LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.1. If any Event of Default occurs, Landlord may, notwithstanding the fact that Landlord may have other remedies hereunder or at law or in equity, by written notice to Tenant, designate a date, not less than ten (10) days after the giving of such notice, on which this Lease shall terminate; and thereupon, unless the Event of Default is fully and unconditionally cured by Tenant prior to such date, the Term of this Lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the date specified in such notice were the Termination Date and all rights of Tenant hereunder shall expire and terminate but Tenant shall remain liable as provided in this Lease, and Landlord shall have the right to remove all persons, goods, fixtures and chattels from the Premises, by reasonable force or otherwise but all in accordance with applicable Laws, without liability or damages to Tenant. 16.2. If this Lease is terminated as provided in Section 16.1, or as permitted by law, Tenant shall peaceably quit and surrender the Premises to Landlord, and except as set forth in Section 10.7 of this Lease, Landlord may, without further notice, enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant shall be entitled to possession or to remain in possession of the Premises, and Landlord at its option shall forthwith, notwithstanding any other provision of this Lease, be entitled to recover from Tenant as and for damages either: (i) the excess, if any, of (1) all Base Rent and Additional Rent (conclusively presuming the Additional Rent to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion of the Term over (2) the aggregate fair rental value of the Premises at the time of termination for such unexpired portion of the Term in each case, discounted at the Prime Rate to the then present worth; or (ii) amounts equal to the Base Rent and Additional Rent which would have been payable by Tenant from time to time had this Lease not so terminated, or had Landlord not so re-entered the Premises, payable on the dates that such payments would have otherwise been payable following such termination and until the Termination Date; provided, however, that if Landlord shall relet the Premises during said period, Landlord shall credit Tenant with the net rent received by Landlord from such reletting, such net rents to be determined by first deducting an amortized basis (over the term of the new lease) from the gross rents as and when received by Landlord from such reletting, the actual and necessary expenses incurred or paid by Landlord in terminating this Lease or in re-entering the Premises and in securing possession thereof, as well as the reasonable expenses of reletting, including altering and preparing the Premises for new tenants, brokers' commissions, attorney's fees, and all other expenses properly chargeable against the Premises and the rental therefrom, it being understood that any such reletting may be for a period shorter or longer than the remaining term of this Lease, but in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages pursuant to this Subsection to a credit in respect of any net rents from a reletting, except to the extent that such net rents are actually received by Landlord. If the Premises or any part thereof should be relet in combination with other space or otherwise, then proper apportionment on a square foot basis (for equivalent space) shall be made of the rent received from such reletting and of the expenses of reletting. Suit or suits for the recovery of such damages, or any installments of such damages, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Section 16.1, or under any provision of law, or had Landlord not re-entered the Premises.
Appears in 2 contracts
Samples: Lease Agreement (National Patent Development Corp), Lease Agreement (Five Star Products Inc)
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.1. If any Event of Default occurs, Landlord may, notwithstanding the fact that Landlord may have other remedies hereunder or at law or in equity, by written notice to Tenant, designate a date, not less than ten five (105) days after the giving of such notice, on which this Lease shall terminate; and thereupon, unless the Event of Default is fully and unconditionally cured by Tenant prior to on such date, date the Term of this Lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the date specified in such notice were the Termination Date and all rights of Tenant hereunder shall expire and terminate but Tenant shall remain liable as provided in this Lease, and Landlord shall have the right to remove all persons, goods, fixtures and chattels from the Premises, by reasonable force or otherwise but all in accordance with applicable Lawsotherwise, without liability or damages to Tenant.
16.2. If this Lease is terminated as provided in Section 16.1, or as permitted by law, Tenant shall peaceably quit and surrender the Premises to Landlord, and except as set forth in Section 10.7 of this Lease, Landlord may, without further notice, enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant shall be entitled to possession or to remain in possession of the Premises, and Landlord at its option shall forthwith, notwithstanding any other provision of this Lease, be entitled to recover from Tenant as and for damages either:
(i) the excess, if any, of (1) all Base Rent and Additional Rent (conclusively presuming the Additional Rent to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion of the Term over (2) the aggregate fair rental value of the Premises at the time of termination for such unexpired portion of the Term in each caseTerm, discounted at the Prime Rate rate of five (5%) percent per annum to the then present worthworth plus an amount equal to any Reletting Expenses (as defined in Paragraph (ii) of this Section 16.2); or
(ii) amounts equal to the Base Rent and Additional Rent which would have been payable by Tenant from time to time had this Lease not so terminated, or had Landlord not so re-entered the Premises, payable on the dates that such payments would have otherwise been payable following such termination and until the Termination Date; provided, however, that if Landlord shall relet re let the Premises during said period, Landlord shall credit Tenant with the net rent received by Landlord from such reletting, such net rents to be determined by first deducting in a lump sum (and not on an amortized basis (over the term of the new leasebasis) from the gross rents as and when received by Landlord from such reletting, the actual and necessary expenses incurred or paid by Landlord in terminating this Lease or in re-entering the Premises and in securing possession thereof, as well as the reasonable expenses of reletting, including altering and preparing the Premises for new tenants, brokers' ’ commissions, attorney's attorney fees, and all other expenses properly chargeable against the Premises and the rental therefromtherefrom (collectively, “Reletting Expenses”), it being understood that any such reletting may be for a period shorter or longer than the remaining term of this Lease, but in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages pursuant to this Subsection to a credit in respect of any net rents from a reletting, except to the extent that such net rents are actually received by Landlord. If the Premises or any part thereof should be relet in combination with other space or otherwise, then proper apportionment on a square foot basis (for equivalent space) shall be made of the rent received from such reletting and of the expenses of reletting. Suit or suits for the recovery of such damages, or any installments of such damages, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Section 16.1, or under any provision of law, or had Landlord not re-entered the Premises.
16.3. Nothing herein contained shall be construed to limit or preclude recovery by Landlord against Tenant of any sums or damages to which, in addition to the damages particularly provided above, Landlord may lawfully be entitled by reason of any default hereunder on the part of Tenant. Nothing herein contained shall be construed to limit or prejudice the right of Landlord to prove and obtain as liquidated damages by reason of the termination of this lease or re-entry on the Premises for the default of Tenant under this lease, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such damages are to be proved whether or not such amount be greater, equal to, or less than any of the sums referred to in Section 16.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement (Aptalis Holdings Inc.)
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.114.1. If any Event of Default occurs, Landlord may, notwithstanding the fact that Landlord may have other remedies hereunder or at law or in equity, by written notice to Tenant, designate a date, not less than ten five (105) business days after the giving of such notice, on which this Lease shall terminate; and thereupon, unless the Event of Default is fully and unconditionally cured by Tenant prior to on such date, date the Term of this Lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the date specified in such notice were the Termination Date and all rights of Tenant hereunder shall expire and terminate but Tenant shall remain liable as provided in this Lease, and Landlord shall have the right to remove all persons, goods, fixtures and chattels from the Premises, by reasonable force or otherwise but all in accordance with applicable Lawsotherwise, without liability or damages to Tenant. Tenant shall have right to Mediation as defined under Section 31.10 of this Lease.
16.214.2. If this Lease is terminated as provided in Section 16.114.1, or as permitted by law, Tenant shall peaceably quit and surrender the Premises to Landlord, and except as set forth in Section 10.7 of this Lease, Landlord may, without further notice, enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant shall be entitled to possession or to remain in possession of the Premises, and Landlord at its option shall forthwith, notwithstanding any other provision of this Lease, be entitled to recover from Tenant as and for damages either:
(i) an amount equal to the excess, if any, of (1a) all Base Rent and Additional Rent (conclusively presuming the Additional Rent to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion of the Term over (2b) the aggregate fair rental value of the Premises at the time of termination for such unexpired portion of the Term in each caseTerm, discounted at the Prime Rate rate of three percent (3%) per annum to the then present worth; or
worth plus an amount equal to any Reletting Expenses (as defined in Paragraph (ii) amounts of this Section 14.2). Landlord will make all reasonable effort to rent space and will supply Tenant proof of same.
14.3. Nothing herein contained shall be construed to limit or preclude recovery by Landlord against Tenant of any sums or damages to which, in addition to the damages particularly provided above, Landlord may lawfully be entitled by reason of any default hereunder on the part of Tenant. Nothing herein contained shall be construed to limit or prejudice the right of Landlord to prove and obtain as liquidated damages by reason of the termination of this lease or re-entry on the Premises for the default of Tenant under this lease, an amount equal to the Base Rent maximum allowed by any statute or rule of law in effect at the time when, and Additional Rent which would have been payable by Tenant from time governing the proceedings in which, such damages are to time had this Lease be proved whether or not so terminatedsuch amount be greater, equal to, or had Landlord not so re-entered the Premises, payable on the dates that such payments would have otherwise been payable following such termination and until the Termination Date; provided, however, that if Landlord shall relet the Premises during said period, Landlord shall credit Tenant with the net rent received by Landlord from such reletting, such net rents to be determined by first deducting an amortized basis (over the term less than any of the new lease) from the gross rents as and when received by Landlord from such reletting, the actual and necessary expenses incurred or paid by Landlord sums referred to in terminating this Lease or in re-entering the Premises and in securing possession thereof, as well as the reasonable expenses of reletting, including altering and preparing the Premises for new tenants, brokers' commissions, attorney's fees, and all other expenses properly chargeable against the Premises and the rental therefrom, it being understood that any such reletting may be for a period shorter or longer than the remaining term of this Lease, but in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages pursuant to this Subsection to a credit in respect of any net rents from a reletting, except to the extent that such net rents are actually received by Landlord. If the Premises or any part thereof should be relet in combination with other space or otherwise, then proper apportionment on a square foot basis (for equivalent space) shall be made of the rent received from such reletting and of the expenses of reletting. Suit or suits for the recovery of such damages, or any installments of such damages, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Section 16.1, or under any provision of law, or had Landlord not re-entered the Premises14.
Appears in 1 contract
Samples: Lease Agreement (Asta Funding Inc)
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.1. If In the event of any Event of Default occursdefault set forth in Section 18.1, Landlord mayLandlord, notwithstanding the fact that Landlord in addition to any other rights or remedies it may have other remedies hereunder or at law Law or in equity, by written may do any one or more of the following:
(a) If an Event of Default has occurred, Landlord shall have the right, at its sole option, then or at any time thereafter, without demand upon or notice to Tenant, designate a dateexcept as otherwise expressly provided in this Article XVIII, not less than ten to do any or all of the following:
(10i) days after the giving Landlord may give Tenant notice of such notice, on which Landlord’s intention to terminate this Lease shall terminate; and thereupon, unless the Event of Default is fully and unconditionally cured by Tenant prior to such date, the Term of this Lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the a date specified in such notice were and upon such date, this Lease, the Termination Date estate hereby granted and all rights of Tenant hereunder shall expire and terminate but terminate. Upon such termination, Tenant shall remain liable immediately surrender and deliver possession of the Premises to Landlord in accordance with Article IX. If Tenant does not so surrender and deliver possession of all of the Premises, Landlord may repossess any of the Premises not surrendered by summary ejectment or any other lawful means or procedure. Upon or at any time after taking possession of any of the Premises, Landlord may remove any Persons or property therefrom by lawful means. Landlord shall be under no liability for or by reason of any such entry, repossession or removal. Notwithstanding such entry or repossession, Landlord may collect the damages set forth in Section 18.2(b).
(ii) terminate Tenant’s right of possession (but not this Lease) and may repossess the Premises without demand or notice of any kind to Tenant and without terminating this Lease in which event Landlord shall, to the extent required under applicable law, relet the same for the account of Tenant for such rent and upon such terms as shall be satisfactory to Landlord. For the purpose of such reletting, Landlord is authorized to make repairs, changes, alterations or additions to the Premises to make same relettable, and (A) if Landlord shall be unable to relet the Premises, or (B) if the same are relet and sufficient sums shall not be realized from such reletting (after paying: (i) the unpaid rentals due under this Lease earned, but unpaid at the time of reletting, plus interest thereon at the Past Due Rate, (ii) the cost of recovering possession, including Landlord’s attorneys’ fees, (iii) all of the costs and expenses of reletting including decorations, repairs, changes, alterations and additions by Landlord, and (iv) the expense of the collection of the Rent accruing therefrom) to satisfy the rent and all other charges provided for in this Lease to be paid by Tenant, then Tenant shall pay to Landlord, as damages, the sum equal to the amount of the Rent and other expenses payable by Tenant for such period or periods, or if the Premises has been relet, Tenant shall satisfy and pay any such deficiency upon demand therefor from time to time and Tenant agrees that Landlord may file suit to recover any sums falling due under the terms of this Article from time to time upon one or more occasions without Landlord being obligated to wait until expiration of the term of this Lease. Such reletting shall not be construed as an election on the part of Landlord to terminate this Lease unless a written notice of such intention be given to Tenant by Landlord. Notwithstanding any such reletting without termination, and Landlord may at any time thereafter elect to terminate this Lease for such previous breach. Failure of Landlord to declare any default immediately upon occurrence thereof or delay in taking any action in connection therewith shall not waive such default but Landlord shall have the right to remove all personsdeclare any such default at any time thereafter. Notwithstanding any such reletting, goods, fixtures and chattels from Landlord may collect the Premises, by reasonable force or otherwise but all in accordance with applicable Laws, without liability or damages to Tenant.
16.2. If this Lease is terminated as provided in Section 16.1, or as permitted by law, Tenant shall peaceably quit and surrender the Premises to Landlord, and except as set forth in Section 10.7 18.2(b).
(iii) exercise any or all rights of this Lease, Landlord may, without further notice, enter upon, re-enter, possess and repossess against Guarantor under the same by summary proceedings, ejectment or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant Guaranty.
(b) The following constitute damages to which Landlord shall be entitled to possession if Landlord exercises its remedies under Section 18.2(a)(i) or to remain in possession of the Premises, and Landlord at its option shall forthwith, notwithstanding any other provision of this Lease, be entitled to recover from Tenant as and for damages either:Section 18.2(a)(ii):
(i) If Landlord exercises its remedy under Section 18.2(a)(i) but not its remedy under Section 18.2(a)(ii) then, upon written demand from Landlord, Tenant shall pay to Landlord, as liquidated and agreed final damages for Tenant’s default, all Rent accrued but unpaid through the excessdate of termination of this Lease by Landlord.
(ii) If Landlord exercises its remedy under Section 18.2(a)(ii) but not its remedy under Section 18.2(a)(i), if anythen, upon written demand from Landlord, Tenant shall pay to Landlord, as liquidated and agreed final damages for Tenant’s default and in lieu of all current damages beyond the date of such demand (1it being agreed that it would be impracticable or extremely difficult to fix the actual damages), a sum equal to (A) all Rent accrued but unpaid as of the date of such notice to Tenant, plus (B) an amount (the “Net Present Value”) equal to the positive difference between the Base Rent and Additional Rent (conclusively presuming to become due through the Additional Rent to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion expiration of the then current Term over (2) which, for purposes of calculating Net Present Value, Landlord may accelerate and declare due and payable), and the aggregate fair rental value of the Premises through the expiration of the then current Term, with such positive difference being discounted to present value at the time rate of termination for such unexpired portion six percent (6%) per annum. Tenant shall also pay to Landlord all of Landlord’s out of pocket expenses in connection with the repossession of the Term in each casePremises and any attempted reletting thereof, discounted at including all brokerage commissions, reasonable attorneys’ fees and hard and soft costs of Alterations needed to prepare the Prime Rate Premises for reletting.
(c) Notwithstanding anything to the then present worth; orcontrary herein contained, in lieu of or in addition to any of the foregoing remedies and damages, Landlord may exercise any remedies and collect any damages available to it at law or in equity. If Landlord is unable to obtain full satisfaction pursuant to the exercise of any remedy, it may pursue any other remedy which it has under this Lease or at law or in equity, it being understood that the remedies set forth in this Lease are not exclusive and are cumulative in addition to any remedies that may be available at law or in equity.
(iid) amounts equal Landlord shall use commercially reasonable efforts to the Base Rent and Additional Rent which would mitigate Landlord’s damages under this Lease. Tenant agrees that Landlord shall be deemed to have been payable by Tenant from time used commercially reasonable efforts to time had mitigate Landlord’s damages under this Lease not so terminated, or had Landlord not so re-entered by listing the Premises with a leasing agent on terms recommended by said leasing agent and advising at least one outside commercial brokerage entity of the availability of the Premises, payable on the dates that such payments would have otherwise been payable following such termination and until the Termination Date; provided, however, that if in no event shall Landlord shall relet be obligated to: (i) accept less than the Premises during said periodthen-current market rent for the Premises; (ii) deviate from Landlord’s then-established guidelines for tenants, Landlord shall credit Tenant with the net rent received by Landlord from such relettingincluding, such net rents to be determined by first deducting an amortized basis without limitation, use, experience, reputation, caliber and creditworthiness; (over the term of the new leaseiii) from the gross rents as and when received by Landlord from such relettingexpand, the actual and necessary expenses incurred contract or paid by Landlord in terminating this Lease or in re-entering the Premises and in securing possession thereof, as well as the reasonable expenses of reletting, including altering and preparing “fit out” the Premises for a new tenants, brokers' commissions, attorney's fees, tenant; or (iv) lease less than all or substantially all of the Premises. Tenant agrees that Landlord’s duty to mitigate Landlord’s damages pursuant to this Section 18.2(d) shall not commence unless and until Tenant has fully vacated and delivered the Premises free of any and all other expenses properly chargeable against the Premises Removable Property and the rental therefrom, it being understood that any such reletting may be for a period shorter or longer than the remaining term Equipment.
(e) No termination of this Lease, but in no event shall Tenant be entitled to receive repossession or reletting of the Premises, exercise of any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the remedy or collection of any damages pursuant to this Subsection to a credit in respect Article XVIII shall relieve Tenant of any net rents from a relettingSurviving Obligations.
(f) No failure of Landlord: (i) to insist at any time upon the strict performance of any provision of this Lease; or (ii) to exercise any option, except to the extent that such net rents are actually received by Landlord. If the Premises right, power or any part thereof should be relet remedy contained in combination with other space or otherwise, then proper apportionment on a square foot basis (for equivalent space) this Lease shall be made construed as a waiver, modification or relinquishment thereof. A receipt by Landlord of any sum in satisfaction of any Monetary Obligation with knowledge of the rent received from such reletting and breach of the expenses of reletting. Suit or suits for the recovery any provision hereof shall not be deemed a waiver of such damagesbreach, or any installments of such damages, may be brought and no waiver by Landlord from time to time at its election, and nothing contained herein of any provision hereof shall be deemed to require Landlord have been made unless expressed in a writing signed by Landlord.
(g) Tenant hereby waives and surrenders, for itself and all those claiming under it, including creditors of all kinds, any right and privilege which it or any of them may have under any present or future Law to postpone suit until redeem any of the date when the term Premises or to have a continuance of this Lease would have expired if it had not been so terminated under the provisions after termination of Section 16.1, this Lease or under of Tenant’s right of occupancy or possession pursuant to any court order or any provision of law, or had Landlord not re-entered the Premiseshereof.
Appears in 1 contract
Samples: Asset Purchase Agreement (Asbury Automotive Group Inc)
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.117.1. If If, (i) in the case of a Default based upon the nonpayment of Basic Rent, Additional Rent or any Event other sum of money due to Landlord hereunder, Tenant fails to cure such Default occursby paying such sum within five (5) days after the date Landlord gives notice that the same is unpaid and overdue, or (ii) in the case of any other Default, Tenant fails to cure such Default within fifteen (15) days after notice thereof is given by Landlord, Landlord may, notwithstanding the fact that Landlord may have other remedies hereunder immediately or at law or in equityany time thereafter, by written without further notice to Tenant, designate a date(i) enter upon the Premises as agent for Tenant, not less than ten (10) days after the giving of such noticeby legal entry, on which this Lease shall terminate; and thereupon, unless the Event of Default is fully and unconditionally cured by Tenant prior to such date, the Term of without terminating this Lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the date specified in such notice were the Termination Date do any and all rights acts Landlord may deem necessary, proper or convenient to cure such Default, for the account of Tenant hereunder shall expire and terminate but Tenant shall remain liable as provided in this Leaseat the expense of Tenant, and Tenant agrees to pay Landlord, upon demand, all damages and expenses incurred by Landlord shall have the in so doing; or (ii) terminate this Lease and Tenant’s right to possession of the Premises and, with or without legal process, take possession of the Premises and remove all personsTenant, goodsany occupant and any property therefrom, fixtures and chattels from the Premises, by reasonable force or otherwise but all in accordance with applicable Lawswithout being guilty of trespass, without liability or damages whatsoever to Tenant and without relinquishing any rights of Landlord against Tenant.
16.217.2. If In the event this Lease is terminated as provided in Section 16.1, or as permitted by lawso terminated, Tenant shall peaceably quit and surrender vacate the Premises to Landlordon the termination date as if such date were the originally scheduled Expiration Date, and except shall pay to Landlord as set forth in Section 10.7 of this Lease, Landlord may, without further notice, enter upon, re-enter, possess damages an amount equal to the amount herein covenanted to be paid as Basic Rent and repossess Additional Rent throughout the same by summary proceedings, ejectment or other legal proceeding, and again have, repossess and enjoy the same entire Term (as if this Lease same had not been madeexpired until the originally scheduled Expiration Date), together with: (i) all expenses of any proceedings (including, but not limited to, reasonable legal expenses and attorney’s fees) which Landlord incurs in any such event neither Tenant nor any person claiming through or under Tenant shall be entitled order to possession or to remain in recover possession of the Premises, and Landlord at its option shall forthwith, notwithstanding any other provision of this Lease, be entitled to recover from Tenant as and for damages either:
(i) the excess, if any, of (1) all Base Rent and Additional Rent (conclusively presuming the Additional Rent to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion of the Term over (2) the aggregate fair rental value of the Premises at the time of termination for such unexpired portion of the Term in each case, discounted at the Prime Rate to the then present worth; or
(ii) amounts equal all reasonable expenses of re-letting the Premises including, but not limited to, commissions paid to real estate brokers, advertising expenses and the Base Rent reasonable cost of such alterations, repairs, replacements and Additional Rent decoration or redecoration as Landlord, in the reasonable exercise of its judgment, considers advisable and necessary for the purposes of re-renting the Premises; and (iii) any and all other sums which would have been payable are provided to be paid by Tenant from time to time had this Lease not so terminated, or had Landlord not so re-entered hereunder in the Premises, payable on the dates that such payments would have otherwise been payable following such termination and until the Termination Dateevent of its Default; provided, however, that if Landlord there shall relet be credited against the Premises during said period, Landlord shall credit Tenant with the net rent amount of such damages all amounts received by Landlord from such reletting, such net rents to be determined by first deducting an amortized basis (over the term re-renting of the new lease) from Premises.
17.3. Landlord may maintain separate actions against Tenant each month to recover the gross rents as and when received by Landlord from damages incurred in such reletting, month without waiting until the actual and necessary expenses incurred or paid by Landlord in terminating this Lease or in re-entering the Premises and in securing possession thereof, as well as the reasonable expenses of reletting, including altering and preparing the Premises for new tenants, brokers' commissions, attorney's fees, and all other expenses properly chargeable against the Premises and the rental therefrom, it being understood that any such reletting may be for a period shorter or longer than the remaining term of this Lease, but in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages pursuant to this Subsection to a credit in respect of any net rents from a reletting, except to the extent that such net rents are actually received by Landlord. If the Premises or any part thereof should be relet in combination with other space or otherwise, then proper apportionment on a square foot basis (for equivalent space) shall be made end of the rent received from such reletting and of Term to determine the expenses of reletting. Suit or suits for the recovery aggregate amount of such damages, or any installments Landlord, at its option, if the Premises have been re-let for a term extending at least as long as the remainder of such damagesthe Term hereof, may recover from Tenant in advance for the entire deficiency to be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when realized during the term of this Lease would have expired if it had not been so terminated under the provisions re-letting. Tenant hereby expressly waives any and all rights of Section 16.1, redemption granted by or under any provision present or future laws in the event of lawthe eviction of Tenant, or had in the event of Tenant’s being dispossessed for any cause, or in the event of Landlord’s obtaining possession of the Premises by reason of the violation by Tenant of any of the covenants or conditions of this Lease.
17.4. Landlord not re-entered may apply against the Premisesdamages due in the event of Tenant’s Default any Basic Rent, Additional Rent, Security Deposit or other moneys received from Tenant or others on behalf of Tenant or in connection with the Lease.
17.5. To secure the payment of any and all sums payable by Tenant hereunder and to assure Tenant’s faithful performance of its obligations hereunder, Tenant hereby grants to Landlord an express contractual lien on and security interest in all property, chattels and merchandise in the Premises and in all proceeds of any insurance which may accrue to Tenant by reason of damage to or destruction of any such property, chattels or merchandise. Landlord shall have the right, as agent for Tenant, to take possession of any furniture or fixtures of Tenant found upon the Premises after taking possession of the same pursuant to the Paragraph 17 and may sell the same at any private or public sale and apply the proceeds to any amount due Landlord. Tenant waives any notice of execution or levy in connection therewith.
Appears in 1 contract
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.119.1. If any Event of Default occurs, Landlord may, notwithstanding the fact that Landlord may have other remedies hereunder or at law or in equity, by written notice to Tenant, designate a date, not less than ten five (105) days after the giving of such notice, on which this Lease shall terminate; and thereupon, unless the Event of Default is fully and unconditionally cured by Tenant prior to on such date, date the Term of this Lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the date specified in such notice were was the Termination Date Date, and all rights of Tenant hereunder shall expire and terminate but Tenant shall remain liable as provided in this Lease, and Landlord shall have the right to remove all persons, goods, fixtures fixtures, and chattels from the Premises, by reasonable force or otherwise but all in accordance with applicable Lawsotherwise, without liability or damages to Tenant.
16.219.2. If this Lease is terminated as provided in Section 16.119.1, or as permitted by law, Tenant shall peaceably quit and surrender the Premises to Landlord, and except as set forth in Section 10.7 of this Lease, Landlord may, without further notice, enter upon, re-enter, possess possess, and repossess the same by summary proceedings, ejectment ejectment, or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant by virtue of any law or an order of any court shall be entitled to possession or to remain in possession of the Premises but shall forthwith quit and surrender the Premises, and Landlord at its option shall forthwith, notwithstanding any other provision of this Lease, be entitled to recover from Tenant as and for damages either:
(i) the excess, if any, of (1) an amount equal to all Base Minimum Rent and Additional Rent (conclusively presuming the Additional Rent to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion of the Term over (2) the aggregate fair rental value of the Premises at the time of termination for such unexpired portion of the Term in each caseTerm, discounted at the Prime Rate rate of four percent (4%) per annum to the then present worth; or
(ii) amounts equal to the Base Minimum Rent and Additional Rent (as above presumed) which would have been payable by Tenant from time to time had this Lease not so terminated, or had Landlord not so re-entered the Premises, payable on the dates date that such payments would have otherwise been payable following such termination and until the Termination Date; provided, however, that if Landlord shall relet the Premises during said period, Landlord shall credit Tenant with the net rent rents received by Landlord from such reletting, such net rents to be determined by first deducting an amortized basis (over the term of the new lease) from the gross rents as and when received by Landlord from such reletting, the actual and necessary expenses incurred or paid by Landlord from such reletting, the expenses incurred or paid by Landlord in terminating this Lease or in re-entering the Premises and in securing possession thereof, as well as the reasonable expenses of reletting, including altering and preparing the Premises for new tenants, brokers' ’ commissions, attorney's fees, and all other expenses properly chargeable against the Premises and the rental therefrom, it being understood that any such reletting may be for a period shorter or longer than the remaining term Term of this Lease, but in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages pursuant to this Subsection subsection to a credit in respect of any net rents from a reletting, except to the extent that such net rents are actually received by Landlord. If the Premises or any part thereof should be relet in combination with other space or otherwise, then proper apportionment on a square foot basis (for equivalent space) shall be made of the rent received from such reletting and of the expenses of reletting. Suit or suits for the recovery of such damages, or any installments of such damages, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term Term of this Lease would have expired if it had not been so terminated under the provisions of Section 16.119.1, or under any provision of law, or had Landlord not re-entered the Premises.
19.3. Nothing contained in this Lease shall be construed to impose upon Landlord the duty to mitigate damages in the event of a default by Tenant. In addition, nothing herein contained shall be construed to limit or preclude recovery by Landlord against Tenant of
Appears in 1 contract
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.1. If In the event of any Event of Default occursset forth in Section 18.1, Landlord mayLandlord, notwithstanding the fact that Landlord in addition to any other rights or remedies it may have other remedies hereunder or at law Law or in equity, by written may do any one or more of the following:
(a) If an Event of Default has occurred, Landlord shall have the right, at its sole option, then or at any time thereafter, without demand upon or notice to Tenant, designate a dateexcept as otherwise expressly provided in this Article XVIII, not less than ten to do any or all of the following:
(10i) days after the giving Landlord may give Tenant notice of such notice, on which Landlord’s intention to terminate this Lease shall terminate; and thereupon, unless the Event of Default is fully and unconditionally cured by Tenant prior to such date, the Term of this Lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the a date specified in such notice were and upon such date, this Lease, the Termination Date estate hereby granted and all rights of Tenant hereunder shall expire and terminate but terminate. Upon such termination, Tenant shall remain liable immediately surrender and deliver possession of the Premises to Landlord in accordance with Article IX. If Tenant does not so surrender and deliver possession of all of the Premises, Landlord may repossess any of the Premises not surrendered by summary ejectment or any other lawful means or procedure. Upon or at any time after taking possession of any of the Premises, Landlord may remove any Persons or property therefrom by lawful means. Landlord shall be under no liability for or by reason of any such entry, repossession or removal. Notwithstanding such entry or repossession, Landlord may collect the damages set forth in Section 18.2(b).
(ii) terminate Tenant’s right of possession (but not this Lease) and may repossess the Premises without demand or notice of any kind to Tenant and without terminating this Lease in which event Landlord shall, to the extent required under applicable law, relet the same for the account of Tenant for such rent and upon such terms as shall be satisfactory to Landlord. For the purpose of such reletting, Landlord is authorized to make repairs, changes, alterations or additions to the Premises to make same relettable, and if Landlord shall be unable to relet the Premises, or if the same are relet and sufficient sums shall not be realized from such reletting (after paying: (i) the unpaid rentals due under this Lease earned, but unpaid at the time of reletting, plus interest thereon at the Past Due Rate, (ii) the cost of recovering possession, including Landlord’s attorneys’ fees, (iii) all of the costs and expenses of reletting including decorations, repairs, changes, alterations and additions by Landlord, and (iv) the expense of the collection of the Rent accruing therefrom) to satisfy the rent and all other charges provided for in this Lease to be paid by Tenant, then Tenant shall pay to Landlord, as damages, the sum equal to the amount of the Rent and other expenses payable by Tenant for such period or periods, or if the Premises has been relet, Tenant shall satisfy and pay any such deficiency upon demand therefor from time to time and Tenant agrees that Landlord may file suit to recover any sums falling due under the terms of this Article from time to time upon one or more occasions without Landlord being obligated to wait until expiration of the term of this Lease. Such reletting shall not be construed as an election on the part of Landlord to terminate this Lease unless a written notice of such intention be given to Tenant by Landlord. Notwithstanding any such reletting without termination, and Landlord may at any time thereafter elect to terminate this Lease for such previous breach. Failure of Landlord to declare any default immediately upon occurrence thereof or delay in taking any action in connection therewith shall not waive such default but Landlord shall have the right to remove all personsdeclare any such default at any time thereafter. Notwithstanding any such reletting, goods, fixtures and chattels from Landlord may collect the Premises, by reasonable force or otherwise but all in accordance with applicable Laws, without liability or damages to Tenant.
16.2. If this Lease is terminated as provided in Section 16.1, or as permitted by law, Tenant shall peaceably quit and surrender the Premises to Landlord, and except as set forth in Section 10.7 18.2(b).
(iii) exercise any or all rights of this Lease, Landlord may, without further notice, enter upon, re-enter, possess and repossess against Guarantor under the same by summary proceedings, ejectment or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant Guaranty.
(b) The following constitute damages to which Landlord shall be entitled to possession if Landlord exercises its remedies under Section 18.2(a)(i) or to remain in possession of the Premises, and Landlord at its option shall forthwith, notwithstanding any other provision of this Lease, be entitled to recover from Tenant as and for damages either:Section 18.2(a)(ii):
(i) If Landlord exercises its remedy under Section 18.2(a)(i) but not its remedy under Section 18.2(a)(ii) then, upon written demand from Landlord, Tenant shall pay to Landlord, as liquidated and agreed final damages for Tenant’s default, all Rent accrued but unpaid through the excessdate of termination of this Lease by Landlord.
(ii) If Landlord exercises its remedy under Section 18.2(a)(ii) but not its remedy under Section 18.2(a)(i), if anythen, upon written demand from Landlord, Tenant shall pay to Landlord, as liquidated and agreed final damages for Tenant’s default and in lieu of all current damages beyond the date of such demand (1it being agreed that it would be impracticable or extremely difficult to fix the actual damages), a sum equal to all Rent accrued but unpaid as of the date of such notice to Tenant, plus an amount (the “Net Present Value”) all equal to the positive difference between the Base Rent and Additional Rent (conclusively presuming to become due through the Additional Rent to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion expiration of the then current Term over (2) which, for purposes of calculating Net Present Value, Landlord may accelerate and declare due and payable), and the aggregate fair rental value of the Premises through the expiration of the then current Term, with such positive difference being discounted to present value at the time rate of termination for such unexpired portion six percent (6%) per annum. Tenant shall also pay to Landlord all of the Term Landlord’s out of pocket expenses in each case, discounted at the Prime Rate to the then present worth; or
(ii) amounts equal to the Base Rent and Additional Rent which would have been payable by Tenant from time to time had this Lease not so terminated, or had Landlord not so re-entered the Premises, payable on the dates that such payments would have otherwise been payable following such termination and until the Termination Date; provided, however, that if Landlord shall relet the Premises during said period, Landlord shall credit Tenant connection with the net rent received by Landlord from such reletting, such net rents to be determined by first deducting an amortized basis (over the term repossession of the new lease) from the gross rents as and when received by Landlord from such reletting, the actual and necessary expenses incurred or paid by Landlord in terminating this Lease or in re-entering the Premises and in securing possession any attempted reletting thereof, as well as the including all brokerage commissions, reasonable expenses attorneys’ fees and hard and soft costs of reletting, including altering and preparing Alterations needed to prepare the Premises for new tenants, brokers' commissions, attorney's fees, and all other expenses properly chargeable against the Premises and the rental therefrom, it being understood that any such reletting may be for a period shorter or longer than the remaining term of this Lease, but in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages pursuant to this Subsection to a credit in respect of any net rents from a reletting, except to the extent that such net rents are actually received by Landlord. If the Premises or any part thereof should be relet in combination with other space or otherwise, then proper apportionment on a square foot basis (for equivalent space) shall be made of the rent received from such reletting and of the expenses of reletting. Suit or suits for the recovery of such damages, or any installments of such damages, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Section 16.1, or under any provision of law, or had Landlord not re-entered the Premises.
Appears in 1 contract
Samples: Asset Purchase Agreement (Asbury Automotive Group Inc)
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.1. If any (a) Upon the occurrence of an Event of Default occursby Tenant, Landlord, upon failure of Tenant to cure a default in the payment of Basic Rent, Additional Rent or any other sum of money due to Landlord mayhereunder within five (5) days after notice thereof from Landlord or to cure or diligently commence to cure any other Event of Default within fifteen (15) days after notice thereof from Landlord, notwithstanding the fact that Landlord may have other remedies hereunder immediately or at law or in equityany time thereafter, by written without further notice to Tenant: (i) enter upon the Premises as agent for Tenant, designate a dateby legal entry, not less than ten (10) days after the giving of such notice, on which this Lease shall terminate; and thereupon, unless the Event of Default is fully and unconditionally cured by Tenant prior to such date, the Term of with or without terminating this Lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the date specified in such notice were the Termination Date do any and all rights acts as Landlord may deem necessary, proper or convenient to curing such Event of Tenant hereunder shall expire Default, for the account of and terminate but Tenant shall remain liable as provided in this Leaseat the expense of Tenant, and Tenant agrees to pay Landlord, upon demand, all damages and/or expenses incurred by Landlord in so doing; (ii) Landlord shall have the right to remove all persons, goods, fixtures and chattels from the Premises, by reasonable force or otherwise but all in accordance with applicable Laws, without liability or damages to Tenant.
16.2. If terminate this Lease is terminated as provided in Section 16.1, or as permitted by law, Tenant shall peaceably quit and surrender the Premises Tenant's right to Landlord, and except as set forth in Section 10.7 of this Lease, Landlord may, without further notice, enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant shall be entitled to possession or to remain in possession of the PremisesPremises and take possession of the Premises and remove Tenant, any occupant and any property therefrom, and distrain upon and sell any such property, using any legal means, without being guilty of trespass and without relinquishing any rights of Landlord at its option against Tenant; or (iii) Landlord shall forthwith, notwithstanding any other provision have the right to accelerate the payment of this Lease, be entitled to recover from Tenant as and for damages either:
(i) the excess, if any, of (1) all Base Basic Rent and Additional Rent (conclusively presuming the Additional Rent to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion of the Term over (2together with any extension period to which Tenant is then bound to exercise of a right of renewal or otherwise) and to recover from Tenant the aggregate fair rental value of the Premises at the time of termination for such unexpired portion of the Term in each case, discounted at the Prime Rate amount herein covenanted to the then present worth; or
(ii) amounts equal to the Base be paid as Basic Rent and Additional Rent and not then paid (including all accelerated amounts).
(b) Landlord shall be entitled to recover damages from Tenant in an amount equal to the amount herein covenanted to be paid as Basic Rent and Additional Rent, together with: (i) all expenses of any proceedings (including, but not limited to, legal expenses and reasonable attorney's fees) which would have been payable by Tenant from time may be necessary in order for Landlord to time had this Lease not so terminated, or had Landlord not so recover possession of the Premises; and (ii) the expenses of re-entered renting the Premises, payable on including, but not limited to, any commissions paid to any real estate broker, advertising expenses and the dates that costs of such payments would have otherwise been payable following such termination alterations, repairs, replacements and until decoration or re-decoration as Landlord in its sole judgment considers advisable and necessary for the Termination Datepurpose of re-renting the Premises; provided, however, that if Landlord there shall relet be credited against the Premises during said period, Landlord shall credit Tenant with the net rent amount of such damages all amounts received by Landlord from such reletting, such net rents to be determined by first deducting an amortized basis (over the term re-renting of the new lease) from the gross rents as and when received by Premises. Landlord from such reletting, the actual and necessary expenses incurred or paid by Landlord in terminating this Lease or in re-entering the Premises and in securing possession thereof, as well as the reasonable expenses of reletting, including altering and preparing the Premises for new tenants, brokers' commissions, attorney's fees, and all other expenses properly chargeable against the Premises and the rental therefrom, it being understood that any such reletting may be for a period shorter or longer than the remaining term of this Lease, but shall in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled liable in any suit way whatsoever for the collection of damages pursuant failure to this Subsection to a credit in respect of any net rents from a reletting, except to the extent that such net rents are actually received by Landlord. If the Premises or any part thereof should be relet in combination with other space or otherwise, then proper apportionment on a square foot basis (for equivalent space) shall be made of collect the rent received from thereof under such reletting and of the expenses of reletting. Suit re-renting.
19.2 No act or suits for the recovery of such damages, or any installments of such damages, may be brought thing done by Landlord from time to time at its election, and nothing contained herein shall be deemed to require be an acceptance of Tenant's surrender of the Premises, unless Landlord should execute a written agreement of surrender with Tenant. Tenant's liability hereunder shall not be terminated by the execution of a new lease of the Premises by Landlord. Tenant agrees to postpone suit pay to Landlord upon demand, the amount of damages herein provided after the amount of such damages for any month shall have been ascertained; provided, however, that any expenses incurred by Landlord shall be deemed to be a part of the damages for the month in which they were incurred. Separate actions may be maintained each month by Landlord against Tenant to recover the damages then due, without waiting until the date when end of the term Term to determine the aggregate amount of this Lease would have expired if it had not been so terminated under the provisions such damages. Tenant hereby expressly waives any and all rights of Section 16.1, redemption granted by or under any provision present or future laws in the event of lawthe eviction of Tenant or Tenant being dispossessed for any cause, or had in the event of Landlord not re-entered obtaining possession of the PremisesPremises by reason of the violation by Tenant of any of the covenants or conditions of this Lease.
19.3 Landlord may retain, on account of its damages, any Basic Rent, Additional Rent, Security Deposit or monies received by it from Tenant or others on behalf of Tenant.
Appears in 1 contract
Samples: Sublease (Alphanet Solutions Inc)
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.119.1. If any Event of Default occurs, Landlord may, notwithstanding the fact that Landlord may have other remedies hereunder or at law or in equity, by written notice to Tenant, designate a date, not less than ten five (105) days Business Days after the giving of such notice, on which this Lease shall terminate; and thereupon, unless the Event of Default is fully and unconditionally cured by Tenant prior to on such date, date the Term of this Lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the date specified in such notice were was the Termination Date Date, and all rights of Tenant hereunder shall expire and terminate but Tenant shall remain liable as provided in this Lease, and Landlord shall have the right to remove all persons, goods, fixtures fixtures, and chattels from the Premises, by reasonable force or otherwise but all in accordance with applicable Lawsotherwise, without liability or damages to Tenant.
16.219.2. If this Lease is terminated as provided in Section 16.119.1, or as permitted by lawLaw, Tenant shall peaceably quit and surrender the Premises to Landlord, and except as set forth in Section 10.7 of this Lease, Landlord may, without further notice, enter upon, re-enter, possess possess, and repossess the same by summary proceedings, ejectment ejectment, or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant by virtue of any Law or an order of any court shall be entitled to possession or to remain in possession of the Premises but shall forthwith quit and surrender the Premises, and Landlord at its option shall forthwith, notwithstanding any other provision of this Lease, be entitled to recover from Tenant as and for damages either:
(i) the excess, if any, of (1) an amount equal to all Base Minimum Rent and Additional Rent (conclusively presuming the Additional Rent to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion of the Term over (2) Term, less the aggregate fair market rental value of the Premises at for the time of termination for such unexpired portion of the Term in each caseTerm, discounted at the Prime Rate rate of four percent (4%) per annum to the then present worth; or
(ii) amounts equal to the Base Minimum Rent and Additional Rent (as above presumed) which would have been payable by Tenant from time to time had this Lease not so terminated, or had Landlord not so re-entered the Premises, payable on the dates date that such payments would have otherwise been payable following such termination and until the Termination Date; provided, however, that if Landlord shall relet the Premises during said period, Landlord shall credit Tenant with the net rent rents received by Landlord from such reletting, such net rents to be determined by first deducting an amortized basis (over the term of the new lease) from the gross rents as and when received by Landlord from such reletting, the actual and necessary reasonable out-of-pocket expenses incurred or paid by Landlord from such reletting, the reasonable out-of-pocket expenses incurred or paid by Landlord in terminating this Lease or in re-entering the Premises and in securing possession thereof, as well as the reasonable out-of-pocket expenses of reletting, including altering and preparing the Premises for new tenants, brokers' ’ commissions, attorney's fees, and all other expenses properly chargeable against the Premises and the rental therefrom, it being understood that any such reletting may be for a period shorter or longer than the remaining term Term of this Lease, but in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages pursuant to this Subsection subsection to a credit in respect of any net rents from a reletting, except to the extent that such net rents are actually received by Landlord. If the Premises or any part thereof should be relet in combination with other space or otherwiseotherwise or for a term longer than the remaining Term of this Lease, then proper apportionment on a square foot basis (for equivalent space) shall be made of the rent received from such reletting and of the expenses of reletting. Suit or suits for the recovery of such damages, or any installments of such damages, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term Term of this Lease would have expired if it had not been so terminated under the provisions of Section 16.119.1, or under any provision of lawLaw, or had Landlord not re-entered the Premises.
19.3. Landlord agrees that, in the event of a default that results in Landlord’s recovery of possession of the Premises, Landlord will exert commercially reasonable efforts to relet the Premises in order to mitigate damages, provided: (1) Landlord will retain the right, in its reasonable discretion, to approve any tenant and to determine the terms and conditions of any lease, including, but not limited to, the rent and length of term, (2) Landlord shall not be obligated to display the Premises to prospective tenants if Landlord has other premises available in the Building and (3) Tenant may present prospective tenants to Landlord for consideration (Landlord having no obligation to accept such prospective tenants). In addition, nothing herein contained shall be construed to limit or preclude recovery by Landlord against Tenant of any sums, or damages to which, in addition to the damages particularly provided above, Landlord may lawfully be entitled by reason of any default hereunder on the part of Tenant. Nothing herein contained shall be construed to limit or prejudice the right of Landlord to prove for and obtain as liquidated damages by reason of the termination of this Lease or re-entry on the Premises for the default of Tenant under this Lease, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such damages are to be proved whether or not such amount be greater, equal to, or less than any of the sums referred to in Section 19.
Appears in 1 contract
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.1. If In the event of any Event of Default occursset forth in Section 18.1, Landlord mayLandlord, notwithstanding the fact that Landlord in addition to any other rights or remedies it may have other remedies hereunder or at law Law or in equity, by written may do any one or more of the following:
(a) If an Event of Default has occurred, Landlord shall have the right, at its sole option, then or at any time thereafter, without demand upon or notice to Tenant, designate a dateexcept as otherwise expressly provided in this Article XVIII, not less than ten to do any or all of the following:
(10i) days after the giving Landlord may give Tenant notice of such notice, on which Landlord’s intention to terminate this Lease shall terminate; and thereupon, unless the Event of Default is fully and unconditionally cured by Tenant prior to such date, the Term of this Lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the a date specified in such notice were and upon such date, this Lease, the Termination Date estate hereby granted and all rights of Tenant hereunder shall expire and terminate but terminate. Upon such termination, Tenant shall remain liable immediately surrender and deliver possession of the Premises to Landlord in accordance with Article IX. If Tenant does not so surrender and deliver possession of all of the Premises, Landlord may repossess any of the Premises not surrendered by summary ejectment or any other lawful means or procedure. Upon or at any time after taking possession of any of the Premises, Landlord may remove any Persons or property therefrom by lawful means. Landlord shall be under no liability for or by reason of any such entry, repossession or removal. Notwithstanding such entry or repossession, Landlord may collect the damages set forth in Section 18.2(b).
(ii) terminate Tenant’s right of possession (but not this Lease) and may repossess the Premises without demand or notice of any kind to Tenant and without terminating this Lease in which event Landlord shall, to the extent required under applicable law, relet the same for the account of Tenant for such rent and upon such terms as shall be satisfactory to Landlord. For the purpose of such reletting, Landlord is authorized to make repairs, changes, alterations or additions to the Premises to make same relettable, and if Landlord shall be unable to relet the Premises, or if the same are relet and sufficient sums shall not be realized from such reletting (after paying: (i) the unpaid rentals due under this Lease earned, but unpaid at the time of reletting, plus interest thereon at the Past Due Rate, (ii) the cost of recovering possession, including Landlord’s attorneys’ fees, (iii) all of the costs and expenses of reletting including decorations, repairs, changes, alterations and additions by Landlord, and (iv) the expense of the collection of the Rent accruing therefrom) to satisfy the rent and all other charges provided for in this Lease to be paid by Tenant, then Tenant shall pay to Landlord, as damages, the sum equal to the amount of the Rent and other expenses payable by Tenant for such period or periods, or if the Premises has been relet, Tenant shall satisfy and pay any such deficiency upon demand therefor from time to time and Tenant agrees that Landlord may file suit to recover any sums falling due under the terms of this Article from time to time upon one or more occasions without Landlord being obligated to wait until expiration of the term of this Lease. Such reletting shall not be construed as an election on the part of Landlord to terminate this Lease unless a written notice of such intention be given to Tenant by Landlord. Notwithstanding any such reletting without termination, and Landlord may at any time thereafter elect to terminate this Lease for such previous breach. Failure of Landlord to declare any default immediately upon occurrence thereof or delay in taking any action in connection therewith shall not waive such default but Landlord shall have the right to remove all personsdeclare any such default at any time thereafter. Notwithstanding any such reletting, goods, fixtures and chattels from Landlord may collect the Premises, by reasonable force or otherwise but all in accordance with applicable Laws, without liability or damages to Tenant.
16.2. If this Lease is terminated as provided in Section 16.1, or as permitted by law, Tenant shall peaceably quit and surrender the Premises to Landlord, and except as set forth in Section 10.7 18.2(b).
(iii) exercise any or all rights of this Lease, Landlord may, without further notice, enter upon, re-enter, possess and repossess against Guarantor under the same by summary proceedings, ejectment or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant Guaranty.
(b) The following constitute damages to which Landlord shall be entitled to possession if Landlord exercises its remedies under Section 18.2(a)(i) or to remain in possession of the Premises, and Landlord at its option shall forthwith, notwithstanding any other provision of this Lease, be entitled to recover from Tenant as and for damages either:Section 18.2(a)(ii):
(i) If Landlord exercises its remedy under Section 18.2(a)(i) but not its remedy under Section 18.2(a)(ii) then, upon written demand from Landlord, Tenant shall pay to Landlord, as liquidated and agreed final damages for Tenant’s default, all Rent accrued but unpaid through the excessdate of termination of this Lease by Landlord.
(ii) If Landlord exercises its remedy under Section 18.2(a)(ii) but not its remedy under Section 18.2(a)(i), if anythen, upon written demand from Landlord, Tenant shall pay to Landlord, as liquidated and agreed final damages for Tenant’s default and in lieu of all current damages beyond the date of such demand (1it being agreed that it would be impracticable or extremely difficult to fix the actual damages), a sum equal to all Rent accrued but unpaid as of the date of such notice to Tenant, plus an amount (the “Net Present Value”) all equal to the positive difference between the Base Rent and Additional Rent (conclusively presuming to become due through the Additional Rent to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion expiration of the then current Term over (2) which, for purposes of calculating Net Present Value, Landlord may accelerate and declare due and payable), and the aggregate fair rental value of the Premises through the expiration of the then current Term, with such positive difference being discounted to present value at the time rate of termination for such unexpired portion six percent (6%) per annum. Tenant shall also pay to Landlord all of Landlord’s out of pocket expenses in connection with the repossession of the Term in each casePremises and any attempted reletting thereof, discounted at including all brokerage commissions, reasonable attorneys’ fees and hard and soft costs of Alterations needed to prepare the Prime Rate Premises for reletting.
(c) Notwithstanding anything to the then present worth; orcontrary herein contained, in lieu of or in addition to any of the foregoing remedies and damages, Landlord may exercise any remedies and collect any damages available to it at law or in equity. If Landlord is unable to obtain full satisfaction pursuant to the exercise of any remedy, it may pursue any other remedy which it has under this Lease or at law or in equity, it being understood that the remedies set forth in this Lease are not exclusive and are cumulative in addition to any remedies that may be available at law or in equity.
(iid) amounts equal Landlord shall use commercially reasonable efforts to the Base Rent and Additional Rent which would mitigate Landlord’s damages under this Lease. Tenant agrees that Landlord shall be deemed to have been payable by Tenant from time used commercially reasonable efforts to time had mitigate Landlord’s damages under this Lease not so terminated, or had Landlord not so re-entered by listing the Premises with a leasing agent on terms recommended by said leasing agent and advising at least one outside commercial brokerage entity of the availability of the Premises, payable on the dates that such payments would have otherwise been payable following such termination and until the Termination Date; provided, however, that if in no event shall Landlord shall relet be obligated to: accept less than the Premises during said periodthen-current market rent for the Premises; deviate from Landlord’s then-established guidelines for tenants, Landlord shall credit Tenant with the net rent received by Landlord from such relettingincluding, such net rents to be determined by first deducting an amortized basis (over the term of the new lease) from the gross rents as without limitation, use, experience, reputation, caliber and when received by Landlord from such relettingcreditworthiness; expand, the actual and necessary expenses incurred contract or paid by Landlord in terminating this Lease or in re-entering the Premises and in securing possession thereof, as well as the reasonable expenses of reletting, including altering and preparing “fit out” the Premises for a new tenants, brokers' commissions, attorney's fees, tenant; or lease less than all or substantially all of the Premises. Tenant agrees that Landlord’s duty to mitigate Landlord’s damages pursuant to this Section 18.2(d) shall not commence unless and until Tenant has fully vacated and delivered the Premises free of any and all other expenses properly chargeable against the Premises Removable Property and the rental therefrom, it being understood that any such reletting may be for a period shorter or longer than the remaining term Equipment.
(e) No termination of this Lease, but in no event shall Tenant be entitled to receive repossession or reletting of the Premises, exercise of any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the remedy or collection of any damages pursuant to this Subsection to a credit in respect Article XVIII shall relieve Tenant of any net rents from a relettingSurviving Obligations.
(f) No failure of Landlord: to insist at any time upon the strict performance of any provision of this Lease; or to exercise any option, except to the extent that such net rents are actually received by Landlord. If the Premises right, power or any part thereof should be relet remedy contained in combination with other space or otherwise, then proper apportionment on a square foot basis (for equivalent space) this Lease shall be made construed as a waiver, modification or relinquishment thereof. A receipt by Landlord of any sum in satisfaction of any Monetary Obligation with knowledge of the rent received from such reletting and breach of the expenses of reletting. Suit or suits for the recovery any provision hereof shall not be deemed a waiver of such damagesbreach, or any installments of such damages, may be brought and no waiver by Landlord from time to time at its election, and nothing contained herein of any provision hereof shall be deemed to require Landlord have been made unless expressed in a writing signed by Landlord.
(g) Tenant hereby waives and surrenders, for itself and all those claiming under it, including creditors of all kinds, any right and privilege which it or any of them may have under any present or future Law to postpone suit until redeem any of the date when the term Premises or to have a continuance of this Lease would have expired if it had not been so terminated under the provisions after termination of Section 16.1, this Lease or under of Tenant’s right of occupancy or possession pursuant to any court order or any provision of law, or had Landlord not re-entered the Premiseshereof.
Appears in 1 contract
Samples: Asset Purchase Agreement (Asbury Automotive Group Inc)
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.1. If any Event of 19.1 Upon a Default occurs, by Tenant the following provisions shall apply and Landlord may, notwithstanding shall have the fact that Landlord rights and remedies set forth herein which rights and remedies may have other remedies hereunder be exercised upon or at law or in equityany time following the occurrence of a Default unless, by written notice prior to Tenantsuch exercise, designate a date, not less than ten (10) days after the giving of such notice, on which this Lease Default shall terminate; and thereupon, unless the Event of Default is fully and unconditionally have been cured by Tenant prior to such date, the Term of this Lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the date specified in such notice were the Termination Date and all rights of Tenant hereunder shall expire and terminate but Tenant shall remain liable as provided in this Lease, and respects.
19.2 Landlord shall have the right to remove sxx for unpaid Basic Rent, Additional Rent and for all persons, goods, fixtures and chattels from the Premises, by reasonable force or otherwise but all in accordance with applicable Laws, without liability or damages other sums owed to Landlord.
19.3 By notice to Tenant.
16.2. If , Landlord shall have the right to terminate this Lease is terminated as provided of a date specified in Section 16.1the notice of termination and in such case, or as permitted by lawTenant's rights, Tenant shall peaceably quit including any based on any option to renew, to the possession and surrender use of the Premises to shall end absolutely as of the termination date specified in such notice; and this Lease shall also terminate in all respects except for the provisions hereof regarding Landlord's damages and Tenant's liabilities arising prior to, out of and except following the Default and the ensuing termination. Following such termination (as set forth in Section 10.7 well as upon any other termination of this Lease, Lease by expiration of the Term or otherwise) Landlord may, without further notice, enter upon, re-enter, possess and repossess immediately shall have the same by summary proceedings, ejectment or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant shall be entitled right to possession or to remain in recover possession of the Premises; and to that end, Landlord may enter the Premises and take possession, without the necessity of giving Tenant any notice to quit or any other further notice, with or without legal process or proceedings, and in so doing Landlord at its option may remove Tenant's property (including any improvements or additions to the Premises which Tenant made, unless made with Landlord's consent which expressly permitted Tenant to not remove the same upon expiration of the Term), as well as the property of others as may be in the Premises, and make disposition thereof in such manner as Landlord may deem to be commercially reasonable and necessary under the circumstances.
19.4 Unless and until Landlord shall forthwithhave terminated this Lease under paragraph 19.3 above, notwithstanding any other provision Tenant shall remain fully liable and responsible to perform all of the covenants and to observe all the conditions of this Lease throughout the remainder of the Term; and, in addition and without regard to whether Landlord shall have terminated this Lease, Tenant shall pay to Landlord, upon demand and as Additional Rent, the total sum of all costs, losses and expenses, including reasonable counsel fees, as Landlord incurs, directly or indirectly, because of any Default having occurred. If Landlord either terminates Tenant's right to possession without terminating this Lease or terminates this Lease and Tenant's leasehold estate as above provided, Landlord shall have the unrestricted right to relet the Premises or any part(s) thereof to such tenant(s) on such provisions and for such period(s) as Landlord may deem appropriate. Landlord shall be obligated to mitigate its damages to the extent required by applicable law; provided, however, Landlord shall have no obligation to have the Premises available for reletting or otherwise endeavor to relet so long as Landlord (or any related entity) has other comparable vacant space or property available for leasing to others and Landlord's obligation to mitigate damages shall be limited to such efforts as Landlord, in its sole reasonable judgment, deems appropriate.
19.5 The damages which Landlord shall be entitled to recover from Tenant shall be the sum of:
(1) all Basic Rent, Additional Rent and other charges accrued and unpaid as of the termination date; and
(2) (i) all costs and expenses actually incurred by Landlord in recovering possession of the Premises, including removal and storage of Tenant's property, improvements and alterations therefrom, (ii) the costs and expenses of restoring the Premises to the condition in which the same were to have been surrendered by Tenant as of the expiration of the Term, or, in lieu thereof, the costs and expenses of remodeling or altering the Premises or any part for reletting the same, (iii) the costs of reletting (exclusive of those covered by the foregoing (ii)), including brokerage fees and reasonable counsel fees, and (iv) any overhead expenses related to the vacancy of the Premises for each month or part between the date of termination and the reletting of the entire Premises; and
(3) all Basic Rent, Additional Rent and other charges to the extent that the amount(s) of Additional Rent or other charges have been determined otherwise payable by Tenant over the remainder of the Term. Less, deducting from the total determined under subparagraphs (1), (2), and (3) all rent and all other Additional Rent to the extent determinable as aforesaid, (to the extent that like charges would have been payable by Tenant) which Landlord receives from other tenant(s) by reason of the leasing of the Premises or part during or attributable to any period falling within the otherwise remainder of the Term. The damage sums payable by Tenant under the preceding provisions of this paragraph 19.5 shall be payable on demand from time to time as the amounts are determined. In lieu of the damages eitherpayable in subparagraph (3) of this paragraph 19.5, Landlord shall be entitled to recover from Tenant, in a single action, as liquidated damages (in addition to the damages set forth in subparagraphs (1) and (2) of this paragraph 19.5) an amount equal all Basic Rent and Additional Rent for the period which otherwise would have constituted the unexpired portion of the Term, which amounts shall be discounted to present value at a rate of interest equal to 2% below the interest rate then announced by JPMorgan Chase Bank, N.A. as its “Prime Rate” (or such other term as may be used by JPMorgan Chase Bank, N.A., from time to time), provided that for the purpose of calculating said liquidated damage amount, Additional Rent and other charges shall be fixed, from the date of such election or commencement of reletting, as the amount of Additional Rent and other charges which would have been paid by Tenant, had Tenant not defaulted, as of the date of such election.
19.6 Any sums payable by Tenant hereunder, which are not paid after the same shall be due, shall bear interest from that day until paid at the rate of interest stated at paragraph 1.3.
19.7 Landlord shall be entitled to injunctive relief in case of the violation, or attempted or threatened violation, of any covenant, agreement, condition or provision of this Lease, or to a decree compelling performance of any covenant, agreement, condition or provision of this Lease.
19.8 In addition to any applicable lien, none of which are to be deemed waived by Landlord, Landlord shall have, at all times, and Tenant hereby grants to Landlord, a valid lien and security interest to secure payment of all rentals and other sums of money becoming due under this Lease from Tenant, and to secure payment of any damages or loss which Landlord may suffer by reason of the breach by Tenant of any covenant, agreement or condition contained herein, upon all goods, wares, equipment, fixtures, furniture, improvements and other personal property of Tenant presently or which may hereafter be situated on the Premises, and all proceeds therefrom, and such property shall not be removed therefrom without the consent of Landlord until all arrearages in rent as well as any and all other sums of money then due to Landlord hereunder shall first have been paid and discharged and all covenants, agreements and conditions hereof have been fully complied with and performed by Tenant. Upon the occurrence of an event of default by Tenant, Landlord may, in addition to any other remedies provided herein, enter upon the Premises and take possession of any and all goods, wares, equipment, fixtures, furniture, improvements and other personal property of Tenant situated on the Premises, without liability for trespass or conversion, and sell the same at public or private sale, with or without having such property at the sale, after giving Tenant reasonable notice of the time and place of any public sale or of the time after which any private sale is to be made, at which sale Landlord or its assigns may purchase unless otherwise prohibited by law. Unless otherwise provided by law, and without intending to exclude any other manner of giving Tenant reasonable notice, the requirement of reasonable notice shall be met if such notice is given in the manner prescribed in ARTICLE XXVI of this Lease at least five (5) days before the time of sale. The proceeds from any such disposition, less any and all expenses connected with the taking of possession, holding and selling of the property (including reasonable attorney's fees and other expenses), shall be applied as a credit against the indebtedness secured by the security interest granted herein. Any surplus shall be paid to Tenant or as otherwise required by law; and Tenant shall pay any deficiencies forthwith. Upon request by Landlord, Tenant agrees to execute and deliver to Landlord a financing statement in form sufficient to perfect the security interest of Landlord in the aforementioned property and proceeds thereof under the provisions of the Uniform Commercial Code in force in the State of New Jersey.
19.9 For the purpose of this ARTICLE XIX, in the event of Tenant’s voluntary or involuntary bankruptcy, should the Tenant as Debtor-in-Possession or a Trustee appointed by the Bankruptcy Court, attempt to provide adequate assurance of Tenant’s ability to continue to operate out of the Premises, adequate assurance shall mean to the extent permitted by law, at a minimum, the following:
(i) The Trustee or Debtor-in-Possession has and will continue to have sufficient unencumbered assets after the excesspayment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor-in-Possession will have sufficient funds to fulfill the obligations of Tenant under this Lease, if anyand to keep the Demised Premises properly staffed with sufficient employees to conduct a fully operational, of (1) all Base Rent and Additional Rent (conclusively presuming actively promoted business in the Additional Rent to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion of the Term over (2) the aggregate fair rental value of the Premises at the time of termination for such unexpired portion of the Term in each case, discounted at the Prime Rate to the then present worthPremises; orand
(ii) amounts equal The Bankruptcy Court shall have entered an Order segregating sufficient cash payable to Landlord and/or the Trustee or Debtor-in-Possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, Trustee or Debtor-in-Possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of the Trustee or Debtor-in-Possession to cure the monetary and/or non-monetary defaults under this Lease within the time periods set forth above.
19.10 Notwithstanding anything to the Base Rent and Additional Rent which would have been payable by Tenant from time to time had this Lease not so terminated, or had Landlord not so re-entered the Premises, payable on the dates that such payments would have otherwise been payable following such termination and until the Termination Date; provided, however, that if Landlord shall relet the Premises during said period, Landlord shall credit Tenant with the net rent received by Landlord from such reletting, such net rents to be determined by first deducting an amortized basis (over the term of the new lease) from the gross rents as and when received by Landlord from such reletting, the actual and necessary expenses incurred or paid by Landlord contrary in terminating this Lease or in re-entering the Premises and in securing possession thereof, as well as the reasonable expenses of reletting, including altering and preparing the Premises for new tenants, brokers' commissions, attorney's fees, and all other expenses properly chargeable against the Premises and the rental therefrom, it being understood that any such reletting may be for a period shorter or longer than the remaining term of this Lease, but in no event shall Tenant either party be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages pursuant to this Subsection to a credit in respect of any net rents from a reletting, except liable to the extent that such net rents are actually received by Landlord. If the Premises other for special, indirect or any part thereof should be relet consequential damages except as provided in combination with other space or otherwise, then proper apportionment on a square foot basis (for equivalent space) shall be made of the rent received from such reletting and of the expenses of reletting. Suit or suits for the recovery of such damages, or any installments of such damages, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Section 16.1, or under any provision of law, or had Landlord not re-entered the Premises14.1.
Appears in 1 contract
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.1. If any Event of Default occurs, Landlord may, notwithstanding the fact that Landlord may have other remedies hereunder or at law or in equity, by written notice to Tenant, designate a date, not less than ten (10) days after the giving of such notice, on which this Lease shall terminate; and thereupon, unless the Event of Default is fully and unconditionally cured Upon default by Tenant prior to such date, of any of the Term of this Lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the date specified in such notice were the Termination Date and all rights of Tenant hereunder shall expire and terminate but Tenant shall remain liable as provided in this Lease, and Landlord shall have the right to remove all persons, goods, fixtures and chattels from the Premises, by reasonable force terms or otherwise but all in accordance with applicable Laws, without liability or damages to Tenant.
16.2. If this Lease is terminated as provided in Section 16.1, or as permitted by law, Tenant shall peaceably quit and surrender the Premises to Landlord, and except as set forth in Section 10.7 covenants of this Lease, Landlord may, without further notice, enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant shall be entitled to possession remedy such default as follows:
(a) Landlord shall have the right, immediately or at any time after said default, without further notice to Tenant (unless otherwise provided herein), to enter the Leased Premises, without terminating this Lease or being guilty of trespass, and do any and all acts as Landlord may deem necessary, proper or convenient to cure such default, for the account and at the expense of Tenant, and Tenant agrees to pay to Landlord as Additional Rent all damage and/or expense incurred by Landlord in so doing, including interest at the Penalty Rate from the due date until the date payment is received by Landlord. The making of such payment or the taking of such action by Landlord shall not be deemed to cure the default or to remain in stop Landlord from the pursuit of any remedy to which Landlord would otherwise be entitled.
(b) Landlord shall, following said default, have the right to terminate this Lease and/or Tenant's right to possession of the PremisesLeased Premises and, with or without legal process, take possession of the Leased Premises and remove Tenant, any occupant and any property therefrom, without being guilty of trespass and without relinquishing any rights of Landlord at its option against Tenant. Landlord shall forthwith, notwithstanding any other provision of this Lease, be entitled to recover damages from Tenant in an amount equal to the amount herein covenanted to be paid as and Minimum Annual Rent during the remainder of the Lease Term, said Minimum Annual Rent for damages either:
the full term then remaining having been fully accelerated at the option of Landlord, together with (i) the excessall reasonable expenses of any proceedings (including, if anybut not limited to, of (1legal expenses and attorney's fees) all Base Rent and Additional Rent (conclusively presuming the Additional Rent which may be necessary in order for Landlord to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion recover possession of the Term over (2) the aggregate fair rental value of the Premises at the time of termination for such unexpired portion of the Term in each caseLeased Premises, discounted at the Prime Rate to the then present worth; or
(ii) amounts equal to the Base Rent and Additional Rent which would have been payable by Tenant from time to time had this Lease not so terminated, or had Landlord not so reasonable expenses of the re-entered renting of the Leased Premises (including, but not limited to, any commissions paid to any real estate agent, advertising expense and the costs of such alterations, repairs, replacements and decoration or re-decoration as Landlord, in its sole judgment reasonably exercised, considers advisable and necessary for the purpose of re-renting the Leased Premises), payable on and (iii) interest computed at the dates that such payments would have otherwise been payable following such termination and Penalty Rate from the due date until the Termination Datepaid; provided, however, that if Landlord said damages shall relet be discounted to present value using a discount factor of 5%, and further that there shall be credited against the Premises during said period, Landlord shall credit Tenant with the net rent amount of such damages all amounts received by Landlord from such reletting, such net rents to be determined by first deducting an amortized basis (over the term re-renting of the new lease) from the gross rents as Leased Premises and when received such amounts shall be refunded to Tenant. No act or thing done by Landlord from such reletting, the actual and necessary expenses incurred or paid by Landlord in terminating this Lease or in re-entering the Premises and in securing possession thereof, as well as the reasonable expenses of reletting, including altering and preparing the Premises for new tenants, brokers' commissions, attorney's fees, and all other expenses properly chargeable against the Premises and the rental therefrom, it being understood that any such reletting may be for a period shorter or longer than the remaining term of this Lease, but in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages pursuant to this Subsection to a credit in respect of any net rents from a reletting, except to the extent that such net rents are actually received by Landlord. If the Premises or any part thereof should be relet in combination with other space or otherwise, then proper apportionment on a square foot basis (for equivalent space) shall be made of the rent received from such reletting and of the expenses of reletting. Suit or suits for the recovery of such damages, or any installments of such damages, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require be an acceptance of a surrender of the Leased Premises, unless Landlord shall execute a written agreement of surrender with Tenant. Tenant's liability hereunder shall not be terminated by the execution of a new lease of the Leased Premises by Landlord. In the event Landlord does not exercise its option to postpone suit accelerate the payment of Minimum Annual Rent as provided hereinabove, then Tenant agrees to pay to Landlord, upon demand, the amount of damages herein provided after the amount of such damages for any month shall have been ascertained; provided, however, that any expenses incurred by Landlord shall be deemed to be a part of the damages for the month in which they were incurred. Separate actions may be maintained each month or at other times by Landlord against Tenant to recover the damages then due, without waiting until the date when end of the term of this Lease would to determine the aggregate amount of such damages.
(c) Upon any default by Tenant to pay Minimum Annual Rent or Additional Rent, Landlord shall have expired if it had a lien upon the property of Tenant in the Leased Premises for the amount of any unpaid Minimum Annual Rent or Additional Rent. In such event, Tenant shall not been so terminated under remove any of Tenant's property from the provisions Leased Premises except with the prior written consent of Section 16.1Landlord, which consent shall be granted at Landlord's sole and absolute discretion.
(d) All rights and remedies provided to either Landlord or under Tenant herein as a result of a default by the other party shall be cumulative, and none shall exclude any provision other right or remedy allowed by law. For the purposes of lawany suit brought or based hereon, or had Landlord not re-entered this Lease shall be construed to be a divisible contract, to the Premisesend that successive actions may be maintained on this Lease as successive periodic sums mature hereunder.
Appears in 1 contract
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.1. If 19.1 Upon a Default by Tenant the following provisions shall apply and Landlord shall have the rights and remedies set forth therein which rights and remedies may be exercised upon or at any Event time following the occurrence of a Default occursunless, prior to such exercise, Landlord may, notwithstanding shall agree in writing with Tenant that the fact that Landlord may have other remedies hereunder or at law or in equity, by written notice to Tenant, designate a date, not less than ten (10) days after the giving of such notice, on which this Lease shall terminate; and thereupon, unless the Event of Default is fully and unconditionally has been cured by Tenant prior to such datein all respects.
19.2 Except for the first two (2) occurrances of Defaults which Tenant immediately cures within the applicable cure period, the Term of this Lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the date specified in such notice were the Termination Date and all rights of Tenant hereunder shall expire and terminate but Tenant shall remain liable as provided in this Lease, and Landlord shall have the right to remove accelerate all persons, goods, fixtures Basic Rent and chattels from all expense installments due hereunder and otherwise payable in installments over the Premises, by reasonable force or otherwise but all in accordance with applicable Laws, without liability or damages to Tenant.
16.2. If this Lease is terminated as provided in Section 16.1, or as permitted by law, Tenant shall peaceably quit and surrender the Premises to Landlord, and except as set forth in Section 10.7 of this Lease, Landlord may, without further notice, enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant shall be entitled to possession or to remain in possession remainder of the PremisesTerm, and Landlord and, at its option shall forthwithLandlord's option, notwithstanding any other provision of this Lease, be entitled to recover from Tenant as and for damages either:
(i) the excess, if any, of (1) all Base Rent and Additional Rent (conclusively presuming the Additional Rent to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion of the Term over (2) the aggregate fair rental value of the Premises at the time of termination for such unexpired portion of the Term in each case, discounted at the Prime Rate to the then present worth; or
(ii) amounts equal to the Base Rent and Additional Rent which would have been payable by Tenant from time to time had this Lease not so terminated, or had Landlord not so re-entered the Premises, payable on the dates that such payments would have otherwise been payable following such termination and until the Termination Date; provided, however, that if Landlord shall relet the Premises during said period, Landlord shall credit Tenant with the net rent received by Landlord from such reletting, such net rents to be determined by first deducting an amortized basis (over the term of the new lease) from the gross rents as and when received by Landlord from such reletting, the actual and necessary expenses incurred or paid by Landlord in terminating this Lease or in re-entering the Premises and in securing possession thereof, as well as the reasonable expenses of reletting, including altering and preparing the Premises for new tenants, brokers' commissions, attorney's fees, and all and/or other expenses properly chargeable against the Premises and the rental therefrom, it being understood that any such reletting may be for a period shorter or longer than the remaining term of this Lease, but in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages pursuant to this Subsection to a credit in respect of any net rents from a reletting, except charges to the extent that such net rents are actually received Additional Rent and/or other charges can be determined and calculated to a fixed sum; and the amount of accelerated rent and other charges, without further notice or demand for payment, shall be due and payable by LandlordTenant within five (5) days after Landlord has so notified Tenant. If Additional Rent and/or other charges which has not been included, in whole or in part, in accelerated rent, shall be due and payable by Tenant during the Premises remainder of the Term, in the amounts and at the times otherwise provided for in this Lease. Notwithstanding the foregoing or the application of any part thereof should be relet in combination with other space rule of law based on election of remedies or otherwise, then proper apportionment on a square foot basis if Tenant fails to pay the accelerated rent in full when due, Landlord thereafter shall have the right by notice to Tenant, (for equivalent spacei) shall be made to terminate Tenant's further right to possession of the rent received from such reletting Premises and (ii) to terminate this Lease under paragraph 19.3 below; and if Tenant shall have paid part but not all of the expenses accelerated rent, the portion thereof attributable to the period equivalent to the part of reletting. Suit the Term remaining after Landlord's termination of possession or suits for the recovery of such damages, or any installments of such damages, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term termination of this Lease would have expired if it had not been so terminated under shall be applied by Landlord against Tenant's obligations owing to Landlord as determined by the applicable provisions of Section 16.1, or under any provision of law, or had Landlord not re-entered the Premisesparagraphs 19.4 and 19.5 below.
Appears in 1 contract
Samples: Lease Agreement (Mim Corp)
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.1. If any Event of Default occurs, Landlord may, notwithstanding the fact that Landlord may have other remedies hereunder or at law or in equity, by written notice to Tenant, designate a date, not less than ten (10) days after the giving of such notice, on which this Lease shall terminate; and thereupon, unless the Event of Default is fully and unconditionally cured Upon default by Tenant prior to such date, of any of the Term of this Lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the date specified in such notice were the Termination Date and all rights of Tenant hereunder shall expire and terminate but Tenant shall remain liable as provided in this Lease, and Landlord shall have the right to remove all persons, goods, fixtures and chattels from the Premises, by reasonable force terms or otherwise but all in accordance with applicable Laws, without liability or damages to Tenant.
16.2. If this Lease is terminated as provided in Section 16.1, or as permitted by law, Tenant shall peaceably quit and surrender the Premises to Landlord, and except as set forth in Section 10.7 covenants of this Lease, Landlord may, without further notice, enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant shall be entitled to possession remedy such default as follows:
(a) Landlord shall have the right, immediately or at any time after said default, without further notice to Tenant (unless otherwise provided herein), to enter the Leased Premises, without terminating this Lease or being guilty of trespass, and do any and all acts as Landlord may deem necessary, proper or convenient to cure such default, for the account and at the expense of Tenant, and Tenant agrees to pay to Landlord as Additional Rent all damage and/or expense incurred by Landlord in so doing, including interest at the Penalty Rate from the due date until the date payment is received by Landlord. The making of such payment or the taking of such action by Landlord shall not be deemed to cure the default or to remain in stop Landlord from the pursuit of any remedy to which Landlord would otherwise be entitled.
(b) Landlord shall, following said default, have the right to terminate this Lease and/or Tenant's right to possession of the PremisesLeased Premises and remove Tenant, any occupant and any property therefrom, without being guilty of trespass and without relinquishing any rights of Landlord at its option against Tenant. Landlord shall forthwith, notwithstanding any other provision of this Lease, be entitled to recover damages from Tenant in an amount equal to the amount herein covenanted to be paid as and Minimum Annual Rent during the remainder of the Lease Term, said Minimum Annual Rent for damages either:
the full term then remaining having been fully accelerated at the option of Landlord, together with (i) the excessall reasonable expenses of any proceedings (including, if anybut not limited to, of (1legal expenses and attorney's fees) all Base Rent and Additional Rent (conclusively presuming the Additional Rent which may be necessary in order for Landlord to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion recover possession of the Term over (2) the aggregate fair rental value of the Premises at the time of termination for such unexpired portion of the Term in each caseLeased Premises, discounted at the Prime Rate to the then present worth; or
(ii) amounts equal to the Base Rent and Additional Rent which would have been payable by Tenant from time to time had this Lease not so terminated, or had Landlord not so reasonable expenses of the re-entered renting of the Leased Premises (including, but not limited to, any commissions paid to any real estate agent, advertising expense and the costs of such alterations, repairs, replacements and decoration or re-decoration as Landlord, in its sole judgment reasonably exercised, considers advisable and necessary for the purpose of re-renting the Leased Premises), payable on and (iii) interest computed at the dates that such payments would have otherwise been payable following such termination and Penalty Rate from the due date until the Termination Datepaid; provided, however, that if Landlord said damages shall relet be discounted to present value using a discount factor of 5%, and further that there shall be credited against the Premises during said period, Landlord shall credit Tenant with the net rent amount of such damages all amounts received by Landlord from such reletting, such net rents to be determined by first deducting an amortized basis (over the term re-renting of the new lease) from the gross rents as Leased Premises and when received such amounts shall be refunded to Tenant. No act or thing done by Landlord from such reletting, the actual and necessary expenses incurred or paid by Landlord in terminating this Lease or in re-entering the Premises and in securing possession thereof, as well as the reasonable expenses of reletting, including altering and preparing the Premises for new tenants, brokers' commissions, attorney's fees, and all other expenses properly chargeable against the Premises and the rental therefrom, it being understood that any such reletting may be for a period shorter or longer than the remaining term of this Lease, but in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages pursuant to this Subsection to a credit in respect of any net rents from a reletting, except to the extent that such net rents are actually received by Landlord. If the Premises or any part thereof should be relet in combination with other space or otherwise, then proper apportionment on a square foot basis (for equivalent space) shall be made of the rent received from such reletting and of the expenses of reletting. Suit or suits for the recovery of such damages, or any installments of such damages, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require be an acceptance of a surrender of the Leased Premises, unless Landlord shall execute a written agreement of surrender with Tenant. Tenant's liability hereunder shall not be terminated by the execution of a new lease of the Leased Premises by Landlord. In the event Landlord does not exercise its option to postpone suit accelerate the payment of Minimum Annual Rent as provided hereinabove, then Tenant agrees to pay to Landlord, upon demand, the amount of damages herein provided after the amount of such damages for any month shall have been ascertained; provided, however, that any expenses incurred by Landlord shall be deemed to be a part of the damages for the month in which they were incurred. Separate actions may be maintained each month or at other times by Landlord against Tenant to recover the damages then due, without waiting until the date when end of the term of this Lease would to determine the aggregate amount of such damages.
(c) Upon any default by Tenant to pay Minimum Annual Rent or Additional Rent, Landlord shall have expired if it had not been so terminated under a lien upon the provisions property of Section 16.1Tenant in the Leased Premises for the amount of any unpaid Minimum Annual Rent or Additional Rent.
(d) All rights and remedies provided to either Landlord or Tenant herein as a result of a default by the other party shall be cumulative, and none shall exclude any other right or under remedy allowed by law. For the purposes of any provision of lawsuit brought or based hereon, or had Landlord not re-entered this Lease shall be construed to be a divisible contract, to the Premisesend that successive actions may be maintained on this Lease as successive periodic sums mature hereunder.
Appears in 1 contract
Samples: Lease (Calypte Biomedical Corp)
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.1. If (a) Upon a Default by Tenant or any Event subtenant or assignee, Landlord, upon failure of Default occursTenant to cure a default in the payment of Basic Rent, Additional Rent or any other sum of money due to Landlord may, notwithstanding the fact that Landlord may have other remedies hereunder or at law or in equity, by written notice to Tenant, designate a date, not less than ten within five (105) days after the giving of such noticesame was due (without notice thereof from Landlord) or to cure or diligently commence to cure any other Default within fifteen (15) days after notice thereof from Landlord (provided same is cured with a reasonable time thereafter, on which this Lease shall terminate; and thereuponwithout any delay), unless may immediately or at anytime thereafter, without further notice to Tenant (i) enter upon the Event of Default is fully and unconditionally cured Premises as agent for Tenant, by Tenant prior to such datelegal entry, the Term of without terminating this Lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the date specified in such notice were the Termination Date do any and all acts as Landlord may deem necessary, proper or convenient to cure such Default, for the account of and at the expense of Tenant, and Tenant agrees to pay Landlord, upon demand, all damages and/or expenses incurred by Landlord in so doing; or (ii) terminate this Lease and Tenant's right to possession of the Premises and, with or without legal process, take possession of the Premises and remove Tenant, any occupant and any property therefrom, using such legal means, without being guilty of trespass and without relinquishing any rights of Tenant hereunder shall expire and terminate but Tenant shall remain liable as provided in this Lease, and Landlord shall have the right to remove all persons, goods, fixtures and chattels from the Premises, by reasonable force or otherwise but all in accordance with applicable Laws, without liability or damages to against Tenant.
16.2. If this Lease is terminated as provided in Section 16.1, or as permitted by law, Tenant shall peaceably quit and surrender the Premises to Landlord, and except as set forth in Section 10.7 of this Lease, (b) Landlord may, without further notice, enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant shall be entitled to possession or recover damages from Tenant in an amount equal to remain the amount herein covenanted to be paid as Basic Rent and Additional Rent, together with: (i) all expenses of any proceedings (including but not limited to, legal expenses and attorneys' fees) which may be necessary in order for Landlord to recover possession of the Premises, ; and Landlord at its option shall forthwith, notwithstanding any other provision of this Lease, be entitled to recover from Tenant as and for damages either:
(i) the excess, if any, of (1) all Base Rent and Additional Rent (conclusively presuming the Additional Rent to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion of the Term over (2) the aggregate fair rental value of the Premises at the time of termination for such unexpired portion of the Term in each case, discounted at the Prime Rate to the then present worth; or
(ii) amounts equal to the Base Rent and Additional Rent which would have been payable by Tenant from time to time had this Lease not so terminated, or had Landlord not so expenses of re-entered renting the Premises, payable on including but not limited to, any commissions paid to any real estate broker, advertising expenses and the dates that costs of such payments would have otherwise been payable following such termination alterations, repairs, replacements and until decoration or re-decoration as Landlord in its sole judgment considers advisable or necessary for the Termination Datepurpose of re-renting the Premises; provided, however, that if Landlord there shall relet be credited against the Premises during said period, Landlord shall credit Tenant with the net rent amount of such damages all amounts received by Landlord from such reletting, such net rents to be determined by first deducting an amortized basis (over the term re-renting of the new lease) from the gross rents as and when received by Premises. Landlord from such reletting, the actual and necessary expenses incurred or paid by Landlord in terminating this Lease or in re-entering the Premises and in securing possession thereof, as well as the reasonable expenses of reletting, including altering and preparing the Premises for new tenants, brokers' commissions, attorney's fees, and all other expenses properly chargeable against the Premises and the rental therefrom, it being understood that any such reletting may be for a period shorter or longer than the remaining term of this Lease, but shall in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled liable in any suit for the collection of damages pursuant way whatsoever from failure to this Subsection to a credit in respect of any net rents from a relettingcollect rent under such re- renting; and further provided, except to the extent that such net rents are actually received by Landlord. If the Premises or any part thereof should be relet in combination with other space or otherwisehowever, then proper apportionment on a square foot basis (for equivalent space) Landlord shall be made of under no obligation to re-rent the rent received from such reletting and of the expenses of reletting. Suit Premises.
17.2 No act or suits for the recovery of such damages, or any installments of such damages, may be brought thing done by Landlord from time to time at its election, and nothing contained herein shall be deemed to require be an acceptance of Tenant's surrender of the Premises, unless Landlord should execute a written agreement of surrender with Tenant. Tenant's liability hereunder shall not be terminated by the execution of a new lease of the Premises by Landlord. Tenant agrees to postpone suit pay to Landlord, upon demand, the amount of damages herein provided after the amount of such damages for any month shall have been ascertained; provided however, any expenses incurred by Landlord shall be deemed to be a part of the damages for the month in which they were incurred. Separate actions may be maintained each month by Landlord against Tenant to recover the damages when due, without waiting until the date when end of the Term to determine the aggregate amount of such damages or Landlord, at its option, if the Premises have been re-let for a term extending at least as long as the remainder of the Term thereof, may hold Tenant in advance for the entire deficiency to be realized during the term of this Lease would have expired if it had not been so terminated under the provisions re-letting. Tenant hereby expressly waives any and all rights of Section 16.1, redemption granted by or under any provision present or future laws in the event of lawthe eviction of Tenant or Tenant being dispossessed for any cause, or had in the event of Landlord not re-entered obtaining possession of the PremisesPremises by reason of the violation by Tenant of any of the covenants or conditions of this Lease.
17.3 Landlord may retain, as partial liquidated damages, any Basic Rent, Additional Rent, Security Deposit or monies received from Tenant or others on behalf of the Tenant.
17.4 Landlord shall have the right, as agent for Tenant, to take possession of any furniture or fixtures of Tenant found upon the Premises after taking possession of same pursuant to this Article XVII and sell the same at any private or public sale and apply the proceeds to any amount due Landlord. Tenant waives any notice of execution or levy in connection therewith.
Appears in 1 contract
Samples: Lease Agreement (All Tech Investment Group Inc /De/)
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.1. If In the event of any Event of Default occursdefault set forth in paragraph 19.01, Landlord mayLandlord, notwithstanding the fact that Landlord in addition to any other rights or remedies it may have other remedies hereunder or at law or in equity, by written notice to Tenant, designate a date, not less than ten (10) days after the giving of such notice, on which this Lease shall terminate; and thereupon, unless the Event of Default is fully and unconditionally cured by Tenant prior to such date, the Term of this Lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the date specified in such notice were the Termination Date and all rights of Tenant hereunder shall expire and terminate but Tenant shall remain liable as provided in this Lease, and Landlord shall have the right to remove all persons, goods, fixtures and chattels from the Premises, by reasonable force may do any one or otherwise but all in accordance with applicable Laws, without liability or damages to Tenant.
16.2. If this Lease is terminated as provided in Section 16.1, or as permitted by law, Tenant shall peaceably quit and surrender the Premises to Landlord, and except as set forth in Section 10.7 of this Lease, Landlord may, without further notice, enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant shall be entitled to possession or to remain in possession more of the Premises, and Landlord at its option shall forthwith, notwithstanding any other provision of this Lease, be entitled to recover from Tenant as and for damages eitherfollowing:
(ia) the excess, if any, of (1) all Base Rent and Additional Rent (conclusively presuming the Additional Rent elect to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion of the Term over (2) the aggregate fair rental value of the Premises at the time of termination for such unexpired portion of the Term in each case, discounted at the Prime Rate to the then present worthterminate this Lease; or
(iib) amounts equal perform, on behalf and at the expense of Tenant (entering upon the Premises for such purpose, if necessary), any obligation of Tenant under this Lease which Tenant has failed to perform and of which Landlord shall have given Tenant notice, the Base Rent and cost of which performance or liability by Landlord shall be deemed Additional Rent which would have been payable by or incurred for the account of Tenant from time to time had this Lease not so terminated, and Tenant shall reimburse Landlord therefor or had save Landlord not so re-entered the Premises, payable on the dates that such payments would have otherwise been payable following such termination and until the Termination Date; harmless therefrom upon demand provided, however, that Landlord may not cure any such default described in this subparagraph prior to the expiration of the waiting period established in paragraph 18.01, but only after notice to Tenant if Landlord shall relet the curing of such default prior to the expiration of said waiting period is reasonably necessary to protect the Premises during or Landlord’s interest in the Premises, or to prevent injury or damage to persons or property. If Tenant shall fail to reimburse Landlord upon demand for any amount paid for the account of Tenant hereunder, said period, Landlord amount shall credit Tenant with the net rent received by Landlord from such reletting, such net rents be added to be determined by first deducting an amortized basis (over the term and become due as a part of the new lease) from next payment of Rent due hereunder. Notwithstanding anything to the gross rents as and when received by Landlord from such relettingcontrary contained herein, in the actual and necessary expenses incurred or paid by Landlord in terminating this Lease or in re-entering the Premises and in securing possession thereofcase of emergency, as well as the reasonable expenses of reletting, including altering and preparing the Premises for new tenants, brokers' commissions, attorney's fees, and all other expenses properly chargeable against the Premises and the rental therefrom, it being understood that any such reletting may be for a period shorter or longer than the remaining term of this Lease, but in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages notice required pursuant to this Subsection to a credit paragraph 19 may be given verbally or in respect of any net rents from a reletting, except other reasonably due and sufficient manner having regard to the extent that emergency and the attending circumstances. If any such net rents are actually received notice shall not be given in the manner described in Article XXIII of this lease entitled “Notice,” then as soon thereafter as practicable, such notice shall be followed up by notice given in the manner prescribed in said Article. No entry by Landlord. If , in accordance with the Premises or any part thereof should be relet in combination with other space or otherwiseprovisions of this Article, then proper apportionment on a square foot basis (for equivalent space) shall be made of the rent received from such reletting and of the expenses of reletting. Suit or suits for the recovery of such damages, or any installments of such damages, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require be an eviction of Tenant. Landlord’s performance of any such covenant shall neither subject Landlord to postpone suit until the date when the liability for any loss, inconvenience or damage to Tenant nor be construed as a waiver of Tenant’s default or of any other right or remedy of Landlord in respect of such default, or as a waiver of any covenant, term or condition of this Lease would have expired if it had not been so terminated under the provisions of Section 16.1Lease; or
(c) Immediately, or under any provision of lawusing such force as may be reasonably necessary, or had Landlord not re-entered enter upon the Premises, remove all persons and property therefrom, and store such property in a public warehouse or elsewhere at the sole cost and for the account of Tenant, with reasonable notice but without resort to legal process, without being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby (except for any loss or damage resulting from or caused by the gross negligence or criminal act of Landlord or its employees, agents or contractors), and without such re-entry being deemed to terminate this Lease.
Appears in 1 contract
Samples: Lease Agreement (Rue21, Inc.)
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.1. If In the event of any Event of Default occursdefault provided in the foregoing Section 13.01, Landlord maynot cured within the applicable cure period, notwithstanding the fact that Landlord may have without any further demand or notice Landlord, in addition to pursuing any other rights or remedies hereunder or available at law or in equity, may:
(a) Collect the past due amounts by written notice withdrawing such amount from the Escrow Account;
(b) Elect to terminate this Lease;
(c) In the event that Tenant has failed to perform any of its covenants under this Lease other than a covenant to pay rent, perform the covenant or covenants of Tenant which are in default at Tenant’s cost and expense (entering upon the Leased Premises for such purpose, designate if necessary); and Landlord’s performance of any such covenant shall neither subject Landlord to liability for any loss, inconvenience, or damage to Tenant nor be constructed as a date, not less than ten (10) days after the giving waiver of Tenant’s default or of any other right or remedy of Landlord in respect of such notice, on which this Lease shall terminate; and thereupon, unless the Event of Default is fully and unconditionally cured by Tenant prior to such date, the Term of this Lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the date specified in such notice were the Termination Date and all rights of Tenant hereunder shall expire and terminate but Tenant shall remain liable as provided in this Lease, and Landlord shall have the right to remove all persons, goods, fixtures and chattels from the Premises, by reasonable force or otherwise but all in accordance with applicable Laws, without liability or damages to Tenant.
16.2. If this Lease is terminated as provided in Section 16.1default, or as permitted by lawwaiver of any covenant, Tenant shall peaceably quit and surrender the Premises to Landlordterm, and except as set forth in Section 10.7 or condition of this Lease, Landlord may, without further notice, enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant shall be entitled to possession or to remain in possession of the Premises, and Landlord at its option shall forthwith, notwithstanding any other provision of this Lease, be entitled to recover from Tenant as and for damages either:
(i) the excess, if any, of (1) all Base Rent and Additional Rent (conclusively presuming the Additional Rent to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion of the Term over (2) the aggregate fair rental value of the Premises at the time of termination for such unexpired portion of the Term in each case, discounted at the Prime Rate to the then present worth; or
(iid) amounts equal to the Base Rent and Additional Rent which would have been payable by Tenant from time to time had this Lease not so terminated, or had Landlord not so immediately re-entered enter upon the Leased Premises, payable on remove all persons and property therefrom, and store such property in a public warehouse or elsewhere at the dates that sole cost and for the account of Tenant, all without service of notice or resort to legal process, without being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby, and without such payments would have otherwise been payable following such termination and until the Termination Date; provided, however, that if Landlord shall relet the Premises during said period, Landlord shall credit Tenant with the net rent received by Landlord from such reletting, such net rents to be determined by first deducting an amortized basis (over the term of the new lease) from the gross rents as and when received by Landlord from such reletting, the actual and necessary expenses incurred or paid by Landlord in terminating this Lease or in re-entering the Premises and in securing possession thereof, as well as the reasonable expenses of reletting, including altering and preparing the Premises for new tenants, brokers' commissions, attorney's fees, and all other expenses properly chargeable against the Premises and the rental therefrom, it entry being understood that any such reletting may be for a period shorter or longer than the remaining term of deemed to terminate this Lease, but in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages pursuant to this Subsection to a credit in respect of any net rents from a reletting, except to the extent that such net rents are actually received by Landlord. If the Premises or any part thereof should be relet in combination with other space or otherwise, then proper apportionment on a square foot basis (for equivalent space) shall be made of the rent received from such reletting and of the expenses of reletting. Suit or suits for the recovery of such damages, or any installments of such damages, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Section 16.1, or under any provision of law, or had Landlord not re-entered the Premises.
Appears in 1 contract
Samples: Sublease Agreement
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.1. If In the event of any Event of Default occursdefault set forth in Article 18.01, Landlord mayLandlord, notwithstanding the fact that Landlord in addition to any other rights or remedies it may have other remedies hereunder or at law or in equity, by written notice may do any one or more of the following:
(a) elect to Tenant, designate a date, not less than ten (10) days after the giving of such notice, on which this Lease shall terminate; and thereupon, unless the Event of Default is fully and unconditionally cured by Tenant prior to such date, the Term of terminate this Lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the date specified in such notice were the Termination Date and all rights of Tenant hereunder shall expire and terminate but Tenant shall remain liable as provided in this Lease, and Landlord shall have the Tenant's right to remove all persons, goods, fixtures and chattels from the Premises, by reasonable force or otherwise but all in accordance with applicable Laws, without liability or damages to Tenant.
16.2. If this Lease is terminated as provided in Section 16.1, or as permitted by law, Tenant shall peaceably quit and surrender the Premises to Landlord, and except as set forth in Section 10.7 of this Lease, Landlord may, without further notice, enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant shall be entitled to possession or to remain in possession of the Premises, and Landlord at its option shall forthwith, notwithstanding any other provision of this Lease, be entitled to recover from Tenant as and for damages either:
(i) the excess, if any, of (1) all Base Rent and Additional Rent (conclusively presuming the Additional Rent to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion of the Term over (2) the aggregate fair rental value of the Premises at the time of termination for such unexpired portion of the Term in each case, discounted at the Prime Rate to the then present worthpossession; or
(iib) amounts equal perform, on behalf and at the expense of Tenant (entering upon the Premises for such purpose, if necessary), any obligation of Tenant under this Lease which Tenant has failed to perform, the Base cost of which performance or liability by Landlord shall be deemed Additional Rent and Additional Rent which would have been payable by incurred for the account of Tenant, and Tenant from time to time had this Lease not so terminated, shall reimburse Landlord therefor or had save Landlord not so re-entered the Premises, payable on the dates that such payments would have otherwise been payable following such termination and until the Termination Date; harmless therefrom upon demand provided, however, that Landlord may cure any such default described in this subparagraph prior to the expiration of the cure period established in Section 18.01, but after such notice to Tenant, if Landlord shall relet the curing of such default prior to the expiration of said cure period. is reasonably necessary to protect the Premises during said periodor Landlord's interest in the Premises, Landlord shall credit Tenant with or to prevent injury or damage to persons or property. Notwithstanding anything to the net rent received by Landlord from such relettingcontrary contained herein, such net rents to be determined by first deducting an amortized basis (over in the term case of the new lease) from the gross rents as and when received by Landlord from such relettingemergency, the actual and necessary expenses incurred or paid by Landlord in terminating this Lease or in re-entering the Premises and in securing possession thereof, as well as the reasonable expenses of reletting, including altering and preparing the Premises for new tenants, brokers' commissions, attorney's fees, and all other expenses properly chargeable against the Premises and the rental therefrom, it being understood that any such reletting may be for a period shorter or longer than the remaining term of this Lease, but in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages notice required pursuant to this Subsection to a credit Article 18 may be given verbally or in respect of any net rents from a reletting, except other reasonably due and sufficient manner having regard to the extent that emergency and the attending circumstances. If any such net rents are actually received notice shall not be given in the manner described in Article XXIII of this Lease entitled "Notice", then as soon thereafter as practicable, such notice shall be followed up by notice given in the manner prescribed in said Article. No entry by Landlord. If , in accordance with the Premises or any part thereof should be relet in combination with other space or otherwiseprovisions of this Article, then proper apportionment on a square foot basis (for equivalent space) shall be made of the rent received from such reletting and of the expenses of reletting. Suit or suits for the recovery of such damages, or any installments of such damages, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require be an eviction of Tenant. Landlord's performance of any such covenant shall neither subject Landlord to postpone suit until the date when the liability for any loss, inconvenience or damage to Tenant nor be construed as a waiver of Tenant's default or of any other right or remedy of Landlord in respect of such default, or as a waiver of any covenant, term or condition of this Lease would have expired if it had not been so terminated under the provisions of Section 16.1Lease; or
(c) Using such force as may be reasonably necessary, or under any provision of law, or had Landlord not re-entered enter upon the Premises, remove all persons and property therefrom, and dispose of store such property in a public warehouse or elsewhere at the sole cost and for the account of Tenant, all without service of notice or resort to legal process, without being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby (except for any loss or damage resulting from or caused by the gross negligence or criminal act of Landlord or its employees, agents or contractors), and without such re- entry being deemed to terminate this Lease.
Appears in 1 contract
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT. 16.1. 18.1 If any Event of Default occurs, Landlord maymay at its option, notwithstanding the fact that Landlord may have other remedies hereunder or at law or in equity, by written notice to Tenant, Tenant designate a date, not less than ten (10) days after the giving of such notice, on which this Lease shall terminate; and thereupon, unless the Event of Default is fully and unconditionally cured by Tenant prior to on such date, date the Term of this Lease lease and the estate hereby granted shall expire and terminate on such date with the same force and effect as if the date specified in such notice were was the Termination Date and all rights of Tenant hereunder shall expire and terminate but by Tenant shall remain liable as provided in this Lease, and Landlord shall have the right to remove all persons, goods, fixtures and chattels from the Premises, by reasonable force or otherwise but all in accordance with applicable LawsNew Jersey eviction laws, without liability or damages to Tenant.
16.2. 18.2 If this Lease is terminated as provided in Section 16.118.1, or as permitted by law, Tenant shall peaceably quit and surrender the Premises to Landlord, and except as set forth in Section 10.7 of this Lease, Landlord may, without further notice, enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant by virtue of any law or an order of any court shall be entitled to possession or to remain in possession of the Premises but shall forthwith quit and surrender the Premises, and Landlord at its option shall forthwith, notwithstanding any other provision of this Lease, be entitled to recover from Tenant as and for liquidated damages either:
18.2.1 an amount equal to (i) the excessall Minimum Rent, if any, of (1) all Base Additional Rent and Additional Rent (conclusively presuming the Additional Rent to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion of the Term over (2) the aggregate fair rental value of the Premises at the time of termination for such unexpired portion of the Term in each case, discounted at the Prime Rate to the then present worth; or
(ii) other amounts equal to the Base Rent and Additional Rent which would have been payable by Tenant from time to time had this Lease not so terminated, hereunder then due or had Landlord not so re-entered the Premises, payable on the dates that such payments would have otherwise been payable following such termination accrued and until the Termination Dateunpaid; provided, however, that if Landlord shall relet the Premises during said period, Landlord shall credit Tenant with the net rent received by Landlord from such reletting, such net rents to be determined by first deducting an amortized basis (over the term of the new lease) from the gross rents as and when received by Landlord from such reletting, the actual and necessary expenses incurred or paid by Landlord in terminating this Lease or in re-entering the Premises and in securing possession thereof, as well as the reasonable expenses of reletting, including altering and preparing the Premises for new tenants, brokers' commissions, attorney's fees, and all other expenses properly chargeable against the Premises and the rental therefrom, it being understood that any such reletting may be for a period shorter or longer than the remaining term of this Lease, but in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages pursuant to this Subsection to a credit in respect of any net rents from a reletting, except to the extent that such net rents are actually received by Landlord. If the Premises or any part thereof should be relet in combination with other space or otherwise, then proper apportionment on a square foot basis (for equivalent space) shall be made of the rent received from such reletting and of the expenses of reletting. Suit or suits for the recovery of such damages, or any installments of such damages, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Section 16.1, or under any provision of law, or had Landlord not re-entered the Premises.plus
Appears in 1 contract
Samples: Lease Agreement (Medarex Inc)
