession charges within ten (10) days after same becomes due and payable, such unpaid amounts shall bear interest from the due date at four percent (4.00%) above the prime interest rate of the Premises CitiBank or arrearages in rent or other damages, re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder)its successor. In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published payable by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leaseexceed eighteen percent (18%).
Appears in 1 contract
Samples: Lease Agreement (Cross Country Inc)
Landlord’s Remedies Upon Default. Upon 20.1 In the occurrence event of an any Event of Default by on the part of Tenant, then Landlord shall be entitled to the following remedies:
may, if it so elects, and provided a Proper Successor (aas defined in Section 31.5) Terminate this Lease by giving has been designated, upon ten (10) days written notice of termination to Tenant, in which event Tenant shall immediately surrender the Premises forthwith either (i) terminate this Lease and Tenant’s right to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Premises Leased Property; or arrearages in rent or other damages, re-enter and take (ii) terminate Tenant’s right to possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of the Premises Leased Property without terminating this Lease. Upon any such termination of this Lease, or upon any such termination of Tenant’s right to possession without termination of this Lease, Tenant shall vacate the Lease in accordance with applicable lawDemised Premises immediately, and relet shall quietly and peaceably deliver possession thereof to Landlord, and Tenant hereby grants to Landlord full and free license to enter into and upon the Demised Premises in such event with or without process of law and apply to repossess the Rent received to the account of TenantLeased Property as Landlord’s former estate. In the event of any such termination of this Lease, Landlord so re-enters shall again have possession and takes possession enjoyment of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything Leased Property to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice extent and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less made, and thereupon the fair rental value lease of the Leased Property and everything herein contained on the part of Tenant to be done and performed in connection therewith shall cease and terminate, all, however, without prejudice to and without relinquishing the rights of Landlord to Base Rent (which, upon such termination of this Lease and entry of Landlord upon the Demised Premises or any portion thereof, shall, subject to applicable law, be the right to receive Base Rent due up to the time of such entry) or any other right given to Landlord hereunder or by operation of law.
20.2 In the event Landlord elects either to terminate this Lease or to terminate Tenant’s right to possession of the Leased Property upon the occurrence of an Event of Default, then all licenses, certifications, permits and authorizations issued by any governmental agency, body or authority in connection with or relating to the Facilities shall be deemed as being assigned to Landlord to the extent permissible under United States or California law. Landlord shall also have the right to continue to utilize the telephone numbers and facility names used by Tenant in connection with the operation of the Facilities but not any name, xxxx or brand of Guarantor or its affiliates. To the extent permissible under United States and California law, this Lease shall be deemed and construed as an assignment for purposes of vesting in Landlord all right, title and interest in and to (i) all licenses, certifications, permits and authorizations obtained in connection with the Facilities and (ii) the facility names and telephone numbers used in connection with the Facilities. Tenant hereby agrees to take such other action and execute such other documents as may be necessary in order to vest in Landlord all right, title and interest to the items specified herein.
20.3 If Tenant abandons the Demised Premises or otherwise entitles Landlord so to elect, and Landlord elects, to terminate only Tenant’s right to possession of the Leased Property without terminating this Lease, Landlord may, at its option, enter into the Demised Premises, remove Tenant’s signs and other evidence of tenancy and take and hold possession thereof as provided in the foregoing Section 20.1 of this Article, without such entry and possession terminating this Lease or releasing Tenant, in whole or in part, from Tenant’s obligation to pay the Base Rent hereunder for the corresponding period. The accelerated rent full remaining Term, and in any such case, subject to applicable law, Tenant shall be discounted pay to the date payable at an annual interest rate Landlord a sum equal to the prime rate as published from time to time in the Money Section entire amount of the Wall Street JournalBase Rent reserved hereunder and required to be paid by Tenant up to the time of such termination of the right of possession plus any other sums then due hereunder. Upon and after entry into possession without termination of this Lease, Landlord may attempt to relet the Leased Property for the account of Tenant for such Base Rent, or if shall operate the Facilities for such time and upon such terms as Landlord in its discretion shall determine. In any such case, Landlord may make repairs in or to the Demised Premises, and redecorate the same to the extent reasonably required in connection with the reletting of the Demised Premises, and subject to applicable law, Tenant shall, upon demand, pay the reasonable cost thereof, together with Landlord’s reasonable expenses of reletting. If the consideration payable to Landlord upon any such reletting is not published anymore then at sufficient to pay monthly the prime rate published by Citibank full amount of Base Rent reserved in Florida. Upon payment this Lease, together with the reasonable costs of the accelerated rent discounted repairs and redecorating and Landlord’s expenses, then, subject to present valueapplicable law, Tenant shall pay to Landlord the amount of each monthly deficiency upon demand.
20.4 Subject to applicable law, Tenant’s liability to Landlord for damages for default in payment of Base Rent or otherwise hereunder shall in all events survive the termination by Landlord of this Lease or the termination by Landlord of Tenant’s right to possession only of the Leased Property as hereinabove provided. Subject to applicable law, upon any such termination of this Lease or at any time after such termination of Tenant’s right to possession, Landlord may recover from Tenant and Tenant shall pay to Landlord as liquidated and final damages, whether or not Landlord shall have collected any current monthly deficiencies under the foregoing paragraph, and in lieu of such current deficiencies after the date of demand for such final damages, the amount thereof found to be released due by a court of competent jurisdiction, which amount thus found may be equal to:
(a) the remainder, if any, of Base Rent charges due from Tenant for the period up to and including the date of the termination of this Lease or Tenant’s right to possession; and
(b) the amount of any current monthly deficiencies accruing and all further liability unpaid by Tenant up to and including the date of Landlord’s demand for final damages hereunder; and
(c) the Base Rent reserved for what would have been the remainder of the Term with respect to the Demised Premises together with charges to be paid by Tenant under this Lease. If any statute or rule governing a proceeding in which such liquidated final damages are to be proved shall validly limit the amount thereof to an amount less than the amount above agreed upon, Landlord shall be entitled to seek the maximum amount allowable under such statute or rule of law. Nothing contained in this Lease shall relieve Landlord, to any extent, of any requirement for Landlord to mitigate its damages to extent required by applicable law.
Appears in 1 contract
Landlord’s Remedies Upon Default. Upon Landlord has the occurrence following remedies if Tenant breaches or defaults on this Lease. These remedies are not exclusive but are in addition to any rights and remedies now or later allowed by law or in equity.
1. Landlord may either terminate Tenant's right of an Event of Default by Tenant, then Landlord shall be entitled possession to the following remedies:
(a) Terminate Premises, thereby terminating this Lease, or have this Lease by giving written notice continue in full force and effect with Tenant having the right of termination possession to Tenant, in which event Tenant shall immediately surrender the Premises to LandlordPremises. If Tenant fails Landlord elects to so surrender terminate Tenant's right of possession to the Premises, then Landlord maywill have the immediate right of entry to and may remove all persons and property from the Premises. Such property so removed may be stored in a public warehouse or elsewhere at the cost and for the account of Tenant. Upon such termination Landlord, without prejudice in addition to any other remedy it has rights and remedies, including rights and remedies under Subparagraphs (1), (2) and (4) of Subdivision (a) of Section 1951.2 of the California Civil Code, or any amendment to or any successor law of that section, will be entitled to recover from Tenant the worth at the time of award of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of such rental loss that the Tenant proves could be reasonably avoided. The amount Landlord may recover under Subparagraph (4) of Subdivision (a) of Section 1951.2 of the California Civil Code will include, without limitation, the cost of recovering possession of the Premises, expenses of reletting (including advertising), brokerage commissions and fees, costs of placing the Premises in good order, condition and repair, including necessary maintenance and restoration of the Premises, attorneys' fees, court costs and costs incurred in the appointment of and performance by a receiver to protect the Premises or arrearages in rent or other damages, re-enter and take possession Landlord's interest under this Lease. The worth at the time of the Premises without trespass award of the amount referred to in Subparagraph (3) of Subdivision (a) of Section 1951.2 of the California Civil Code will be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one percent (1%). The worth at the time of the award referred to in Subparagraphs (1) and expel or remove Tenant and any other person occupying (2) of Subdivision (a) of Section 1951.2 of the California Civil Code will be computed by allowing interest at the maximum rate permitted by law. Prior to such award, Landlord may relet the Premises for the purpose of mitigating damages suffered by Landlord because of Tenant's failure to perform its obligations hereunder.
2. Any proof by Tenant under Subparagraphs (2) or (3) of Subdivision (a) of Section 1951.2 of the California Civil Code of the amount of rental loss that could be reasonably avoided will be made in the following manner: Landlord and Tenant will each select a licensed real estate broker in the business of renting property of the same type and Purpose as the Premises and in the same geographic vicinity; these two brokers will select a third licensed real estate broker of similar qualifications; the two brokers selected by the parties will determine the amount of rental loss that could be reasonably avoided for the balance of the Term after the time of the award. The third broker will then decide which of the two brokers has made the better determination of the worth at the time of the award, and his decision will be final and binding on the parties.
3. If Landlord elects to keep this Lease in full force and effect with Tenant retaining the right of possession to the Premises (notwithstanding the fact that Tenant may have vacated or abandoned the Premises), Landlord may enforce all of its rights and remedies under this Lease or allowed by law or in equity including, but not limited to, the right to recover the installments of Rent as they become due under this Lease; additionally, the Landlord has the remedy described in California Civil Code Section 1951.4 (lessor may continue lease in effect after lessee's breach and abandonment and recover rent as it becomes due, if lessee has right to sublet or assign, subject only to reasonable limitations). Notwithstanding any such election to have this Lease remain in full force and effect, Landlord may at any time thereafter elect to terminate Tenant's right of possession to the Premises, thereby terminating this Lease, for any previous breach or default which remains uncured, or for any existing or subsequent breach or default. For purposes of Landlord's right to continue this Lease in effect upon Tenant's breach or default, acts of maintenance or preservation or efforts by Landlord to relet the Premises or the appointment of a receiver on initiative of Landlord to protect its interest under this Lease do not constitute a termination of Tenant's right of possession.
4. If Landlord elects to keep this Lease in full force and effect, Landlord may, as attorney-in-fact of Tenant, sublet the Premises, or any part thereof, from time to time and for such tenant, at such rent, and upon such other terms, covenants and conditions as Landlord in accordance its sole discretion may deem advisable with applicable lawthe unqualified right to make alterations, effect restoration, and perform maintenance to the Premises. Upon each such subletting (i) Tenant will be responsible for, in addition to Tenant's indebtedness to Landlord other than Rent due hereunder, the costs of such subletting and of such alterations, restoration and maintenance incurred by Landlord, and the amount by which the Rent hereunder for the period of such subletting (to the extent such period does not exceed the Term hereof) exceeds the amount agreed to be paid as Rent for the Premises for the period of such subletting, or (ii) at the option of Landlord, rents received from such subletting will be applied: first, to the payment of Tenant's indebtedness to Landlord other than Rent due hereunder; or
(b) second, to the payment of costs of such subletting and of such alterations, restoration and maintenance; third, to the payment of Rent due and unpaid hereunder; and fourth, the residue, if any, to be held by Landlord and applied in payment of future Rent as the same becomes due hereunder. If Tenant has been credited with any rent to be received by such subletting and such rent is not promptly paid to Landlord by the subtenant(s), or if such rent received from such subletting during any month is less than the Rent to be paid during that month by Tenant hereunder, Tenant will pay any such deficiency to Landlord. Such deficiency will be calculated and paid monthly on the date Rent is due and payable hereunder. No taking possession of the Premises by Landlord, as attorney-in-fact for Tenant, will be construed as an election on Landlord's part to terminate this Lease unless a notice of such election is given to Tenant. Notwithstanding any such subletting without termination of this Lease, Landlord may re-enter at any time thereafter elect to terminate this Lease for any previous, existing or subsequent breach or default. At Landlord's option and application, a receiver for Tenant will be appointed to take possession of the Premises without terminating the Lease in accordance with applicable lawPremises, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of exercise Landlord's right to sublet the Premises as set forth aboveattorney-in-fact for Tenant, and to apply any rent collected from the Premises as provided herein.
5. Nothing in this paragraph affects Landlord's right of to indemnification for liability arising prior to the termination of the Lease for damage to person or property.
6. If Tenant is in default in the performance of any term, covenant or condition to be performed by it under this Lease, then, after notice and without waiving or releasing Tenant from the performance of such term, covenant or condition, Landlord agrees to use reasonable efforts to relet may, but will not be obligated to, perform the Premises for a commercially reasonable rate same, and, in exercising any such right, may pay necessary and incidental costs and expenses in connection therewith. All sums so paid by Landlord, together with interest thereon at the time maximum rate of such relettinginterest allowed by law, will be deemed Additional Rent hereunder and will be payable to Landlord by Tenant on the next rent-paying day.
7. Rent not paid when due bears interest, in addition to any late charge provided hereunder, at the maximum rate of interest allowed by law from the date due until paid.
8. No reletting by security or guaranty which may now or hereafter be furnished Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent the Base Rental or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx for performance by Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if other terms, covenants or conditions of this Lease had not been terminated) less will in any way be a bar or defense to any action in unlawful detainer, for the fair rental value recovery of the Premises Premises, or to any action which Landlord may at any time commence for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section a breach of any of the Wall Street Journalterms, covenants or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment conditions of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Lease.
Appears in 1 contract
Samples: Office Lease (Tenera Inc)
Landlord’s Remedies Upon Default. Upon the occurrence of an Event of Default by Tenant, then Landlord shall be entitled to the following remedies:
(a) Terminate this Lease by giving written notice of termination to Tenant, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damages, re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for Landlord's ’s own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's ’s surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx sxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Lease.
Appears in 1 contract
Samples: Lease Agreement (Nationsrent Inc)
Landlord’s Remedies Upon Default. Upon (A) Should Tenant be in default hereunder as aforesaid, Landlord shall have the occurrence option, without further notice or putting in default, such notice being hereby waived, of an Event invoking any or all of Default the following rights or remedies: (i) proceeding for all past due rent and damages caused by Tenantsuch default, reserving its right to proceed later for the remaining rent payments becoming due hereunder and to enforce later its legal remedies hereunder, and, at Landlord's option, proceeding for specific performance and/or injunctive relief; or (ii) proceeding for all past due rent and damages caused by such default, declaring all unpaid installments of Monthly Base Rent for the entire term of this Lease immediately due and payable, and proceeding to enforce its rights and remedies hereunder, reserving its right to proceed later for Additional Rent as such amounts become due; or (iii) proceeding for all past due rent and damages caused by such default and canceling and terminating this Lease, which cancellation shall be effective immediately, without putting Tenant in default, Tenant hereby assenting thereto and expressly waiving legal notice to vacate, including, but not limited to, that notice provided for in Louisiana Code of Civil Procedure Article 4701.
(B) If Landlord elects option A.(iii) and terminates this Lease, then Landlord shall be entitled to the following remedies:
(a) Terminate this Lease by giving written notice of termination to Tenant, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damages, re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter lease the Leased Premises for such price and take possession on such terms as may be immediately obtainable, and Tenant shall be and remain liable, not only for all rent due and other obligations incurred up to the date of termination, but also for stipulated or liquidated damages for its nonperformance equal to the sum of (i) all expenses that Landlord may incur in re-entering and re-possessing the Leased Premises, making good any default by Tenant, putting the Leased Premises in proper repair and removing Tenant improvements, if Landlord has elected to require such removal, making such reasonable, non-structural modifications as shall be required for any new tenants, protecting and preserving the Leased Premises by placing watchmen and caretakers therein, reletting the Leased Premises, including attorney's fees and disbursements, sheriffs fees, and brokerage fees in doing so, and any and all expenses that Landlord may incur during the occupancy of the new tenant, plus (ii) the amount by which the total amount of all rent that Landlord was to have received under this Lease from the date of termination to the original expiration date of the term, exceeds the fair rental value of the Leased Premises without terminating during such period (for purposes of such calculation, the Lease fair rental value of the Leased Premises during any period prior to the time at which Landlord could reasonably have been expected to have placed a tenant in accordance with applicable lawthe Leased Premises shall be zero, and relet if Landlord shall have leased the Leased Premises to a new tenant, then the rental payable by the new tenant shall be deemed to be the fair rental value of the Leased Premises and apply the Rent received period between the termination of this Lease and the commencement of the new lease shall be deemed to be the account time within which Landlord could reasonably have been expected to have placed a tenant in the Leased Premises). In any case, Landlord may remove or cause to be removed, at Tenant's expense, all effects from the Leased Premises and store the same in Landlord's or Tenant's name, but at the cost, expense, and risk of Tenant. In the event , without liability to Landlord so re-enters for loss or injury thereto, and takes possession of the Premises as set forth above, Landlord agrees without prejudice to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that lien and privilege securing all sums due under this Lease has been terminatedLease. In addition, no should Tenant be in default hereunder, Landlord is hereby irrevocably authorized, to the extent legally permitted, to sell, at public or private sale, with or without legal proceedings, and with or without notice, demand, advertisement, appraisement, or any other formality, any and all of the contents of the Leased Premises, and Landlord may purchase such reletting contents at private sale or for the highest bid at public sale, and the proceeds thereof, after deducting all costs, charges, attorney's fees, and expenses of such sale, shall be applied to the payment of rent, and the balance remaining after the payment of said rent shall belong and be paid to Tenant.
(C) In addition to, and not in lieu of the foregoing, if Tenant should fail to perform any of its obligations hereunder when such performance is due, Landlord will have the right, but not the obligation, to pay all sums and take all actions that are necessary or desirable to perform such obligation, all at Tenant's cost and expense. Any performance by Landlord of any obligation of Tenant shall not be considered an acceptance construed as a modification or waiver of any provision of this Lease, but such obligation shall remain the obligation of Tenant's surrender of the Premises unless . All sums paid by Landlord so notifies and all costs and expenses incurred by Landlord in performing such obligations shall be paid by Tenant in writingto Landlord, as Additional Rent, within ten (10) days after demand therefor by Landlord. Notwithstanding anything to the contrary set forth hereinin the foregoing, in Landlord shall have no event obligation to perform any of Tenant's obligations and shall not be liable to Tenant or any other person or entity for any failure to do so. In addition, neither the performance of Tenant's obligations under this Lease by Landlord have nor Landlord's failure to do so shall constitute a waiver of Landlord's right to exercise any of its remedies for default herein as a result of Tenant's failure, Landlord reserving the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice treat any and all cure periods hereunder)of the events set out in Article 22(A) hereof as a default and to exercise any or all of the remedies set out in this Article upon the occurrence of such an event.
(D) In addition to any statutory lien for Rent in Landlord's favor, Landlord (the secured party for purposes hereof) shall have and Tenant (the debtor for purposes hereof) hereby grants to Landlord, a continuing security interest for all Rent, and other sums of money becoming due hereunder from Tenant, upon all goods, wares, equipment, fixtures, furniture, inventory, accounts, contract rights, chattel paper and other personal property of Tenant situated on the Leased Premises subject to this Lease (collectively, the "Collateral") and such property shall not be removed therefrom without the consent of Landlord until all arrearages in Rent as well as any and all sums of money then due to Landlord hereunder shall first have been paid and discharged. In no the event of a default under this Lease, Landlord shall Landlord have have, in addition to any other remedies provided herein or by law, all rights and remedies under the Uniform Commercial Code, including without limitation the right to xxx sell the property described in this Section at public or private sale upon ten (10) days written notice to Tenant which notice Tenant hereby agrees is adequate and reasonable. Tenant hereby agrees to execute such other instruments necessary or desirable in Landlord's discretion to perfect the security interest hereby created, including but not limited to UCC Financing Statements. Any statutory lien for Rent is not hereby waived, the express contractual lien herein being granted in addition and supplementary thereto. Tenant warrants and represents that the collateral subject to the security interest granted herein is not purchased or used by Tenant for personal, family or household purposes. The lien granted herein to Landlord constitutes a first and superior lien and the Tenant further warrants and represents that Tenant will not allow the placing of any consequential, punitive or incidental damages other lien upon the property described in this Section without the prior written consent of Landlord. The term lien as used herein includes privileges provided for under Louisiana law.
(including, without limitation, any claims for lost profits and/or lost business opportunity). If E) All rights and remedies of Landlord does accelerate the Rent, then the accelerated rent under this Lease shall be an amount equal to the Rent payable over the balance of the Lease Term (as if cumulative, and none shall exclude any other rights or remedies granted in this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published allowed by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leaselaw.
Appears in 1 contract
Samples: Lease Agreement (GolfSuites 1, Inc.)
Landlord’s Remedies Upon Default. Upon In the occurrence event Tenant shall default in the payment, when due, of any installment of rent or other charges or money obligation to be paid by Tenant hereunder (all of which monetary obligations of Tenant shall bear interest at the highest rate allowable by law, not to exceed eighteen percent (18%) per annum, from the date due until paid in full) within five (5) business days after the date any such amount is due; provided, however, that Tenant shall not be in default with respect to the first two (2) monetary payments received after such five (5) day period in any Lease Year until five (5) days after Tenant's receipt of written notice of such late payment; or if Tenant shall default in performing any of the covenants, terms or provisions of this Lease (other than the payment, when due, of any of Tenant's monetary obligations hereunder) or any of the Rules and Regulations now or hereafter established by Landlord to govern the operation of the building and fails to cure such default within 30 calendar days after written notice thereof from Landlord; provided, however, that, solely with respect to non-monetary defaults which cannot with due diligence and best efforts be cured within such thirty (30) day period if, within such thirty (30) day period Tenant commences and thereafter diligently pursues the cure of any such non-monetary default, Tenant shall be granted an Event additional reasonable period of Default by time to effect a cure; or if Tenant shall abandon the Premises and discontinue timely rental payments; or if Tenant is adjudicated a bankrupt; or if a permanent receiver is appointed for Tenant's property; or if, whether voluntarily or involuntarily, Tenant takes advantage of any debtor relief proceedings under any present or future law, whereby the rent or any part thereof, is or is proposed to be, reduced or payment thereof deferred, or if Tenant makes an assignment for the benefit of creditors or if Tenant's property or effects should be levied upon or attached under process against Tenant, then not satisfied or dissolved within 10 calendar days after written notice from Landlord shall be entitled to Tenant to obtain satisfaction thereof; then, and in any of said events, Landlord, at its option may pursue any one or more of the following remedies:
(a) Terminate remedies without any notice or demand whatsoever: . Landlord, at its option, may at once, or at any time thereafter terminate this Lease by giving written notice of termination to Tenant, in which event whereupon this Lease shall end concurrently with the receipt by Tenant shall immediately of such notice. Upon such termination by Landlord, Tenant will at once surrender possession of the Premises to LandlordLandlord and remove all of Tenant's effects therefrom, and Landlord may forthwith re-enter the Premises and repossess himself thereof, and remove all persons and effects therefrom, using such force as may be necessary, without being guilty of trespass, forcible entry, detainer or other tort. If Tenant fails to so surrender the Premises, then . Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damagesterminating this Lease, re-enter upon and take possession of the Premises without trespass and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, without being liable for prosecution or any claim for damages therefor, and, if Landlord so elects, make such alterations and repairs as, in accordance with applicable law; or
(b) Landlord Landlord's judgment, may re-enter and take possession of be necessary to relet the Premises without terminating the Lease in accordance with applicable lawPremises, and relet such space or any part thereof for such rent and for such period of time and subject to such terms and conditions as Landlord may deem advisable and receive the Premises and apply the Rent rent therefor. Upon each such reletting, all rent received by Landlord from such reletting shall be applied first to the account payment of Tenantany indebtedness other than rent due hereunder from Tenant to Landlord, including interest thereon; second, to the payment of any loss or expense of such reletting, including brokerage fees, reasonable attorneys' fees, advertising and promotion expenses and the cost of such alterations and repairs; third, to the payment of rent due and unpaid hereunder, together with interest thereon as herein provided; and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. Tenant agrees to pay to Landlord, on demand, any deficiency that may arise by reason of such reletting. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such prior default. . In the event Landlord so re-enters and takes possession terminates this Lease in accordance with the provisions of the Premises as set forth abovethis Article 16, Landlord agrees may, in addition to use any other remedy it may have, recover from Tenant all damages and expenses Landlord may suffer or incur by reason of Tenant's default hereunder, including, without limitation, the cost of recovering the Premises, reasonable efforts to relet attorneys' fees and the Premises for a commercially reasonable rate worth at the time of such reletting. No reletting by Landlord is considered termination of the excess, if any, of the amount of rent and charges equivalent to be for Landlord's own account unless Landlord has notified Tenant the rent reserved in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender for the remainder of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable stated term over the balance of the Lease Term (as if this Lease had not been terminated) less the fair then reasonable rental value of the Premises for the corresponding periodremainder of the stated term based upon a reduction to present value calculation at the rate of ten percent (10%), all of which sums shall become immediately due and payable by Tenant to Landlord upon demand of Landlord. The accelerated rent shall be discounted . Anything in this Lease to the date payable at an annual interest rate equal contrary notwithstanding, in order to cover the prime rate as published from time to time extra expense involved in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present valuehandling delinquent payments, Tenant shall pay a "late charge" of Two Hundred Fifty and No/100 Dollars ($250.00) when any installment of rent (basic or otherwise, as may be released from any and all further liability considered additional rental under this Lease) is paid more than seven (7) business days after the due date thereof. It is hereby understood that this charge is for extra expenses incurred by the Landlord in processing the delinquency and shall not be considered interest. . Pursuit of any of the foregoing remedies shall not preclude Landlord from pursuing any other remedies herein or at law or in equity provided, nor shall pursuit of any remedy by Landlord constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damages accruing to Landlord by reason of Tenants violation of any of the covenants and provisions of this Lease.
Appears in 1 contract
Landlord’s Remedies Upon Default. Upon the occurrence of an Event of Default by Tenant, then Landlord shall be entitled to the following remedies:
(a) Terminate this Lease by giving written notice of termination to Tenant, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damages, re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, the right to accelerate the Rent and other amounts payable hereunder except as otherwise provided herein . In the event that Tenant shall be in no event default in the payment of Rent for ninety (90) consecutive days, Landlord shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over remaining during the balance of the Lease then existing Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent any amounts received by Landlord in mitigation thereof), which sum shall be discounted to present value utilizing the United States Treasury Xxxx rate (at the date payable at an annual interest rate equal of such acceleration) having a maturity comparable to the prime rate as published from time to time in the Money Section remaining Term of the Wall Street Journal, or if same is not published anymore then at Lease to the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leasenearest full calendar year.
Appears in 1 contract
Samples: Lease Agreement (Nationsrent Inc)
Landlord’s Remedies Upon Default. Upon the occurrence of an Event of any Default by Tenant, then Landlord shall have the rights and remedies hereinafter set forth, which shall be entitled distinct, separate and cumulative and shall not operate to the following remedies:exclude or deprive Landlord of any other right or remedy allowed them by law.
(a) Terminate Landlord may terminate this Lease by giving written notice of termination Landlord’s intention so to Tenantdo, in which event the term shall end, and all right, title and interest of the Tenant hereunder shall immediately surrender expire on the Premises date stated in such notice;
b) Landlord may terminated the right of Tenant to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Leased Premises without terminating this Lease by giving written notice to Tenant that Tenant’s right of possession shall end on the date stated in such notice, whereupon the right of Tenant to possession of the Leased Premises or arrearages any part thereof shall cease on the date stated in rent such notice; and
c) Landlord may enforce the provisions of this Lease and may enforce and protect the rights of Landlord hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other damagesappropriate legal or equitable remedy, including recovery of all monies due or to become due from Tenant under any of the provisions of this Lease. If the Landlord exercises either of the remedies provided in subparagraphs (a) and (b) of this paragraph, Tenant shall surrender possession and vacate the Leased Premises immediately and deliver possession thereof to Landlord, and Landlord may then or at any time thereafter re-enter and take complete license so to do being hereby granted to Landlord, and Landlord may remove all occupants and property therefrom, using such force as may be necessary, without being deemed in any manner guilty of trespass, eviction or forcible entry and detainer and without relinquishing Landlord hereunder of by operation of law. If the Landlord terminates the right of Tenant to possession of the Leased Premises without trespass terminating this Lease, such termination of possession shall not release Tenant, in whole or part, from Tenant’s obligation to pay the rental hereunder for the full lease term, and expel or remove the aggregate amount of the base rent for the period from the date stated in the notice terminating possession to the end of the term of this Lease shall at once mature and be immediately due and payable by tenant to Landlord, together with any and all other monies due hereunder, and Landlord shall have the right to immediate recovery of all such amounts. In addition, Landlord shall have the right, from time to time, to recover from Tenant, and Tenant shall remain liable for, all additional rent and any other person occupying sums thereafter accruing as they become due under this Lease during the Premises or any part thereof, in accordance with applicable law; or
(b) period from the date of such notice of termination of possession to the stated end of the term of this Lease. Landlord may re-enter make repairs, alterations and take possession of additions in or to the Leased Premises without terminating and redecorate the Lease same to the extent deemed by Landlord necessary or desirable and in accordance with applicable lawconnection therewith change the locks, and relet Tenant shall upon demand pay the Premises cost thereof together with Landlord’s expenses of reletting. Landlord may collect the rents from any such reletting and apply the Rent received same first to the account payment of the expenses of re-entry, redecoration, repairs and alterations and the expenses of reletting and second to the payment of rental herein provided to be paid by Tenant, and any excess or residue shall operate only as an offsetting credit to be paid by Tenant, if any, shall not be deemed to give Tenant any right, title or interest in or to such excess or residue and any such excess or residue shall belong to Landlord solely; provided, that in no event shall Tenant be entitled to a credit on its indebtedness to Landlord in excess of the aggregate such which would have been paid by Tenant for the period for which the credit to Tenant is being determined, had no Default occurred. No such re-entry or repossession, repairs, alterations and additions, or reletting shall be construed as eviction or ouster of Tenant or shall operate to release Tenant in whole or in part from any of Tenant. In ’s obligations hereunder; and Landlord may, at any time, xxx and recover judgment for nay deficiencies from time to time remaining after the event Landlord so re-enters and takes possession application, from time to time, of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time proceeds of any such reletting. No reletting If this Lease is terminated by Landlord as provided for by subparagraph (a) of this paragraph, Landlord shall be entitled to recover from Tenant all the fixed basic rent accrued and unpaid for the period up to and including such termination date, as well as all other additional sums payable by Tenant, or for which Tenant is considered liable or in respect of all of which tenant has agreed to indemnify Landlord under any of the provisions of this Lease, which may be then owing and unpaid, and all costs and expenses, including court costs and attorney fees incurred by Landlord in the enforcement of (its) rights and remedies hereunder; and in addition, Landlord shall be entitled to recover as damages an amount equal to the remaining rents for Landlord's own account unless the remainder of the term of this Lease, as an amount to the remaining rents for the remainder of the term of this Lease, as well as all other additional sums payable by Tenant, or for which Tenant is liable or in respect of which Tenant had agreed to indemnify Landlord has notified Tenant in writing that under any of the provisions of this Lease has had this Lease not been terminated. In addition, no such reletting is Landlord makes repairs, alterations and additions in or to the Leased Premises and redecorate the same to the extent deemed by the Landlord necessary or desirable and in connection therewith change the locks to the Leased Premises, and Tenant shall be liable for the costs thereof. Landlord may collect the rents from any reletting, if any, and apply the same first to the expenses of re-entry, redecoration, repairs and alterations and the expenses of reletting, and second to the payment of rental herein provided to be considered an acceptance paid Tenant, and any excess or residue shall operate only as offsetting credit against the amount of Tenant's surrender of rental as the Premises unless same thereafter becomes due and payable hereunder, but Tenant shall have no right, title or interest in such excess or residue and it shall belong to Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth hereinsolely; provided, that in no event shall Tenant be entitled to a credit on indebtedness to Landlord in excess of the aggregate sum which would have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx been paid by Tenant for any consequentialthe period for which the credit to Tenant is being determined, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leaseno Default occurred.
Appears in 1 contract
Samples: Lease Agreement (Endocyte Inc)
Landlord’s Remedies Upon Default. Upon the occurrence of an Event of Default by Tenant, then Landlord shall be entitled to the following remedies:
(a) Terminate Landlord may terminate this Lease by giving written notice of termination to Tenant, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damages, re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time lime of such reletting. No reletting by Landlord is considered to be for Landlord's ’s own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's ’s surrender of the Premises or a release of Tenant’s obligation to pay Rent and all other charges payable hereunder (which obligation Tenant agrees shall continue), unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event .
(c) Landlord shall Landlord have the right to accelerate the Rent (unless and other amounts payable hereunder should Tenant shall be become more than ninety two (902) days months delinquent in the payment of Rent or such other amounts payable, after the expiration of notice and all cure periods hereunder). In no event Landlord shall Landlord have the right to xxx sxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the RentRent or such other charges due hereunder, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if the same is not published anymore published, then at the prime rate published by Citibank Bank of America in FloridaNevada. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Lease.
Appears in 1 contract
Landlord’s Remedies Upon Default. Upon (a) In the occurrence event Tenant shall at any time fail to make timely payment of rent or perform any of its obligations under this Lease, and Tenant shall fail to remedy such failure within fifteen (15) days after receipt of written notice thereof from Landlord if said failure relates to payment of rent, or other monetary charges under this Lease, or within thirty (30) days after receipt of written notice thereof from Landlord if the failure relates to matters other than payment of rent or other monetary charges under this Lease, (but Tenant shall not be in default of a matter other than payment of rent or other monetary charges under this Lease if it commences to remedy same within thirty (30) days after such notice and proceeds therewith with due diligence) or if Tenant shall be adjudged a bankrupt or enter into an Event arrangement for the benefit of Default by Tenantcreditors under any state or federal insolvency law and such proceedings are not dismissed or terminated within sixty (60) days after the commencement thereof, then Landlord shall be entitled to may declare the following remedies:
(a) Terminate terms of this Lease by giving written notice of termination to Tenantterminated, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for enter into possession of the Premises and xxx for all rents and damages accrued under this tease or arrearages in rent arising out of any violation hereof, or other damages, re-enter and take Landlord may xxx without declaring this Lease void or entering into possession of the Premises without trespass and expel or remove Tenant and any other person occupying recovery of rents shall be on a monthly basis as the Premises same become due. Notwithstanding the recital of any specific remedies, Landlord shall likewise have all rights and remedies (except acceleration) to which Landlord is entitled either in law or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of equity. Notwithstanding the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as notice requirements set forth above, Landlord agrees shall not be required to use reasonable efforts to relet provide Tenant with more than two (2) fifteen-day notices during, any twelve-month period for nonpayment of rent, or other charges payable by Tenant, before Landlord exercises its immediate rights upon default as set forth and permitted above.
(b) Notwithstanding any other provisions contained in this Lease, in the event (i) Tenant or its successors or assignees shall become insolvent or bankrupt, or if it or their interests under this Lease shall be levied upon or sold under execution or other legal process, or (ii) the depository institution then operating on the Premises for a commercially reasonable rate at the time of is closed, or is taken over by any depository institution supervisory authority ("Authority"), Landlord may, in either such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that event, terminate this Lease has been terminated. In additiononly with the concurrence of any Receiver or Liquidator appointed by such Authority; provided, no such reletting that in the event this Lease is to be considered an acceptance terminated by the Receiver or Liquidator, the maximum claim of Tenant's surrender Landlord for rent, damages, or indemnity for injury resulting from the termination, rejection, or abandonment of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, unexpired Lease shall by law in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated all accrued and unpaid rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leasetermination.
Appears in 1 contract
Landlord’s Remedies Upon Default. Upon the occurrence of an Event any such default by Tenant after the expiration of Default by Tenantany applicable notice and cure period, then Landlord shall be entitled have, in addition to any other remedies available to Landlord at law or in equity, the option to pursue any one or more of the following remedies:, each and all of which shall be cumulative and, subject to the express terms hereof, nonexclusive, without any notice or demand whatsoever (except as expressly set forth herein).
(a) 19.2.1 Terminate this Lease by giving written notice of termination to TenantLease, in which event Tenant shall immediately surrender the Premises to Landlord. If , and if Tenant fails to so surrender the Premisesdo so, then Landlord may, without prejudice to any other remedy which it has may have for possession of the Premises or arrearages in rent or other damagesrent, re-enter upon and take possession of the Premises without trespass and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, in accordance with applicable lawwithout being liable for prosecution or any claim or damages therefor; orand Landlord may recover from Tenant the following:
(bi) Landlord may re-enter and take possession The worth at the time of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account award of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate any unpaid rent which has been earned at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance termination; plus
(ii) The worth at the time of Tenant's surrender award of the Premises unless Landlord so notifies amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant in writing. Notwithstanding anything to proves could have been reasonably avoided; plus
(iii) The worth at the contrary set forth herein, in no event shall Landlord have time of award of the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in amount by which the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant unpaid rent for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term after the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus
(as if iv) Any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform its obligations under this Lease had not been terminatedor which in the ordinary course of things would be likely to result therefrom, as allowed under Applicable Laws; and
(v) less the fair rental value At Landlord’s election, such other amounts in addition to or in lieu of the Premises for the corresponding period. The accelerated rent shall foregoing as may be discounted to the date payable at an annual interest rate equal to the prime rate as published permitted from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leaseapplicable law.
Appears in 1 contract
Samples: Office Lease (Legalzoom Com Inc)
Landlord’s Remedies Upon Default. Tenant shall be in default under this Lease if Tenant (i) fails to pay any installment of Base Rent, Additional Rent or other charges or money obligation to be paid by Tenant hereunder within five (5) days after the same shall become due (all of which monetary obligations of Tenant shall bear interest at the highest rate allowable by law, not to exceed 18% per annum from the date due until paid); or (ii) defaults in the performance of any of the covenants, terms or provisions of this Lease (other than the payment, when due, of any of Tenant's monetary obligations hereunder) or any of the Rules and Regulations now or hereafter established by Landlord to govern the operation of this Building and fails to cure such default within twenty (20) days after written notice thereof from Landlord; provided, however, that solely with respect to non- monetary defaults which cannot with due diligence be cured within such 20-day period, if, within such 20-day period, Tenant commences and thereafter diligently pursues the cure of any such non-monetary default, Tenant shall be granted an additional reasonable period of time to effect a cure, but in no event later than sixty (60) days after the date Tenant commences to cure the default; or (iii) abandons the Premises or fails to keep the Premises continuously and uninterruptedly open for business; or (iv) files a voluntary petition in bankruptcy, or any similar petition seeking relief under any present or future federal, or other bankruptcy or insolvency statue or law; or if a proceeding under any present or future federal, state or other bankruptcy or insolvency statute or law shall be filed against Tenant or any asset of Tenant, and such proceeding shall not have been dismissed or vacated within ninety (90) days of the date of such filing; or (v) makes an assignment for the benefit of its creditors. Upon the occurrence of an Event any of Default by Tenantthe above events, then Landlord shall be entitled to Landlord, at its option, may pursue any one or more of the following remedies:remedies without any notice or demand whatsoever: AV-BTRL6.LSE MVD-5/6/97
(a) Terminate Landlord, at its option, may at once, or at any time thereafter, terminate this Lease by giving written notice of termination to Tenant, in which event whereupon this Lease shall end. Upon such termination by Landlord, Tenant shall immediately will at once surrender possession of the Premises to Landlord and remove all of Tenants's effects therefrom, and Landlord may forthwith re-enter the Premises and repossess itself thereof, and remove all persons and effects therefrom, in accordance with law; provided, however, Landlord agrees that it will not breach the peace in the exercise of its rights herein. Notwithstanding the foregoing to the contrary, solely with respect to monetary defaults as provided in clause (i) above, Landlord agrees that it shall not exercise its right of re-entry as provided herein without a court order, unless Tenant has failed to cure said monetary default within five (5) days' after receipt of written notice from Landlord. If Tenant fails to so surrender the Premises, then .
(b) Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damagesterminating this Lease, re-enter upon and take possession of the Premises without trespass and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, without being liable for prosecution or any claim for damages therefor and, if Landlord so elects, make such alterations and repairs as, in accordance with applicable law; or
(b) Landlord Landlord's judgement, may re-enter and take possession of be necessary to relet the Premises without terminating the Lease in accordance with applicable lawPremises, and relet the Premises or any part thereof for such rent and apply for such period of time and subject to such terms and conditions as Landlord may deem advisable and receive the Rent received rent therefor; provided, however, Landlord agrees that it will not breach the peace in the exercise of its right herein. Notwithstanding the foregoing to the account contrary, solely with respect to monetary defaults as provided in clause (i) above, Landlord agrees that it shall not exercise its right of Tenantre- entry as provided herein without a court order, unless Tenant has failed to cure said monetary default within five (5) days' after receipt of written notice from Landlord. Upon each such reletting, the rent received by Landlord in respect of such reletting shall be applied first to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord, including interest thereon; second, to the payment of any loss and expenses of such reletting, including brokerage fees, attorneys' fees and the cost of such alterations and repair; third, to the payment of rent due and unpaid hereunder, together with interest thereon as herein provided; and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. Tenant agrees to pay to Landlord, on demand, any deficiency that may arise by reason of such reletting. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such prior default.
(c) In the event Landlord so shall re-enters enter the Premises and/or terminate this Lease in accordance with the provisions of this Article 16, Landlord may, in addition to any other remedy it may have, recover from Tenant all damages and takes possession expenses Landlord may suffer or incur by reason of Tenant's default hereunder, including without limitation , the cost of recovering the Premises and reasonable attorney fees. Tenant agrees that actual damages to Landlord resulting from Landlord's exercise of the remedies set forth in paragraphs (a) or (b) above, will be difficult to ascertain, and therefore, after a default of Tenant hereunder, Tenant shall also pay to Landlord "Liquidated Damages" for the failure of Tenant to observe and perform the covenants of this Lease, which at the election of Landlord, shall be either: (A) (x) the sum of (i) the minimum monthly rent, plus (ii) the Additional Rent payable hereunder for the month immediately preceding such failure to operate, re-entry or termination, less (z) the net amount, if any, of the rents collected on account of the lease or leases of the Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease, all of which sums shall become due and payable by Tenant to Landlord upon the first day of each calendar month during the otherwise unexpired portion of the term hereof; or (B) the whole of said Liquidated Damages calculated under clause (A) multiplied by the number of months then remaining in the lease term, discounted to present value at a rate of six percent (6%) per annum as set forth aboveof the date of termination or re-entry by Landlord; provided, however, that in the event Landlord agrees to use reasonable efforts to shall relet the Premises for a commercially reasonable rate at and the time rent received by Landlord in respect of such reletting. No reletting together with the discounted Liquidated Damages paid by Tenant, less the costs and expenses incurred by Landlord is considered in such reletting, shall exceed the rent reserved hereunder for that period which would otherwise have constituted the remainder of the term hereof, then Landlord shall, upon the expiration of the period which would have constituted the term of this Lease, refund to Tenant the lesser of the amount of such excess or the discounted Liquidated Damages theretofore paid by Tenant.
(d) If the rent agreed to be paid, including all other sums of money which under the provisions hereto are declared to be rent, shall be in arrears in whole or in part for Landlord's own account unless five (5) or more days, Landlord has notified may at its option (if such arrearage remains unpaid after ten (10) days' written notice to Tenant) declare the tenancy hereunder converted into a tenancy from month to month, and upon giving written notice to Tenant of the exercise of such option, Landlord shall forthwith be entitled to all provisions of law relating to the summary eviction of monthly tenants in writing default in rent.
(e) Anything in this Lease to the contrary notwithstanding, in order to cover the extra expense involved in handling delinquent payments, Tenant shall pay a "late charge" in an amount equal to the greater of (i) 5% of any delinquent payment, or (ii) $250.00, when any installment of Base Rent (or any other amount as may be considered Additional Rental under this Lease) AV-BTRL6.LSE MVD-5/6/97 is paid more than five (5) days after the due date thereof. It is hereby understood that this charge is for extra expenses incurred by the Landlord in processing the delinquency.
(f) Tenant hereby appoints as its agent to receive service of all dispossessory or other proceedings and notices thereunder and under this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender the person apparently in charge of the Premises unless Landlord so notifies at the time, and if no person then appears to be in charge of the Premises, then such service or notice may be made by attaching the same to the main entrance of the Premises, provided that, in such later event, a copy of any such proceedings or notice shall also be mailed to Tenant in writing. Notwithstanding anything to the contrary manner set forth herein, in no event shall Landlord have the right to accelerate Rent Article 33 hereof.
(unless g) Tenant shall be considered in "Habitual Default" of this Lease upon (i) Tenant's failure, on two (2) or more than ninety occasions during any Lease Year, to pay, when due, any installment of Base Rent, Additional Rent, or any other sum required by the terms of this Lease, or (90ii) days delinquent in Tenant's repeated (on three (3) or more occasions) violation of, or failure to comply with, any term covenant or condition of this Lease after written notice of such violation or failure to comply has been given by Landlord to Tenant. Upon the payment occurrence of Rent or such other amounts payablean event of Habitual Default on the part of Tenant, after expiration of notice Tenant shall immediately be deemed to have released any and all cure periods hereunder). In no event shall Landlord have options or rights granted, or to be granted, to Tenant under the right to xxx Tenant for any consequential, punitive or incidental damages terms of this Lease (including, without limitation, rights of renewal, rights to terminate, or rights of first refusal).
(h) Pursuit of any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had foregoing remedies shall not been terminated) less the fair rental value preclude Landlord from pursuing any other remedies therein or at law or in equity provided, nor shall pursuit of any remedy by Landlord constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damages accruing to Landlord by reason of Tenant's violation of any of the Premises for the corresponding periodcovenants and provisions of this Lease. The accelerated rent shall be discounted Tenant hereby waives any right to the date payable at an annual interest rate equal assert or maintain any non-compulsory counterclaims against Landlord in any action brought by Landlord to the prime rate as published from time to time in the Money Section obtain possession of the Wall Street JournalPremises. No act of Landlord (including, without limitation, acts of maintenance, efforts to relet the Premises, or if same is not published anymore then at the prime rate published any other actions taken by Citibank in Florida. Upon payment of the accelerated rent discounted Landlord or its agents to present value, Tenant shall be released from any and all further liability protect Landlord's interests under this Lease) other than a written notice of termination, shall terminate this Lease. The acceptance of keys to the Premises by Landlord, its agents, employees, contractors or other persons on Landlord's behalf shall not be deemed or constitute to effect a termination of this Lease unless such early termination is evidenced by a written instrument signed by Landlord.
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Samples: Office Lease (Boston Biomedica Inc)
Landlord’s Remedies Upon Default. Tenant shall be in default under this Lease if Tenant (i) fails to pay any installment of Base Rent, Additional Rent or other charges or money obligation to be paid by Tenant hereunder within ten (10) days after the same shall become due (all of which monetary obligations of Tenant shall bear interest at the highest rate allowable by law, not to exceed 18% per annum from the date due until paid); provided, however, that Tenant shall not be in default with respect to the first two (2) monetary payments received after such ten (10) day period in any Lease Year until five (5) days after Tenant’s receipt of written notice of such late payment; or (ii) defaults in the performance of any of the covenants, terms or provisions of this Lease (other than the payment, when due, of any of Tenant’s monetary obligations hereunder) or any of the Rules and Regulations now or hereafter established by Landlord to govern the operation of this Building and fails to cure such default within thirty (30) days after written notice thereof from Landlord; or (iii) abandons the Premises or fails to keep the Premises continuously and uninterruptedly open for business; or (iv) files a voluntary petition in bankruptcy, or any similar petition seeking relief under any present or future federal, or other bankruptcy or insolvency statue or law; or if a proceeding under any present or future federal, state or other bankruptcy or insolvency statute or law shall be filed against Tenant or any asset of Tenant, and such proceeding shall not have been dismissed or vacated within sixty (60) days of the date of such filing; or (v) makes an assignment for the benefit of its creditors. Upon the occurrence of an Event any of Default by Tenantthe above events, then Landlord shall be entitled to Landlord, at its option, may pursue any one or more of the following remediesremedies without any notice or demand whatsoever:
(a) Terminate Landlord, at its option, may at once, or at any time thereafter, terminate this Lease by giving written notice of termination to Tenant, in which event whereupon this Lease shall end. Upon such termination by Landlord, Tenant shall immediately will at once surrender possession of the Premises to Landlord. If Tenant fails to so surrender Landlord and remove all of Tenant’s effects therefrom, and Landlord may forthwith re-enter the PremisesPremises and repossess itself thereof, then and remove all persons and effects therefrom, using such force as may be necessary but without disturbing the peace, without being guilty of trespass, forcible entry, detainer or other tort.
(b) Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damagesterminating this Lease, re-enter upon and take possession of the Premises without trespass and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, without being liable for prosecution or any claim for damages therefor, and, if Landlord so elects, make such alterations and repairs as, in accordance with applicable law; or
(b) Landlord Landlord’s judgement, may re-enter and take possession of be necessary to relet the Premises without terminating the Lease in accordance with applicable lawPremises, and relet the Premises or any part thereof for such rent and apply for such period of time and subject to such terms and conditions as Landlord may deem advisable and receive the Rent rent therefor. Upon each such reletting, the rent received by Landlord in respect of such reletting shall be applied first to the account payment of Tenantany indebtedness other than rent due hereunder from Tenant to Landlord, including interest thereon; second, to the payment of any loss and expenses of such reletting, including brokerage fees, attorneys’ fees and the cost of such alterations and repair; third, to the payment of rent due and unpaid hereunder, together with interest thereon as herein provided; and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. Tenant agrees to pay to Landlord, on demand, any deficiency that may arise by reason of such reletting. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such prior default.
(c) In the event Landlord so shall re-enters enter the Premises and/or terminate this Lease in accordance with the provisions of this Article 16, Landlord may, in addition to any other remedy it may have, recover from Tenant all damages and takes possession expenses Landlord may actually suffer or incur by reason of Tenant’s default hereunder, including without limitation, the cost of recovering the Premises and reasonable attorney fees. Tenant agrees that actual damages to Landlord resulting from Landlord’s exercise of the remedies set forth in paragraphs (a) or (b) above, will be difficult to ascertain, and therefore, after a default of Tenant hereunder, Tenant shall also pay to Landlord “Liquidated Damages” for the failure of Tenant to observe and perform the covenants of this Lease, which at the election of Landlord, shall be either: (A) the sum of (x)(i) the minimum monthly rent, plus (ii) the Additional Rent payable hereunder for the month immediately preceding such failure to operate, re-entry or termination, less (y) the net amount, if any, of the rents collected on account of the lease or leases of the Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease, all of which sums shall become due and payable by Tenant to Landlord upon the first day of each calendar month during the otherwise unexpired portion of the team hereof; or (B) the whole of said Liquidated Damages calculated under clause (A) multiplied by the number of months then remaining in the lease term, discounted to present value at a rate of six percent (6%) per annum as set forth aboveof the date of termination or re-entry by Landlord; provided, however, that in the event Landlord agrees to use reasonable efforts to shall relet the Premises for a commercially reasonable rate at and the time rent received by Landlord in respect of such reletting. No reletting together with the discounted Liquidated Damages paid by Tenant, less the costs and expenses inured by Landlord is considered in such reletting, shall exceed the rent resented hereunder for that period which would otherwise have constituted the remainder of the term hereof, then Landlord shall, upon the expiration of the period which would have constituted the term of this Lease, refund to Tenant the lesser of the amount of such excess or the discounted Liquidated Damages theretofore paid by Tenant.
(d) If the rent agreed to be paid, including all other sums of money which under the provisions hereto are declared to be rent, shall be in arrears in whole or in part for ten (10) or more days, Landlord may at its option (if such arrearage remains unpaid after ten (10) days’ written notice to Tenant) declare the tenancy hereunder converted into a tenancy from month to month, and upon giving written notice to Tenant of the exercise of such option, Landlord shall forthwith be entitled to all provisions of law relating to the summary eviction of monthly tenants in default in rent. In addition to all other remedies provided for in this Article 16, in order to secure Tenant’s obligations under this Lease, Landlord shall have a security interest in all tangible personal property of Tenant on or about the Premises to the extent of all monies owed by Tenant to Landlord's own account unless , including but not limited to, inventory, furniture, trade fixtures, equipment, etc., and all such property shall, at Landlord’s option, become the property of Landlord has notified in the event Tenant fails to cure a default under this Lease within any period for notice and cure provided for herein. Tenant agrees, upon the request of Landlord, to execute any and all documents which Landlord deems necessary or desirable in writing order to perfect such security interest, including but not limited to, a U.C.C.-1 financing statement and a security agreement and to pay all costs, taxes or fees incurred in recording or filing any such documents.
(e) Anything in this Lease to the contrary notwithstanding, in order to cover the extra expense involved in handling delinquent payments, Tenant shall pay a “late charge” in an amount equal to the greater of (i) 5% of any delinquent payment, or (ii) $250.00, when any installment of Base Rent (or any other amount as may be considered Additional Rental under this Lease) is paid more than ten (10) days after the due date thereof. It is hereby understood that this charge is for extra expenses incurred by the Landlord in processing the delinquency.
(f) Tenant hereby appoints as its agent to receive service of all dispossessory or other proceedings and notices thereunder and under this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender the person apparently in charge of the Premises unless Landlord so notifies at the time, and if no person then appears to be in charge of the Premises, then such service or notice may be made by attaching the same to the main entrance of the Premises, provided that, in such later event, a copy of any such proceedings or notice shall also be mailed to Tenant in writing. Notwithstanding anything to the contrary manner set forth herein, in no event shall Landlord have the right to accelerate Rent Article 33 hereof.
(unless g) Tenant shall be considered in “Habitual Default” of this Lease upon (i) Tenant’s failure, on four (4) or more than ninety occasions doing any Lease Year, to pay, when due, any installment of Base Rent, Additional Rent, or any other sum required by the terms of this Lease, or (90ii) days delinquent in Tenant’s repeated violation of, or failure to comply with, any term covenant or condition of this Lease after written notice of such violation or failure to comply has been given by Landlord to Tenant. Upon the payment occurrence of Rent or such other amounts payablean event of Habitual Default on the part of Tenant, after expiration of notice Tenant shall immediately be deemed to have released any and all cure periods hereunder). In no event shall Landlord have options or rights granted, or to be granted, to Tenant under the right to xxx Tenant for any consequential, punitive or incidental damages terms of this Lease (including, without limitation, rights of renewal, rights to terminate, or rights of first refusal).
(h) Pursuit of any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had foregoing remedies shall not been terminated) less the fair rental value preclude Landlord from pursuing any other remedies therein or at law or in equity provided, nor shall pursuit of any remedy by Landlord constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damages accruing to Landlord by reason of Tenant’s violation of any of the Premises for the corresponding periodcovenants and provisions of this Lease. The accelerated rent shall be discounted Tenant hereby waives any right to the date payable at an annual interest rate equal assert or maintain any counterclaims against Landlord in any action brought by Landlord to the prime rate as published from time to time in the Money Section obtain possession of the Wall Street JournalPremises. No act of Landlord (including, without limitation, acts of maintenance, efforts to relet the Premises, or if same is not published anymore then at the prime rate published any other actions taken by Citibank in Florida. Upon payment of the accelerated rent discounted Landlord or its agents to present value, Tenant shall be released from any and all further liability protect Landlord’s interests under this Lease) other than a written notice of termination, shall terminate this Lease. The acceptance of keys to the Premises by Landlord, its agents, employees, contractors or other persons on Landlord’s behalf shall not be deemed or constitute to effect a termination of this Lease unless such early termination is evidenced by a written instrument signed by Landlord.
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Landlord’s Remedies Upon Default. Upon the occurrence of an Event of Default by Tenant, then Landlord shall be entitled to the following remedies:
(a) Terminate Landlord may terminate this Lease by giving written notice of termination to Tenant, in which event Tenant shall immediately surrender the Premises premises to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damages, re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time lime of such reletting. No reletting by Landlord is considered to be for Landlord's ’s own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's ’s surrender of the Premises or a release of Tenant’s obligation to pay Rent and all other charges payable hereunder (which obligation Tenant agrees shall continue), unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event .
(c) Landlord shall Landlord have the right to accelerate the Rent (unless and other amounts payable hereunder should Tenant shall be become more than ninety two (902) days months delinquent in the payment of Rent or such other amounts payable, after the expiration of notice and all cure periods hereunder). In no event Landlord shall Landlord have the right to xxx sxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the RentRent or such other charges due hereunder, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if the same is not published anymore published, then at the prime rate published by Citibank Bank of America in FloridaNevada. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Lease.
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Landlord’s Remedies Upon Default. Upon In the occurrence event Tenant shall default in the payment, when due, of any installment of Rent or other charges or monetary obligations to be paid by Tenant hereunder and fails to cure said default within ten (10) days after written notice thereof from Landlord; or if Tenant shall default in performing any of the covenants, terms or provisions of this Lease (other than the payment, when due, of any of Tenant's monetary obligations hereunder) and fails to cure such default within thirty (30) days after written notice thereof from Landlord; or if Tenant shall abandon the Demised Premises; or if Tenant is adjudicated as bankrupt; or if a permanent receiver is appointed for Tenant's property; or if, whether voluntarily or involuntarily, Tenant takes advantage of any debtor relief proceedings under any present or future law, whereby the Rent or any part thereof, is or is proposed to be, reduced or payment thereof deferred; or if Tenant makes an Event assignment for the benefit of Default by creditors; or if Tenant's property or effects should be levied upon or attached under process against Tenant; then, then Landlord shall be entitled to and in any of said events, Landlord, at its option may pursue any one or more of the following remedies:remedies without any notice or demand whatsoever.
(a) Terminate Landlord, at its option, may at once, or at any time thereafter terminate this Lease by giving written notice of termination to Tenant, in which event whereupon this Lease shall end. Upon such termination by Landlord, Tenant shall immediately will at once surrender possession of the Demised Premises to Landlord. If Tenant fails Landlord and remove all of Tenant's effects therefrom, and Landlord may forthwith re-enter the Demised Premises and repossess himself thereof, and remove all persons and effects therefrom, using such force as may be necessary to so surrender the Premisesextent permitted by applicable law, then without being guilty of trespass, forcible entry, detainer or other tort; and/or
(b) Landlord may, with or without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damagesterminating this Lease, re-enter upon and take possession of the Demised Premises without trespass and expel or remove Tenant and any other person who may be occupying the Demised Premises or any part thereof, without being liable for prosecution or any claim for damages therefor, and, if Landlord so elects, make such alterations and repairs as, in accordance with applicable law; or
(b) Landlord Landlord's judgment, may re-enter and take possession of be necessary to relet the Premises without terminating the Lease in accordance with applicable lawDemised Premises, and relet the Demised Premises and apply any part thereof for such Rent and for such period of time and subject to such terms and conditions as Landlord may deem advisable and receive the Rent therefor. Upon each such reletting, all Rent received by Landlord from such reletting shall be applied first to the account payment of Tenantany indebtedness other than Rent due hereunder from Tenant to Landlord; second, to the payment of any loss and expenses of such reletting, including brokerage fees, attorneys' fees and the cost of such alterations and repairs; third, to the payment of Rent due and unpaid hereunder; and the residue, if any, shall be held by Landlord and applied in payment of future Rent as the same may become due and payable hereunder; provided, however, that any excess Rent remaining at the expiration or other termination of this Lease shall be the property of Landlord and Tenant hereby relinquishes any claim thereto. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord Tenant agrees to use reasonable efforts pay to relet the Premises for a commercially reasonable rate at the time Landlord, on demand, any deficiency that may arise by reason of such reletting. No Notwithstanding any such reletting without termination, Landlord may, at any time thereafter, elect to terminate this Lease for such prior default; and/or
(c) As agent of Tenant, Landlord may do whatever Tenant is obligated to do by the provisions of this Lease and may enter the Demised Premises by force, if necessary, to the extent permitted by applicable law, without being liable to prosecution or any claims for damages therefor, in order to accomplish this purpose. Tenant agrees to reimburse Landlord immediately upon demand for any expenses which Landlord may incur in thus effecting compliance with this Lease on behalf of Tenant, and Tenant further agrees that Landlord shall not be liable for any damages resulting to Tenant from such action, whether caused by the negligence of Landlord or otherwise. Pursuit of any of the foregoing remedies shall not preclude Landlord from pursuing any other remedies herein or at law or in equity provided, nor shall pursuit of any remedy by Landlord is considered constitute a forfeiture or waiver of any Rent due to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is hereunder or of any damages accruing to be considered an acceptance Landlord by reason of Tenant's surrender violation of any of the Premises covenants and provisions of this Lease; unless Landlord so notifies Tenant in writing. Notwithstanding anything the provision of this Lease from which said remedy arises specifically recites that said remedy shall be exclusive and then only to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent extent Landlord's other remedies are waived or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leaserestricted.
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Landlord’s Remedies Upon Default. Upon A. Following the occurrence of any Event of Default, the Landlord may exercise any one or more of the following remedies, in addition to all other remedies provided in this Lease and by law or in equity:
1. Landlord may perform, on behalf and at the expense of Tenant, any obligation of Tenant under this Lease which Tenant has failed to perform and of which (except in an emergency) Landlord shall have given Tenant notice, the cost of which performance by Landlord, together with interest thereon at the Interest Rate from the date of such expenditure, shall be deemed additional rent and shall be payable by Tenant to Landlord upon demand;
2. Upon expiration of any Grace Period, Landlord may terminate this Lease by delivering notice to Tenant, whereupon this Lease and the term and estate hereby granted shall expire and terminate and all rights of the Tenant under this Lease shall expire and terminate, but the Tenant shall remain liable for damages as hereinafter set forth. Notwithstanding the foregoing, the Landlord may institute dispossess proceedings for non-payment of rent, or other proceedings to enforce the payment of rent without giving the notice of termination.
3. Whether before or after a termination as provided in (2), above, Landlord, without further notice and with no liability to Tenant, may repossess the Premises, by summary proceedings, ejectment or otherwise, and may remove Tenant and all other persons and all property from the Premises.
4. Landlord may exercise any and all other legal and/or equitable rights or remedies which it may have.
B. In the event of termination or repossession following an Event of Default Default, Tenant shall pay to Landlord all Base Rental and Additional Rent (including, but not limited to, the reasonable attorneys' fees incurred by Landlord in the enforcement of its rights with respect to such Default) due through the earlier of the date of termination or repossession. Further Tenant, then Landlord shall be entitled with respect to that period of time beginning on the following remedies:
(a) Terminate this Lease by giving written notice day after the date of such termination or repossession and continuing through the end of what would have been the Term in the absence of termination to Tenant, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Premises and whether or arrearages in rent or other damages, re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying not the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may have been re-enter and take possession of the Premises without terminating the Lease in accordance with applicable lawlet, is liable to Landlord for, and relet shall pay to Landlord, as liquidated and agreed "Current Damages" (and not as a penalty) for the Premises Event of Default:
1. the Base Rental and apply the Additional Rent received to the account of Tenant. In the event Landlord so payable by Tenant or which would be payable if this Lease had not terminated, plus all Landlord's expenses in connection with any re-enters and takes possession of the Premises as set forth aboveletting, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, repossession costs, brokerage commissions, alteration costs, expenses of preparation for such re-letting, and reasonable attorneys' fees; less
2. the net proceeds, if any, of any claims for lost profits and/or lost business opportunity)re-letting on account of Tenant pursuant to this Article. If Landlord does accelerate the RentPremises have been re-let with additional premises and/or have been re-let for a term which extends beyond the end of what would have been the Term for the same in the absence of termination, then the accelerated rent net proceeds, if any, of re-letting shall be prorated. Tenant shall pay Current Damages to Landlord monthly on the days on which the Base Rental and Additional Rent would have been payable if the Lease were not terminated, and Landlord is entitled to recover the same from Tenant each month.
C. After termination, as described above, whether or not Landlord has collected Current Damages, Tenant shall pay to Landlord, on demand, as liquidated and agreed "Final Damages" (and not as a penalty) for the Event of Default and in lieu of all Current Damages beyond the date of demand, an amount equal to the Rent payable over present cash value on the balance date of demand of the Lease Base Rental and Additional Rent which would have been payable from the date of demand for what would have been the unexpired Term (as with respect to each portion of the Premises if this Lease it had not been terminated) less , minus the present cash value of the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted unexpired Term, plus the Base Rental and Additional Rent due through the earlier of the date of termination or repossession, and the Current Damages up to the date payable at of demand, which remain unpaid. If any statute or rule of law governing a proceeding in which Final Damages are to be proved validly limits the Final Damages to an annual interest rate equal amount less than that provided for herein, Landlord is entitled to the prime maximum amount allowable under the statute or rule of law. The discount rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant interest shall be released from any and all further liability under this Leasesix percent (6%) per annum.
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Landlord’s Remedies Upon Default. Upon In addition to any other remedy provided under this Lease, upon the occurrence of any event of default which remains uncured for 10 business days following notice, Landlord shall have the option to pursue any one or more of the following remedies:
1. Give Tenant written notice of intent to terminate this Lease on the date of such notice or on any later date as may be specified therein, whereupon Tenant's right to possession of the Premises shall cease and this Lease, except as to Tenant's liability, shall be terminated. (At Landlord's option and in its sole discretion and if Landlord so expressly notifies Tenant in writing, Landlord may release Tenant from liability hereunder.)
(a) In the event this Lease is terminated in accordance with the provisions of this subparagraph, Tenant shall remain liable to Landlord for damages in an Event amount equal to the Rent and other sums which would have been owing by Tenant hereunder for the balance of Default the Term had this Lease not been terminated, less the net proceeds, if any, of any reletting of the Premises by TenantLandlord subsequent to such termination, then after deducting all Landlord's reasonable expenses including, without limitation, all repossession costs, brokerage commissions, legal expenses, attorney's fees, expenses of employees, alteration and repair costs and expenses of preparation for such reletting. Landlord shall be entitled to collect such damages from Tenant monthly on the following remedies:days on which the Rent and other charges would have been payable hereunder if this Lease had not been terminated.
(b) Alternatively, at the option of the Landlord, in the event this Lease is so terminated, Landlord shall be entitled to recover forthwith against Tenant as damages for loss of the bargain and not as a penalty, the total Base Rent, with adjustments, to the expiration of the original term of the Lease.
(a) Terminate this Lease by giving written notice of termination to Tenant, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damages, reRe-enter and take possession of the Premises without trespass or any part thereof, and repossess the same and expel or remove Tenant and those claiming through and under Tenant, and remove the effects of both or either, using such force for such purposes as may be necessary, without being liable for prosecution thereof, without being deemed guilty of any other person occupying manner of trespass, and without prejudice to any remedies for arrears of Rent or preceding breach of covenants or conditions. Should Landlord elect to re-enter as provided in this subparagraph, or should Landlord take possession pursuant to legal proceedings or pursuant to any notice provided for by law, Landlord may, from time to time, without terminating this Lease, relet the Premises or any part thereof in Landlord's or Tenant's name, but for the account of Tenant, for such Term or Terms (which may be greater or less than the period which would otherwise have constituted the balance of the Term of this Lease) and on such conditions and upon other Terms (which may include concessions of free Rent and alterations and repair of the Premises) as Landlord, in its sole discretion, may determine, and Landlord may collect and receive the Rents therefor. Landlord shall in no way be responsible or liable for any failure to relet the Premises, or any part thereof, or for any failure to collect any Rent due upon such reletting, except that Tenant does not hereby waive any defense which Tenant may have for Landlord's failure to make reasonable efforts to release the Property, on such terms and conditions as Landlord sees fit. No such re-entry or taking possession of the Premises by Landlord shall be construed as an election on Landlord's part to terminate this Lease unless a written notice of such intention is given to Tenant. No notice from Landlord hereunder or under a forcible entry and detainer statute or similar law shall constitute an election by Landlord to terminate this Lease unless such notice specifically so states. Landlord reserves the right following any such re-entry and/or reletting to exercise its right to terminate this Lease by giving Tenant such written notice, in accordance with applicable law; orwhich event the Lease will terminate as specified in said notice.
(b) In the event that Landlord may re-enter does not elect to terminate this Lease but takes possession as provided for in this subparagraph, Tenant shall pay to Landlord (i) the Rent and take possession other charges as herein provided which would be payable hereunder if such repossession had not occurred, less (ii) the net proceeds, if any, of any reletting of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for after deducting all Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (reasonable expenses including, without limitation, any claims all repossession costs, brokerage commissions, legal expenses, attorney's fees, expenses of employees, alteration and repair costs and expenses of preparation for lost profits and/or lost business opportunity)such reletting. If Tenant shall pay such Rent and other sums to Landlord does accelerate monthly on the Rent, then the accelerated rent shall be an amount equal to days on which the Rent would have been payable over the balance of the Lease Term (as hereunder if this Lease possession had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leaseretaken.
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Landlord’s Remedies Upon Default. Upon Landlord shall have the occurrence following remedies if Tenant breaches or defaults on this Lease. These remedies are not exclusive but are in addition to any rights and remedies now or later allowed by law or in equity.
A. Landlord shall have the right either to terminate Tenant’s right of an Event possession to the Premises and thereby terminate this Lease or to have this Lease continue in full force and effect with Tenant at all times having the right of Default by possession to the Premises. Should Landlord elect to terminate Tenant’s right of possession to the Premises and thereby terminate this Lease, then Landlord shall have the immediate right of entry to and may remove all persons and property from the Premises. Such property so removed may be stored in a public warehouse or elsewhere at the cost and for the account of Tenant. Upon such termination Landlord, in addition to any other rights and remedies, including rights and remedies under Subparagraphs (1), (2) and (4) of Subdivision (a) of Section 1951.2 of the California Civil Code, or any amendment thereto or any successor law thereof, shall be entitled to recover from Tenant the following remedies:
worth at the time of award of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of such rental loss that the Tenant proves could be reasonably avoided. The amount Landlord may recover under Subparagraph (4) of Subdivision (a) Terminate of Section 1951.2 of the California Civil Code shall include, without limitation, the cost of recovering possession of the Premises, expenses of reletting (including advertising), brokerage commissions and fees, costs of placing the Premises in good order, condition and repair, including necessary maintenance, alteration and restoration of the Premises, attorneys’ fees, court costs, and costs incurred in the appointment of and performance by a receiver to protect the Premises or Landlord’s interest under this Lease. The worth at the time of the award of the amount referred to in Subparagraph (3) of Subdivision (a) of Section 1951.2 of the California Civil Code shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one percent (1%). The worth at the time of the award referred to in Subparagraphs (1) and (2) of Subdivision (a) of Section 1951.2 of the California Civil Code shall be computed by allowing interest at the maximum rate permitted by law. Prior to such award, Landlord may relet the Premises for the purpose of mitigating damages suffered by Landlord because of Tenant’s failure to perform its obligations hereunder.
B. Any proof by Tenant under Subparagraphs (2) or (3) of Subdivision (a) of Section 1951.2 of the California Civil Code of the amount of rental loss that could be reasonably avoided shall be made in the following manner: Landlord and Tenant shall each select a licensed real estate broker in the business of renting property of the same type and Purpose as the Premises and in the same geographic vicinity; said two real estate brokers shall select a third licensed real estate broker of similar qualifications; the two licensed real estate brokers selected by the parties shall determine the amount of rental loss that could be reasonably avoided for the balance of the Term after the time of the award. The third licensed real estate broker shall then decide which of the two brokers has made the better determination of the worth at the time of the award, and his decision shall be final and binding on the parties.
C. Should Landlord, following any breach or default of this Lease by giving written notice of termination to Tenant, elect to keep this Lease in which event full force and effect with Tenant shall immediately surrender retaining the right of possession to the Premises (notwithstanding the fact that Tenant may have vacated or abandoned the Premises), Landlord shall have the right to enforce all of its rights and remedies under this Lease or allowed by law or in equity including, but not limited to, the right to recover the installments of Rent as they become due under this Lease and all other rights provided by Section 1951.4 of the California Civil Code. Notwithstanding any such election to have this Lease remain in full force and effect, Landlord may at any time thereafter elect to terminate Tenant’s right of possession to the Premises and thereby terminate this Lease for any previous breach or default which remains uncured, or for any existing or subsequent breach or default. For purposes of Landlord. If Tenant fails ’s right to so surrender continue this Lease in effect upon Tenant’s breach or default, acts of maintenance or preservation or efforts by Landlord to relet the Premises or the appointment of a receiver on initiative of Landlord to protect its interest under this Lease do not constitute a termination of Tenant’s right of possession.
D. In the event Landlord elects, upon breach or default of this Lease by Tenant, to keep this Lease in full force and effect, Landlord may, as attorney-in-fact of Tenant, sublet the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damages, re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, from time to time and for such term, at such rent, and upon such other terms, covenants and conditions as Landlord in accordance its sole discretion may deem advisable with applicable lawthe unqualified right to make alterations, effect restoration, and perform maintenance to the Premises. Upon each such subletting (i) Tenant shall be immediately liable to pay to Landlord, in addition to Tenant’s indebtedness to Landlord other than Rent due hereunder, the costs of such subletting and of such alterations, restoration and maintenance incurred by Landlord, and the amount by which the Rent hereunder for the period of such subletting (to the extent such period does not exceed the Term hereof) exceeds the amount agreed to be paid as Rent for the Premises for the period of such subletting, or (ii) at the option of Landlord, rents received from such subletting shall be applied: first, to the payment of Tenant’s indebtedness to Landlord other than Rent due hereunder; or
(b) second, to the payment of costs of such subletting and of such alterations, restoration and maintenance; third, to the payment of Rent due and unpaid hereunder; and fourth, the residue, if any, to be held by Landlord and applied in payment of future Rent as the same becomes due hereunder. If Tenant has been credited with any rent to be received by such subletting and such rent is not promptly paid to Landlord by the subtenant(s), or if such rent received from such subletting during any month is less than the Rent to be paid during that month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such deficiency shall be calculated and paid monthly on the date Rent is due and payable hereunder. No taking possession of the Premises by Landlord, as attorney-in-fact for Tenant, shall be construed as an election on Landlord’s part to terminate this Lease unless a notice of such election is given to Tenant. Notwithstanding any such subletting without termination of this Lease, Landlord may re-enter at any time thereafter elect to terminate this Lease for any previous, existing or subsequent breach or default. At Landlord’s option and application, a receiver for Tenant shall be appointed to take possession of the Premises without terminating the Lease in accordance with applicable lawPremises, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of exercise Landlord’s right to sublet the Premises as set forth aboveattorney-in-fact for Tenant, Landlord agrees and to use reasonable efforts to relet apply any rent collected from the Premises as provided herein.
E. Nothing in this paragraph shall affect the right of Landlord hereunder to indemnification for a commercially reasonable rate at liability arising prior to the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender termination of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything Lease for damage to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless person or property.
F. If Tenant shall be more than ninety (90) days delinquent in default in the performance of any term, covenant or condition to be performed by it under this Lease, then, after notice and without waiving or releasing Tenant from the performance of such term, covenant or condition, Landlord may, but shall not be obligated to, perform the same, and, in exercising any such right, may pay necessary and incidental costs and expenses in connection therewith. All sums so paid by Landlord, together with interest thereon at the maximum rate of interest allowed by law, shall be deemed Additional Rent hereunder and shall be payable to Landlord by Tenant on the next rent-paying day.
G. Rent not paid when due shall bear interest, in addition to any late charge provided hereunder, at the maximum rate of interest allowed by law from the date due until paid.
H. No security or guaranty which may now or hereafter be furnished Landlord for the payment of the Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx for performance by Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if other terms, covenants or conditions of this Lease had not been terminated) less shall in any way be a bar or defense to any action in unlawful detainer, for the fair rental value recovery of the Premises Premises, or to any action which Landlord may at any time commence for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section a breach of any of the Wall Street Journalterms, covenants or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment conditions of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Lease.
I. IF ANY ACTION OR PROCEEDING BETWEEN LANDLORD AND TENANT TO ENFORCE THE PROVISIONS OF THIS LEASE (INCLUDING AN ACTION OR PROCEEDING BETWEEN LANDLORD AND THE TRUSTEE OR DEBTOR IN POSSESSION WHILE TENANT IS A DEBTOR IN A PROCEEDING UNDER ANY BANKRUPTY LAW) PROCEEDSTO TRIAL, LANDLORD AND TENANT HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY IN SUCH TRIAL. LANDLORD AND TENANT HEREBY AGREE THAT THIS PARAGRAPH CONSTITUTES A WRITTEN CONSENT TO WAIVER OF TRIAL BY JURY WITHIN THE MEANING OF CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 631(A)(2), AND TENANT DOES HEREBY AUTHORIZE AND EMPOWER LANDLORD TO FILE THIS PARAGRAPH AND/OR LEASE, AS REQUIRED, WITH THE CLERK OR JUDGE OF ANY COURT OF COMPETENT JURISDICTION AS A WRITTEN CONSENT TO WAIVER OF JURY TRIAL.
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Landlord’s Remedies Upon Default. Upon Landlord shall have the occurrence following remedies if Tenant commits a default. These remedies are not exclusive but are in addition to any remedies now or later allowed by law.
A. Landlord shall have the right either to terminate Tenant’s right to possession of an Event the Premises and thus terminate this Lease or to have this Lease continue in full force and effect with Tenant at all times having the right to possession of Default by the Premises. Should Landlord elect to terminate Tenant’s right to possession of the Premises and terminate this Lease, then Landlord shall have the immediate right of entry and may remove all persons and property from the Premises. The property so removed may be stored in a public warehouse or elsewhere at the cost and for the account of Tenant. Upon such termination, Landlord, in addition to any other rights and remedies, shall be entitled to recover from Tenant the worth at the time of award of the amount by which the unpaid rent for the balance of the Term of this Lease after the time of award exceeds the amount of such rental loss that the Tenant could have reasonably avoided. The worth at the time of award of the amount referred to in this Section shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of Kansas City at the time of the award plus 2%. Prior to such award, Landlord may re-let the Premises for the purpose of mitigating damages suffered by Landlord because of Tenant’s failure to perform Tenant’s obligations under this Lease.
B. Any proof of Tenant of the amount of rent loss that could have reasonably been avoided shall be made in the following remedies:manner: Landlord and Tenant shall each select a licensed real estate broker in the business of renting property of the same type and use as the Premises and in the same geographic vicinity. The two real estate brokers shall select a third licensed real estate broker, and the three licensed real estate brokers so selected shall determine the amount of rent loss that could have been reasonably avoided for the balance of the Term of this Lease after the time of award. The decision of the majority of the licensed real estate brokers shall be final and binding upon the parties to this Lease.
(a) Terminate C. As used in this Lease, the term “time of award” shall mean either the date upon which Tenant pays to Landlord the amount recoverable by Landlord as set forth in this Lease or the date of entry of any determination, order, or judgment of any court, or other legally constituted body, or any arbitrators determining the amount recoverable, whichever occurs first.
D. Should Landlord, following any breach or default of this Lease by giving written notice of termination to Tenant, elect to keep this Lease in which event Tenant shall immediately surrender the Premises full force and effect, for so long as Landlord does not terminate Tenant’s right to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Premises (in spite of the fact that Tenant may have abandoned the Premises), then Landlord, in addition to all other rights and remedies that Landlord may have at law or arrearages in rent equity, shall have the right to enforce all of Landlord’s rights and remedies under this Lease. In spite of any such election to have this Lease remain in full force and effect, Landlord may at any later time elect to terminate Tenant’s right to possession of the Premises and thus terminate this Lease for any previous breach or other damagesdefault which remains uncured, or for any subsequent breach or default. For the purposes of Landlord’s right to continue this Lease in effect upon Tenant’s breach or default, Landlord’s acts to maintain or preserve the Premises, or to re-enter let them, or to seek the appointment of a receiver to protect its interest under this Lease shall not constitute a termination of Tenant’s right to possession.
E. In the event Landlord elects, upon breach or default of this Lease by Tenant, to keep this Lease in full force and effect, Landlord may, as attorney-in-fact of Tenant, from time to time sublet the Premises or any part of it for such Term and at such rent and upon such other terms as Landlord in Landlord’s sole discretion may deem advisable. Upon each such subletting, (1) Tenant shall be immediately liable to pay to Landlord, in addition to indebtedness other than rent due under this Lease, the cost of such subletting and any reasonably necessary alterations and repairs, incurred by Landlord, and the amount by which the rent under this Lease for the period of such subletting (to the extent such period does not exceed the Term of this Lease) exceeds the amount agreed to be paid as rent for the Premises for the period of subletting, or (2) at the option of Landlord, rents received from the subletting shall be applied: first, to payment of indebtedness other than rent due under this Lease from Tenant to Landlord; second, to the payment of costs of the subletting and of any reasonably necessary alterations and repairs; third, to payment of rent due and unpaid under this Lease; and the residue, if any, shall be held by Landlord and applied in payment of future rents as they become due under this Lease. If Tenant has been credited with any rent to be received by the subletting under option (1) and the rent has not been promptly paid to Landlord by the subtenant, or if the rent received from the subletting under option (2) during any month is less than that to be paid during that month by Tenant under this Lease, then Tenant shall pay any such deficiency to Landlord. The deficiency shall be calculated and paid monthly. No taking possession of the Premises by Landlord, as attorney-in-fact for Tenant, shall be construed as an election on its part to terminate this Lease unless a written notice of such intention is given to Tenant. In spite of any such subletting without termination, Landlord may at any later time elect to terminate this Lease for such previous breach. At Landlord’s option and application, a receiver for Tenant shall be appointed to take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of exercise Landlord’s right to sublet the Premises as set forth above, Landlord agrees attorney-in-fact for Tenant and to use reasonable efforts to relet apply any rent collected from the Premises as provided in this Lease.
F. Nothing in this section affects the right of Landlord to indemnification for a commercially reasonable rate at liability arising prior to the time termination of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no for personal injuries or property damage where this Lease provides for such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless indemnification.
G. If Tenant shall be more than ninety (90) days delinquent in default in the payment performance of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right any covenant to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability performed under this Lease, then, after notice and without waiving or releasing Tenant from the performance of the covenant, Landlord may, but shall not be obligated to, perform any such covenant, and in exercising any such right pay necessary and incidental costs and expenses in connection with it. All sums so paid by Landlord, together with interest on it at the maximum rate of interest per annum allowed by law, shall be deemed additional rental and shall be payable to Landlord on the next rent-paying day.
H. Rent not paid when due shall bear interest at the maximum rate of interest per annum allowed by law from the date due until paid.
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Samples: Lease (Aratana Therapeutics, Inc.)
Landlord’s Remedies Upon Default. Upon Landlord shall have the occurrence following remedies if Tenant commits a default. These remedies are not exclusive but are in addition to any remedies now or later allowed by law.
A. Landlord shall have the right either to terminate Tenant's right to possession of an Event the Premises and thereby terminate this Lease or to have this Lease continue in full force and effect with Tenant at all times having the right to possession of Default by the premises. Should Landlord elect to terminate Tenant's right to possession of the Premises and terminate this Lease, then Landlord shall have the immediate right of entry and may remove all persons and property from the Premises. Such property so removed may be entitled stored in a public warehouse or elsewhere at the cost and for the account of Tenant. The Landlord may relet the premises for the purpose of mitigating damages suffered by Landlord because of Tenant's failure to perform Tenant's obligations under this Lease.
B. Any proof of Tenant of the amount of rent loss that could be reasonably avoided shall be made in the following remedies:manner: Landlord and Tenant shall each select a licensed real estate broker in the business of renting commercial property of the same type and use as the Premises, and in the same geographic vicinity; such two (2) real estate brokers shall select a third (3rd) licensed real estate broker; and the three (3) licensed real estate brokers so selected shall determine the amount of rent loss that could be reasonably avoided for the balance of the Term of this Lease after the time of award. The decision of the majority of such licensed real estate brokers shall be final and binding upon the parties to this Agreement.
(a) Terminate C. Should Landlord, following any breach or default of this Lease by giving written notice of termination to Tenant, elect to keep this Lease in which event full force and effect, for so long as Landlord does not terminate Tenant's right to possession of the Premises, notwithstanding the fact that Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender may have abandoned the Premises, then Landlord, in addition to all other rights and remedies which Landlord maymay have at law or in equity, without prejudice shall have the right to enforce all of Landlord's rights and remedies under this Lease. Notwithstanding any other remedy it has for such election to have this Lease remain in full force and effect, Landlord may at any time thereafter elect to terminate Tenant's right to possession of the Premises and thereby terminate this Lease for any previous breach or arrearages default which remains uncured, or for any subsequent breach or default. For the purposes of Landlord's right to continue this Lease in effect upon Tenant's breach or default, act of maintenance or preservation, or efforts of Landlord to relet the property, or the appointment of a receiver on initiative of Landlord to protect its interest under this Lease, does not constitute a termination of Tenant's right to possession.
D. In the event Landlord elects, upon breach or default of this Lease by Tenant, to keep this Lease in full force and effect, Landlord may, as attorney-in-fact of Tenant, from time to time sublet the Premises or any part of it for such term and at such rent and upon such other terms as Landlord in Landlord's sole discretion may deem advisable, with the right to make alterations, restoration, and maintenance to the Premises. Upon each such subletting, (1) the Tenant shall be immediately liable to pay to Landlord, in addition to indebtedness other than rent due under this Lease, the cost of such subletting and of such alterations and repairs incurred by Landlord, and the amount by which the rent under this Lease for the period of such subletting (to the extent such period does not exceed the term of this Lease) exceeds the amount agreed to be paid as rent for the Premises for such period of such subletting, or (2) at the option of Landlord, rents received from such subletting shall be applied: first, to payment of indebtedness other damagesthan rent due under this Lease from Tenant to Landlord; second, reto the payment of costs of such subletting and of such alterations and repairs; third, to payment of rent due and unpaid under this Lease; and the residue, if any, shall be held by Landlord and applied in payment of future rents as they become due under this Lease. If Tenant has been credited with any rent to be received by such subletting under option (1) and such rent shall not be promptly paid to Landlord by the subtenant, or if such rent received from such subletting under option (2) during any month be less than that to be paid during that month by Tenant under this Lease, Tenant shall pay any such deficiency to Landlord. Such deficiency shall be calculated and paid monthly. No taking possession of the Premises by Landlord, as attorney-enter in-fact for Tenant, shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Tenant. Notwithstanding any such subletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. At Landlord's option and application, a receiver for Tenant shall be appointed to take possession of the Premises without trespass and expel or remove to exercise Landlord's right to sublet the premises as attorney-in-fact for Tenant and to apply any other person occupying rent collected from the Premises or any part thereof, premises as provided in accordance with applicable law; orthis lease.
(b) Landlord may re-enter and take possession E. Nothing in this section affects the right of the Premises without terminating Landlord to indemnification for liability arising prior to the termination of the Lease in accordance with applicable law, and relet for personal injuries or property damage where the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises Lease provides for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless indemnification.
F. If Tenant shall be more than ninety (90) days delinquent in default in the payment performance of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right any covenant to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published performed by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability it under this Lease, then, after notice and without waiving or releasing Tenant from the performance of such covenant, Landlord may, but shall not be obligated to, perform any such covenant, and in exercising any such right pay necessary and incidental costs and expenses in connection with it. All sums so paid by Landlord, together with interest on it at the maximum rate of interest per year allowed by law, shall be deemed additional rental and shall be payable to Landlord on the next rent-paying day.
G. Rent not paid when due shall bear interest at the maximum rate of interest per year allowed by law from the date due until paid.
Appears in 1 contract
Samples: Lease (Yardville National Bancorp)
Landlord’s Remedies Upon Default. Upon the occurrence A breach of an Event of Default this Lease by Tenant, then Landlord if not cured as may be provided herein or by law, shall be entitled a default. Landlord has the following remedies if Tenant defaults on this Lease. These remedies are not exclusive but are in addition to any rights and remedies now or later allowed by law or in equity.
A. Landlord may either terminate Tenant’s right of possession to the following remedies:
(a) Terminate Premises, thereby terminating this Lease, or have this Lease by giving written notice continue in full force and effect with Tenant having the right of termination possession to Tenant, in which event Tenant shall immediately surrender the Premises to LandlordPremises. If Tenant fails Landlord elects to so surrender terminate Tenant’s right of possession to the Premises, then Landlord maywill have the immediate right of entry to and may remove all persons and property from the Premises. Such property so removed may be stored in a public warehouse or elsewhere at the cost and for the account of Tenant. Upon such termination Landlord, without prejudice in addition to any other remedy it has rights and remedies, including rights and remedies under Subparagraphs (1), (2) and (4) of Subdivision (a) of Section 1951.2 of the California Civil Code, or any amendment to or any successor law of that section, will be entitled to recover from Tenant the worth at the time of award of the amount by which the unpaid Rent for the balance of the Term after the time of the, award exceeds the amount of such rental loss that the Tenant proves could be reasonably avoided. The amount Landlord may recover under Subparagraph (4) of Subdivision (a) of Section 1951.2 of the California Civil Code will include, without limitation, the cost of recovering possession of the Premises, expenses of reletting (including advertising), brokerage commissions and fees, costs of placing the Premises in good order, condition and repair, including necessary maintenance and restoration of the Premises, attorneys’ fees, court costs and costs incurred in the appointment of and performance by a receiver to protect the Premises or arrearages in rent or other damages, re-enter and take possession Landlord’s interest under this Lease. The worth at the time of the Premises without trespass award of the amount referred to in Subparagraph (3) of Subdivision (a) of Section 1951.2 of the California Civil Code will be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one percent (1%). The worth at the time of the award referred to in Subparagraphs (1) and expel or remove Tenant and any other person occupying (2) of Subdivision (a)f of Section 1951.2 of the California Civil Code will be computed by allowing interest at the maximum rate permitted by law. Prior to such-award, Landlord may relet the Premises for the purpose of mitigating damages suffered by Landlord because of Tenant’s failure to perform its obligations hereunder.
B. Any proof by Tenant under Subparagraphs (2) or (3) of Subdivision (a) of Section 1951.2 of the California Civil Code of the amount of rental loss that could be reasonably avoided will be made in the following manner: Landlord and Tenant will each select a licensed real estate broker in the business of renting property of the same type and Purpose as the Premises and in the same geographic vicinity; these two brokers will select a third licensed real estate broker of similar qualifications; the two brokers selected by the parties will determine the amount of rental loss that could be reasonably avoided for the balance of the Term after the time of the award. The third broker will then decide which of the two brokers has made the better determination of the worth the time of the award, and his decision will be final and binding on the parties.
C. If Landlord elects to keep this Lease in full force and effect with Tenant retaining the right of possession to the Premises (notwithstanding the fact that Tenant may have vacated or abandoned the Premises), Landlord may enforce all of its rights and remedies under this Lease or allowed by law or in equity including, but not limited to, the right to recover the installments of Rent as they become due under this Lease; additionally, the Landlord has the remedy described in California Civil Code Section 1951.4 (lessor may continue lease in effect after lessee’s breach and abandonment and recover rent as it becomes due, if lessee has right to sublet or assign, subject only to reasonable limitations). Notwithstanding any such election to have this Lease remain in full force and effect, Landlord may at any time thereafter elect to terminate Tenant’s right of possession to the Premises, thereby terminating this Lease, for any previous breach or default which remains uncured, or for any existing or subsequent breach or default. For purposes of Landlord’s right to continue this Lease in effect upon Tenant’s breach or default, acts of maintenance or preservation or efforts by Landlord to relet the Premises or the appointment of a receiver on initiative of Landlord to protect its interest under this Lease do not constitute a termination of Tenant’s right of possession.
D. If Landlord elects to keep this Lease in full force and effect, Landlord may, as attorney-in-fact of Tenant sublet the Premises, or any part thereof, from time to time and for such tenant, at such rent, and upon such other terms, covenants and conditions as Landlord in accordance its sole discretion may deem advisable with applicable lawthe unqualified right to make alterations, effect restoration, and perform maintenance to the Premises. Upon each such subletting (i) Tenant will be responsible for, in addition to Tenant’s indebtedness to Landlord other than Rent due hereunder, the costs of such subletting and of such alterations, restoration and maintenance incurred by Landlord (except, as to alterations or restoration, if the alterations or restoration exceed building standard, Tenant is not responsible for the portion of such costs that exceed building standard unless previously approved by Tenant), and the amount by which the Rent hereunder for the period of such subletting (to the extent such period does not exceed the Term hereof) exceeds the amount agreed to be paid as Rent for the Premises for the period of such subletting, or (ii) at the option of Landlord, rents received from such subletting will be applied: first, to the payment of Tenant’s indebtedness to Landlord other than Rent due hereunder; or
(b) second, to the payment of costs of such subletting and of such alterations, restoration and maintenance; third, to the payment of Rent due and unpaid hereunder; and fourth, the residue, if any, to be held by Landlord and applied in payment of future Rent as the same becomes due hereunder. If Tenant has been credited with any rent to be received by such subletting and such rent is not promptly paid to Landlord by the subtenant(s), or if such rent received from such subletting during any month is less than the Rent to be paid during that month by Tenant hereunder, Tenant will pay any such deficiency to Landlord. Such deficiency will be calculated and paid monthly on the date Rent is due and payable hereunder. No taking possession of the Premises by Landlord, as attorney-in-fact for Tenant, will be construed as an election on Landlord’s part to terminate this Lease unless a notice of such election is given to Tenant. Notwithstanding any such subletting without termination of this Lease, Landlord may re-enter at any time thereafter elect to terminate this Lease for any previous, existing or subsequent breach or default. At Landlord’s option and application a receiver for Tenant will be appointed to take possession of the Premises without terminating the Lease in accordance with applicable lawPremises, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of exercise Landlord’s right to sublet the Premises as set forth aboveattorney-in-fact for Tenant, and to apply any rent collected from the Premises as provided herein.
E. Nothing in this paragraph affects Landlord’s right to indemnification for liability arising prior to the termination of the Lease for damage to person or property.
F. If Tenant is in default in the performance of any term, covenant or condition to be performed by it under this Lease, then, after notice and without waiving or releasing Tenant from the performance of such term, covenant or condition, Landlord agrees to use reasonable efforts to relet may, but will not be obligated to, perform the Premises for a commercially reasonable rate same, and, in exercising any such right, may pay necessary and incidental costs and expenses in connection therewith. All sums so paid by Landlord, together with interest thereon at the time maximum rate of such reletting. No reletting interest allowed by law, will be deemed Additional Rent hereunder and will be payable to Landlord is considered to be for Landlord's own account unless Landlord has notified by Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of on the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth hereinnext rent-paying day.
G. Rent not paid when due bears interest, in no event shall addition to any late charge provided hereunder, at the maximum rate of interest allowed by law from the date due until paid.
H. No security or guaranty which may now or hereafter be furnished Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in for the payment of Rent the Base Rental or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx for performance by Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if other terms, covenants or conditions of this Lease had not been terminated) less will in any way be a bar or defense to any action in unlawful detainer, for the fair rental value recovery of the Premises Premises, or to any action which Landlord may at anytime commence for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section a breach of any of the Wall Street Journalterms, covenants or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment conditions of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Lease.
Appears in 1 contract
Samples: Lease Agreement (XOOM Corp)
Landlord’s Remedies Upon Default. Upon (a) In the occurrence event Tenant shall at any time fail to make timely payment of rent or perform any of its obligations under this Lease, and Tenant shall fail to remedy such failure within fifteen (15) days after receipt of written notice thereof from Landlord if said failure relates to payment of rent, or other monetary charges under this Lease, or within thirty (30) days after receipt of written notice thereof from Landlord if the failure relates to matters other than payment of rent or other monetary charges under this Lease, (but Tenant shall not be in default of a matter other than payment of rent or other monetary charges under this Lease if it commences to remedy same within thirty (30) days after such notice and proceeds therewith with due diligence) or if Tenant shall be adjudged a bankrupt or enter into an Event arrangement for the benefit of Default by Tenantcreditors under any state or federal insolvency law and such proceedings are not dismissed or terminated within sixty (60) days after the commencement thereof, then Landlord shall be entitled to may declare the following remedies:
(a) Terminate terms of this Lease by giving written notice of termination to Tenantterminated, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for enter into possession of the Premises and xxx for all rents and damages accrued under this Lease or arrearages in rent arising out of any violation hereof, or other damages, re-enter and take Landlord may xxx without declaring this Lease void or entering into possession of the Premises without trespass and expel or remove Tenant and any other person occupying recovery of rents shall be on a monthly basis as the Premises same become due. Notwithstanding the recital of any specific remedies, Landlord shall likewise have all rights and remedies (except acceleration) to which Landlord is entitled either in law or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of equity. Notwithstanding the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as notice requirements set forth above, Landlord agrees shall not be required to use reasonable efforts to relet provide Tenant with more than two (2) fifteen-day notices during any twelve-month period for nonpayment of rent, or other charges payable by Tenant, before Landlord exercises its immediate rights upon default as set forth and permitted above.
(b) Notwithstanding any other provisions contained in this Lease, in the event (i) Tenant or its successors or assignees shall become insolvent or bankrupt, or if it or their interests under this Lease shall be levied upon or sold under execution or other legal process, or (ii) the depository institution then operating on the Premises for a commercially reasonable rate at the time of is closed, or is taken over by any depository institution supervisory authority ("Authority"), Landlord may, in either such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that event, terminate this Lease has been terminated. In additiononly with the concurrence of any Receiver or Liquidator appointed by such Authority; provided, no such reletting that in the event this Lease is to be considered an acceptance terminated by the Receiver or Liquidator, the maximum claim of Tenant's surrender Landlord for rent, damages, or indemnity for injury resulting from the termination, rejection, or abandonment of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, unexpired Lease shall by law in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over the balance of the Lease Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated all accrued and unpaid rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leasetermination.
Appears in 1 contract
Landlord’s Remedies Upon Default. Upon the occurrence of an Event of Default by Tenant, then Landlord shall be entitled to the following remedies:
(a) Terminate this Lease by giving written notice of termination to Tenant, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damages, re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Premises or any part thereof, in accordance with applicable law; or
(b) Landlord may re-enter and take possession of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, the right to accelerate the Rent and other amounts payable hereunder except as otherwise provided herein. In the event that Tenant shall be in no event default in the payment of Rent for ninety (90) consecutive days, Landlord shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable over remaining during the balance of the Lease then existing Term (as if this Lease had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent any amounts received by Landlord in mitigation thereof), which sum shall be discounted to present value utilizing the United States Treasury Xxxx rate (at the date payable at an annual interest rate equal of such acceleration) having a maturity comparable to the prime rate as published from time to time in the Money Section remaining Term of the Wall Street Journal, or if same is not published anymore then at Lease to the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leasenearest full calendar year.
Appears in 1 contract
Samples: Lease Agreement (Nationsrent Inc)
Landlord’s Remedies Upon Default. Upon In addition to any other remedy provided under this Lease, upon the occurrence of any material event of default ("a material event of default shall be a default by Tenant which is either a Monetary Default, or one which significantly effects Landlord's rights under this lease and for which Tenant has been provided notice and a reasonable opportunity to cure and has not done so"), Landlord shall have the option to pursue any one or more of the following remedies with proper notice and demand:
1. Give Tenant written notice of intent to terminate this Lease on the date of such notice or on any later date as may be specified therein, whereupon Tenant's right to possession of the Premises shall cease and this Lease, except as to Tenant's liability, shall be terminated. (At Landlord's option and in its sole discretion and if Landlord so expressly notifies Tenant in writing, Landlord may release Tenant from liability hereunder.)
(a) In the event this Lease is terminated in accordance with the provisions of this subparagraph, Tenant shall remain liable to Landlord for damages in an Event amount equal to the Rent and other sums which would have been owing by Tenant hereunder for the balance of Default the Term had this Lease not been terminated, less the net proceeds, it any, of any reletting of the Premises by TenantLandlord subsequent to such termination, then after deducting all Landlord's reasonable expenses including, without limitation, all repossession costs, brokerage commissions, legal expenses, attorney's fees, expenses of employees, alteration and repair costs and expenses of preparation for such reletting. Landlord shall be entitled to collect such damages from Tenant monthly on the following remedies:days on which the Rent and other charges would have been payable hereunder if this Lease had not been terminated.
(b) Alternatively, at the option of the Landlord, in the event this Lease is so terminated, Landlord shall be entitled to recover forthwith against Tenant as damages for loss of the bargain and not as a penalty, the total Base Rent, with adjustments, to the expiration of the original term of the Lease.
(a) Terminate this Lease by giving written notice of termination to Tenant, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender the Premises, then Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damages, reRe-enter and take possession of the Premises without trespass or any part thereof, and repossess the same and expel or remove Tenant and those claiming through and under Tenant, and remove the effects of both or either, using such force for such purposes as may be necessary, without being liable for prosecution thereof, without being deemed guilty of any other person occupying manner of trespass, and without prejudice to any remedies for arrears of Rent or preceding breach of covenants or conditions. Should Landlord elect to re-enter as provided in this subparagraph, or should Landlord take possession pursuant to legal proceedings or pursuant to any notice provided for by law, Landlord /s/ MB ------- /s/ DW ------- -15- may, from time to time, without terminating this Lease, relet the Premises or any part thereof in Landlord's or Tenant's name, but for the account of Tenant, for such Term or Terms (which may be greater or less than the period which would otherwise have constituted the balance of the Term of this Lease) and on such conditions and upon other Terms (which may include concessions of free Rent and alterations and repair of the Premises) as Landlord, in its sole discretion, may determine, and Landlord may collect and receive the Rents therefor. Landlord shall in no way be responsible or liable for any failure to relet the Premises, or any part thereof, or for any failure to collect any Rent due upon such reletting, except that Tenant does not hereby waive any defense which Tenant may have for Landlord's failure to make reasonable efforts to release the Property, on such terms and conditions as Landlord sees fit. No such re-entry or taking possession of the Premises by Landlord shall be construed as an election on Landlord's part to terminate this Lease unless a written notice of such intention is given to Tenant. No notice from Landlord hereunder or under a forcible entry and detainer statute or similar law shall constitute an election by Landlord to terminate this Lease unless such notice specifically so states. Landlord reserves the right following any such re-entry and/or reletting to exercise its right to terminate this Lease by giving Tenant such written notice, in accordance with applicable law; orwhich event the Lease will terminate as specified in said notice.
(b) In the event that Landlord may re-enter does not elect to terminate this Lease but takes possession as provided for in this subparagraph, Tenant shall pay to Landlord (i) the Rent and take possession other charges as herein provided which would be payable hereunder if such repossession had not occurred, less (ii) the net proceeds, if any, of any reletting of the Premises without terminating the Lease in accordance with applicable law, and relet the Premises and apply the Rent received to the account of Tenant. In the event Landlord so re-enters and takes possession of the Premises as set forth above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate at the time of such reletting. No reletting by Landlord is considered to be for after deducting all Landlord's own account unless Landlord has notified Tenant in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (reasonable expenses including, without limitation, any claims all repossession costs, brokerage commissions, legal expenses, attorney's fees, expenses of employees, alteration and repair costs and expenses of preparation for lost profits and/or lost business opportunity)such reletting. If Tenant shall pay such Rent and other sums to Landlord does accelerate monthly on the Rent, then the accelerated rent shall be an amount equal to days on which the Rent would have been payable over the balance of the Lease Term (as hereunder if this Lease possession had not been terminated) less the fair rental value of the Premises for the corresponding period. The accelerated rent shall be discounted to the date payable at an annual interest rate equal to the prime rate as published from time to time in the Money Section of the Wall Street Journal, or if same is not published anymore then at the prime rate published by Citibank in Florida. Upon payment of the accelerated rent discounted to present value, Tenant shall be released from any and all further liability under this Leaseretaken.
Appears in 1 contract
Samples: Lease Agreement (Signalsoft Corp)
Landlord’s Remedies Upon Default. Upon 17.2.1 If Tenant defaults under the occurrence terms and conditions of an Event of Default by Tenantthis Lease, then as set forth above, Landlord shall be entitled to the following remediesmay either:
(a) Terminate this Lease by giving written notice of termination Lease; or may
(b) From time to Tenanttime without terminating this Lease, in which event Tenant shall immediately surrender make such alterations, improvements and repairs to the Demised Premises as may be necessary to Landlord. If Tenant fails to so surrender relet the Demised Premises, then Landlord may, without prejudice to any other remedy it has for possession of and may relet the Premises or arrearages in rent or other damages, re-enter and take possession of the Premises without trespass and expel or remove Tenant and any other person occupying the Demised Premises or any part thereofthereof for such term and at such Base Rent and upon such other terms and conditions as Landlord in its sole discretion may deem advisable. Upon each such reletting all monies received by Landlord from such reletting shall be applied as follows:
(a) First, in accordance with applicable law; orto the payment of any indebtedness other than Rent due hereunder from Tenant to Landlord;
(b) Second, to the payment of any costs and expenses of such reletting, including brokerage fees, attorney's fees and costs of such alterations, improvements and repairs;
(c) Third, to the payment of Rent or any other payment due and unpaid hereunder, and the residue, if any, shall be held by Xxxxxxxx and applied towards the payment of future Rent due hereunder as the same may become due and payable hereunder. In no event shall Tenant have any right to any monies received by Landlord may re-enter from any reletting other than to have such monies applied towards the indebtedness of Tenant to Landlord as aforesaid, and take to the extent such monies exceed any indebtedness of Tenant, they shall be the sole property of Landlord. If such rentals and other monies received from such reletting during any month is less than the Rent to be paid during that month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such deficiency shall be calculated and paid monthly. No such entry or taking of possession of the Demised Premises by Landlord shall be construed as an election on its part to terminate this Lease, unless a written notice of such intention is given to Tenant by Landlord. Notwithstanding any such reletting without terminating the termination, Landlord may at any time thereafter elect to terminate this Lease in accordance with applicable law, and relet the Premises and apply the Rent received for such previous default by written notice to the account of Tenant. In Should Landlord at any time terminate this Lease for any default, in addition to any other remedies it may have, it may recover from Tenant all damages incurred by reason of such breach including:
(a) The cost of recovering and reletting the event Landlord so re-enters and takes possession of the Demised Premises as set forth referred to above, Landlord agrees to use reasonable efforts to relet the Premises for a commercially reasonable rate ;
(b) All attorneys' fees;
(c) The worth at the time of such reletting. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant termination of the excess, if any, of the amount of all Rent reserved in writing that this Lease has been terminated. In addition, no such reletting is to be considered an acceptance of Tenant's surrender for the remainder of the Premises unless Landlord so notifies Tenant in writing. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord have the right to accelerate Rent (unless Tenant shall be more than ninety (90) days delinquent in the payment of Rent or such other amounts payable, after expiration of notice and all cure periods hereunder). In no event shall Landlord have the right to xxx Tenant for any consequential, punitive or incidental damages (including, without limitation, any claims for lost profits and/or lost business opportunity). If Landlord does accelerate the Rent, then the accelerated rent shall be an amount equal to the Rent payable Term over the balance of the Lease Term (as if this Lease had not been terminated) less the fair then reasonable rental value of the Demised Premises for the corresponding periodremainder of the Term. The accelerated rent All amounts described above shall be discounted immediately due and payable from Tenant to Landlord. In any event, this Section shall not be deemed to require Landlord to re-enter the Demised Premises upon default by Tenant, and Landlord may, at its sole option, do nothing with respect to the date payable at an annual interest rate equal to Demised Premises and hold Tenant responsible for all Rent due Landlord as and when the prime rate as published same shall accrue from time to time thereafter. All remedies provided herein are in addition to all other remedies available to Landlord as provided by law.
17.2.2 It is hereby expressly understood and agreed by and between the Money Section parties hereto that Tenant shall not be entitled to any abatement or reduction of the Wall Street Journalany Rent due Landlord in any eviction action or proceeding instituted by Landlord for nonpayment of any Rent or other monies due, or if same is not published anymore then at in any eviction action or proceeding instituted by Landlord for any breach by Tenant of any covenant contained in this Lease.
17.2.3 In the prime rate published by Citibank in Florida. Upon payment event of the accelerated rent discounted to present valueTenant’s default, Tenant shall be released from Landlord may additionally exercise any and all further liability under this Leaseof its statutory and common law rights and remedies arising out of such default, to the extent not barred by section 768.28, Florida Statutes, as amended.
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Samples: Medical Office Lease
