Remedies for Events of Default. 1.1 This Agreement and the Term and rights hereby granted to Grantee are subject to the limitation that if and whenever any Event of Default shall occur, Grantor may at any time thereafter give to Grantee a notice of termination of this Agreement setting forth a termination date three (3) days from the date of the giving of such notice, and, upon the giving of such notice, this Agreement and the term and rights hereby granted (whether or not the Term of the Agreement shall theretofore have commenced) shall expire and terminate upon the expiration of said three (3) days with the same effect as if that day were the date hereinbefore set for the expiration of the Term of the Agreement, but Grantee shall remain liable for damages as provided in Section 2 below. 1.2 If an Event of Default shall have occurred, Grantor and/or Grantor’s agents and employees, whether or not this Agreement shall have been terminated pursuant to this Exhibit “D” may, without notice to Grantee, immediately or at any time thereafter re-enter into or upon the Grantee Space or any part thereof, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwise, to the extent legally permitted, without being liable to indictment, prosecution or damages therefor, and may repossess the same, and may remove any persons or property therefrom, to the end that Grantor may have, hold and enjoy the Grantee Space again as and of its first estate and interest therein. The words “re-enter”, “re-entry” and “re-entered” as used in this Agreement are not restricted to their technical legal meanings. In the event of any termination of this Agreement under the provisions of this Exhibit “D” or in the event that Grantor shall re-enter the Grantee Space under the provisions of this Exhibit “D” or in the event of the termination of this Agreement (or of re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law, Grantee shall thereupon pay to Grantor the Base Colocation Fees, Additional Colocation Fees and any other charges payable hereunder by Grantee to Grantor up to the time of such termination of this Agreement, or of such recovery of possession of the Grantee Space by Grantor, as the case may be, plus the expenses incurred or paid by Grantor in terminating this Agreement or of re-entering the Grantee Space and securing possession thereof, including actual attorneys’ fees and costs of removal and storage of Grantee’s property, and Grantee shall also pay to Grantor damages as provided in Section 2 below. 1.3 In the event of the re-entry into the Grantee Space by Grantor under the provisions of this Exhibit “D”, and if this Agreement shall not be terminated, Grantor may (but shall have absolutely no obligation to do so), not in Grantor’s own name, but as agent for Grantee, grant to a third party the right to use the whole or any part of the Grantee Space for any period equal to or greater or less than the remainder of the remaining original term of this Agreement, for any sum which Grantor may deem suitable, including colocation fees concessions, and for any use and purpose which Grantor may deem appropriate. Such reletting may include any improvements, personalty and trade fixtures remaining in the Grantee Space. 1.4 In the event of a breach or threatened breach on the part of Grantee with respect to any of the covenants, agreements, terms, provisions or conditions on the part of or on behalf of Grantee to be kept, observed or performed, Grantor shall also have the right to obtain injunctive relief. 1.5 In the event of (i) the termination of this Agreement under the provisions of this Exhibit D or (ii) the re-entry of the Grantee Space by Grantor under the provisions of this Exhibit “D”, or (iii) the termination of this Agreement (or re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law by reason of default hereunder on the part of Grantee, Grantor shall be entitled to retain all monies, if any, paid by Grantee to Grantor, whether as advance colocation fees, security deposit or otherwise, but such monies shall be credited by Grantor against any Base Colocation Fees, Additional Colocation Fees or any other charge due from Grantee at the time of such termination or replacement of Grantee or, at Grantor’s option, against any damages payable by Grantee under Section 2 of this Exhibit “D” or pursuant to law. 1.6 The specified remedies to which Grantor may resort under this Agreement are cumulative and concurrent, and are not intended to be exclusive of each other or of any other remedies or means of redress to which Grantor may lawfully be entitled at any time, and Grantor may invoke any remedy allowed under this Agreement or at law or in equity as if specific remedies were not herein provided for, and the exercise by Grantor of any one or more of the remedies allowed under this Agreement or in law or in equity shall not preclude the simultaneous or later exercise by the Grantor of any or all other remedies allowed under this Agreement or in law or in equity.
Appears in 2 contracts
Samples: Colocation Agreement, Colocation Agreement (Telx Group, Inc.)
Remedies for Events of Default. 1.1 This Agreement and the Term and rights hereby granted to Grantee are subject to the limitation that if and whenever If any Event of Default shall occur(other than an Event of Default arising from certain events of bankruptcy or insolvency with respect to the Company) occurs and is continuing under the Indenture, Grantor may the Holders of at least 25% in principal amount of the Outstanding Notes issued under the Indenture may, and the Trustee at the request of such Holders shall, declare the principal, premium, if any, interest and any time thereafter give other monetary Obligations on all the Outstanding Notes issued under the Indenture to Grantee be due and payable immediately by a notice of termination of this Agreement setting forth a termination date three in writing to the Company (3) days from and to the date of Trustee if given by the giving of such notice, and, upon the giving of such notice, this Agreement and the term and rights hereby granted (whether or not the Term of the Agreement shall theretofore have commenced) shall expire and terminate upon the expiration of said three (3) days with the same effect as if that day were the date hereinbefore set for the expiration of the Term of the Agreement, but Grantee shall remain liable for damages as provided in Section 2 below.
1.2 Holders). If an Event of Default shall have occurred, Grantor and/or Grantor’s agents and employees, whether arising from certain events of bankruptcy or not this Agreement shall have been terminated pursuant to this Exhibit “D” may, without notice to Grantee, immediately or at any time thereafter re-enter into or upon the Grantee Space or any part thereof, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwise, insolvency with respect to the extent legally permittedCompany occurs and is continuing, then the principal amount of all Outstanding Notes shall ipso facto become and be immediately due and payable without being liable to indictmentany notice, prosecution or damages therefor, and may repossess the same, and may remove any persons or property therefrom, to the end that Grantor may have, hold and enjoy the Grantee Space again as and of its first estate and interest therein. The words “re-enter”, “re-entry” and “re-entered” as used in this Agreement are not restricted to their technical legal meanings. In the event of any termination of this Agreement under the provisions of this Exhibit “D” or in the event that Grantor shall re-enter the Grantee Space under the provisions of this Exhibit “D” or in the event of the termination of this Agreement (or of re-entry and replacement of Grantee) by or under any summary dispossess declaration or other proceeding or action or any provision of law, Grantee shall thereupon pay to Grantor the Base Colocation Fees, Additional Colocation Fees and any other charges payable hereunder by Grantee to Grantor up to the time of such termination of this Agreement, or of such recovery of possession of the Grantee Space by Grantor, as the case may be, plus the expenses incurred or paid by Grantor in terminating this Agreement or of re-entering the Grantee Space and securing possession thereof, including actual attorneys’ fees and costs of removal and storage of Grantee’s property, and Grantee shall also pay to Grantor damages as provided in Section 2 below.
1.3 In the event of the re-entry into the Grantee Space by Grantor under the provisions of this Exhibit “D”, and if this Agreement shall not be terminated, Grantor may (but shall have absolutely no obligation to do so), not in Grantor’s own name, but as agent for Grantee, grant to a third party the right to use the whole or any part of the Grantee Space for any period equal to or greater or less than the remainder of the remaining original term of this Agreement, for any sum which Grantor may deem suitable, including colocation fees concessions, and for any use and purpose which Grantor may deem appropriate. Such reletting may include any improvements, personalty and trade fixtures remaining in the Grantee Space.
1.4 In the event of a breach or threatened breach act on the part of Grantee the Trustee or any Holder. Subject to the provisions of the Indenture relating to the duties of the Trustee, in case an Event of Default occurs and is continuing, the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by the Indenture at the request or direction of any of the Holders pursuant to the Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses, losses and liabilities which might be incurred by it in compliance with such request or direction. Subject to certain restrictions, the Holders of not less than a majority in principal amount of the Outstanding Notes shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee. The Trustee, however, may refuse to follow any direction that conflicts with law or the Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder of a Note or that would involve the Trustee in personal liability. Notwithstanding the foregoing, notice of and Event of Default may not be given with respect to any action taken, and reported publicly or to Holders, more than two years prior to such notice of Event of Default, and any time period in the covenantsIndenture to cure any actual or alleged Default or Event of Default may be extended or stayed by a court of competent jurisdiction. In addition, agreementsany notice of Default, termsnotice of acceleration or instruction to the Trustee to provide a notice of Default, provisions notice of acceleration or conditions on the part of or on behalf of Grantee to be kept, observed or performed, Grantor shall also have the right to obtain injunctive relief.
1.5 In the event of (i) the termination of this Agreement under the provisions of this Exhibit D or (ii) the re-entry of the Grantee Space by Grantor under the provisions of this Exhibit “D”, or (iii) the termination of this Agreement (or re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law by reason of default hereunder on the part of Grantee, Grantor shall be entitled to retain all monies, if any, paid by Grantee to Grantor, whether as advance colocation fees, security deposit or otherwise, but such monies shall be credited by Grantor against any Base Colocation Fees, Additional Colocation Fees or take any other charge due from Grantee at the time of such termination or replacement of Grantee or, at Grantor’s option, against any damages payable action (a “Noteholder Direction”) provided by Grantee under Section 2 of this Exhibit “D” or pursuant to law.
1.6 The specified remedies to which Grantor may resort under this Agreement are cumulative and concurrent, and are not intended to be exclusive of each other or of any other remedies or means of redress to which Grantor may lawfully be entitled at any time, and Grantor may invoke any remedy allowed under this Agreement or at law or in equity as if specific remedies were not herein provided for, and the exercise by Grantor of any one or more Holders must be accompanied by a written representation from each such Holder to the Company and the Trustee that such Holder is not (or, in the case such Holder is the Depository Trust Company or its nominee, that such Holder is being instructed solely by beneficial owners that are not) Net Short, which representation, in the case of a Noteholder Direction relating to a notice of Default shall be deemed repeated at all times until the resulting Event of Default is cured or otherwise ceases to exist or the notes are accelerated. For more details, see Section 501 of the remedies allowed under this Agreement or in law or in equity shall not preclude the simultaneous or later exercise by the Grantor of any or all other remedies allowed under this Agreement or in law or in equityIndenture.
Appears in 2 contracts
Samples: Indenture (Kaiser Aluminum Corp), Indenture (Kaiser Aluminum Corp)
Remedies for Events of Default. 1.1 This Agreement Upon the occurrence and during the Term and rights hereby granted to Grantee are subject to the limitation that if and whenever any Event continuance of Default shall occur, Grantor may at any time thereafter give to Grantee a notice of termination of this Agreement setting forth a termination date three (3) days from the date of the giving of such notice, and, upon the giving of such notice, this Agreement and the term and rights hereby granted (whether or not the Term of the Agreement shall theretofore have commenced) shall expire and terminate upon the expiration of said three (3) days with the same effect as if that day were the date hereinbefore set for the expiration of the Term of the Agreement, but Grantee shall remain liable for damages as provided in Section 2 below.
1.2 If an Event of Default shall have occurredDefault, Grantor and/or Grantor’s agents and employees, whether or not this Agreement shall have been terminated pursuant to this Exhibit “D” the Credit Parties may, without further notice to Granteeof default, immediately presentment or at any time thereafter redemand for payment, protest or notice of non-enter into payment or upon the Grantee Space or any part thereof, either by summary dispossess proceedings or by any suitable action or proceeding at lawdishonor, or by force other notices or otherwisedemands of any kind, all such notices and demands being waived (to the extent legally permitted, without being liable to indictment, prosecution or damages therefor, and may repossess the same, and may remove any persons or property therefrom, to the end that Grantor may have, hold and enjoy the Grantee Space again as and of its first estate and interest therein. The words “re-enter”, “re-entry” and “re-entered” as used in this Agreement are not restricted to their technical legal meanings. In the event of any termination of this Agreement under the provisions of this Exhibit “D” or in the event that Grantor shall re-enter the Grantee Space under the provisions of this Exhibit “D” or in the event of the termination of this Agreement (or of re-entry and replacement of Grantee) permitted by or under any summary dispossess or other proceeding or action or any provision of law, Grantee shall thereupon pay to Grantor the Base Colocation Fees, Additional Colocation Fees and any other charges payable hereunder by Grantee to Grantor up to the time of such termination of this Agreement, or of such recovery of possession of the Grantee Space by Grantor, as the case may be, plus the expenses incurred or paid by Grantor in terminating this Agreement or of re-entering the Grantee Space and securing possession thereof, including actual attorneys’ fees and costs of removal and storage of Grantee’s property, and Grantee shall also pay to Grantor damages as provided in Section 2 below.
1.3 In the event of the re-entry into the Grantee Space by Grantor under the provisions of this Exhibit “D”, and if this Agreement shall not be terminated, Grantor may (but shall have absolutely no obligation to do soGovernmental Rules), not in Grantor’s own name, but as agent for Grantee, grant to a third party the right to use the whole exercise any or any part of the Grantee Space for any period equal to or greater or less than the remainder of the remaining original term of this Agreement, for any sum which Grantor may deem suitable, including colocation fees concessions, all rights and for any use and purpose which Grantor may deem appropriate. Such reletting may include any improvements, personalty and trade fixtures remaining in the Grantee Space.
1.4 In the event of a breach or threatened breach on the part of Grantee with respect to any of the covenants, agreements, terms, provisions or conditions on the part of or on behalf of Grantee to be kept, observed or performed, Grantor shall also have the right to obtain injunctive relief.
1.5 In the event of (i) the termination of this Agreement under the provisions of this Exhibit D or (ii) the re-entry of the Grantee Space by Grantor under the provisions of this Exhibit “D”, or (iii) the termination of this Agreement (or re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law by reason of default hereunder on the part of Grantee, Grantor shall be entitled to retain all monies, if any, paid by Grantee to Grantor, whether as advance colocation fees, security deposit or otherwise, but such monies shall be credited by Grantor against any Base Colocation Fees, Additional Colocation Fees or any other charge due from Grantee at the time of such termination or replacement of Grantee or, at Grantor’s option, against any damages payable by Grantee under Section 2 of this Exhibit “D” or pursuant to law.
1.6 The specified remedies to which Grantor may resort under this Agreement are cumulative and concurrent, and are not intended to be exclusive of each other or of any other remedies or means of redress to which Grantor may lawfully be entitled at any time, and Grantor may invoke any remedy allowed under this Agreement or at law or in equity as if specific remedies were not herein provided for(in any combination or order that the Credit Parties, may elect), including, without limitation or prejudice to the Credit Parties’ other rights and remedies, the following:
(i) (A) refuse, and the exercise Administrative Agent in its capacity as the Collateral Agent or any Credit Party shall not be obligated, to make or guarantee any further Advances or any payments from any Project Account or any Account Proceeds or other funds held by Grantor the Administrative Agent in its capacity as the Collateral Agent by or on behalf of the Borrower, and (B) suspend or terminate the DOE Credit Facility Commitment;
(ii) take those actions necessary to perfect and maintain the Liens of the Security Documents;
(iii) declare and make all sums of outstanding principal and accrued but unpaid interest remaining under this Common Agreement and the other Loan Documents together with all unpaid fees, Periodic Expenses and charges due hereunder or under any other Loan Document, payable on demand or immediately due and payable, whereupon such amounts shall immediately mature and become due and payable;
(iv) enter into possession of the Project (or any portion thereof) and perform any and all work and labor necessary to complete the Project (or any portion thereof) or to operate and maintain the Project (or any portion thereof), or otherwise foreclose upon or take possession of any one or more Collateral Security and all sums expended by any such Person in so doing, together with interest on such amount at the Late Charge Rate, shall be repaid by the Borrower to such Person upon demand and shall be secured by the Security Documents, notwithstanding that such expenditures may, together with the aggregate amount of Advances under the DOE Credit Facility, exceed the amount of the total DOE Credit Facility Commitment;
(v) set off and apply such amounts to the satisfaction of the Secured Obligations under all of the Loan Documents, including (A) all monies on deposit in any Project Account, (B) any Account Proceeds, (C) any Equity Contributions including any Reserve Letters of Credit, or (D) any other moneys of the Borrower on deposit with the Administrative Agent in its capacity as the Collateral Agent or any Credit Party;
(vi) prior to the Project Completion Date, require the Sponsor to make an Equity Contribution in an amount equal to the Overrun Equity Commitment or exercise any remedies allowed pursuant to the Completion Guaranty;
(vii) take any other action, as determined by any of the Credit Parties in its sole discretion, to cure such Event of Default, if and to the extent that such Event of Default is susceptible of cure by any of the Credit Parties, and all sums expended by any such Person in so doing, together with interest on such amount at the Late Charge Rate, shall be repaid by the Borrower to such Person upon demand and shall be secured by the Security Documents, notwithstanding that such expenditures may, together with the aggregate amount of Advances under the DOE Credit Facility, exceed the amount of the total DOE Credit Facility Commitment;
(viii) take any other action, as determined by any of the Credit Parties in its sole discretion, necessary to protect and preserve the Collateral, and all sums expended by any such Person in so doing, together with interest on such amount at the Late Charge Rate, shall be repaid by the Borrower to such Person upon demand and shall be secured by the Security Documents, notwithstanding that such expenditures may, together with the aggregate amount of Advances under the DOE Credit Facility, exceed the amount of the total DOE Credit Facility Commitment;
(ix) proceed to protect and enforce its rights and remedies by appropriate proceedings, whether for damages or the specific performance of any provision of this Common Agreement or in law any other Transaction Document, or in equity shall not preclude aid of the simultaneous or later exercise by the Grantor of any or all other remedies allowed under power granted in this Common Agreement or any other Transaction Document, or by law, or proceed to enforce the payment of any amount due and payable; and
(x) exercise any and all rights and remedies available to it under any of the Transaction Documents with respect to the Project, the Borrower, the Sponsor, Holdings and any other Project Participant and under the Collateral Security or otherwise under Governmental Rules; and
(xi) in law or in equityaccordance with Section 609.10(e)(4) of the Applicable Loan Guarantee Requirements, take such other actions as DOE may reasonably require to provide for the care, preservation, protection, and maintenance of all Collateral so as to enable the United States to achieve maximum recovery upon default by Borrower on the DOE-Guaranteed Loans.
Appears in 2 contracts
Samples: Common Agreement (Beacon Power Corp), Common Agreement (Beacon Power Corp)
Remedies for Events of Default. 1.1 This Agreement (a) Upon the occurrence and during the Term continuance of an Event of Default, DOE may, in its discretion, without further notice of default, presentment or demand for payment, protest or notice of non-payment or dishonor, or other notices or demands of any kind, all such notices and rights hereby granted to Grantee are subject demands being waived (to the limitation extent not prohibited by Governmental Rules), pursue all rights and remedies available to DOE that if are contemplated by this Agreement in the manner, upon the conditions, and whenever any Event with the effect provided in this Agreement, including a suit for specific performance, injunctive relief or compensatory damages. DOE is hereby authorized, to the maximum extent permitted by Governmental Rules, to demand specific performance of Default shall occur, Grantor may this Agreement at any time thereafter give when the Borrower shall have failed to Grantee a notice of termination comply with any provision of this Agreement setting forth applicable to it. The Borrower hereby irrevocably waives, to the maximum extent permitted by Governmental Rules, any defense based on the adequacy of a termination date three (3) days from remedy at law that might be asserted as a bar to such remedy for specific performance. Nothing herein shall limit the date right of DOE to pursue all rights and remedies available to a creditor at law or in equity following the giving occurrence of such notice, and, upon the giving of such notice, this Agreement and the term and rights hereby granted (whether or not the Term of the Agreement shall theretofore have commenced) shall expire and terminate upon the expiration of said three (3) days with the same effect as if that day were the date hereinbefore set for the expiration of the Term of the Agreement, but Grantee shall remain liable for damages as provided in Section 2 below.
1.2 If an Event of Default shall have occurredDefault, Grantor and/or Grantor’s agents and employees, whether or not this Agreement shall have been terminated pursuant to this Exhibit “D” may, without notice to Grantee, immediately or at any time thereafter re-enter into or upon the Grantee Space or any part thereof, either by summary dispossess proceedings right or by any suitable action or proceeding at law, or by force or otherwise, remedy available to the extent legally permitted, without being liable to indictment, prosecution or damages therefor, and may repossess the same, and may remove any persons or property therefrom, to the end that Grantor may have, hold and enjoy the Grantee Space again DOE as and a “Holder” of its first estate and interest therein. The words an “re-enter”, “re-entryObligation” and “re-entered” as used in this Agreement are not restricted to their technical legal meanings. In the event of any termination of this Agreement under the provisions Mortgage Indenture. Each right, power and remedy of this Exhibit “D” or in the event that Grantor shall re-enter the Grantee Space under the provisions of this Exhibit “D” or in the event of the termination of this Agreement (or of re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law, Grantee shall thereupon pay to Grantor the Base Colocation Fees, Additional Colocation Fees and any other charges payable hereunder by Grantee to Grantor up to the time of such termination of this Agreement, or of such recovery of possession of the Grantee Space by Grantor, as the case may be, plus the expenses incurred or paid by Grantor in terminating this Agreement or of re-entering the Grantee Space and securing possession thereof, including actual attorneys’ fees and costs of removal and storage of Grantee’s property, and Grantee shall also pay to Grantor damages as provided in Section 2 below.
1.3 In the event of the re-entry into the Grantee Space by Grantor under the provisions of this Exhibit “D”, and if this Agreement shall not be terminated, Grantor may (but shall have absolutely no obligation to do so), not in Grantor’s own name, but as agent for Grantee, grant to a third party the right to use the whole or any part of the Grantee Space for any period equal to or greater or less than the remainder of the remaining original term of this Agreement, for any sum which Grantor may deem suitable, including colocation fees concessions, and for any use and purpose which Grantor may deem appropriate. Such reletting may include any improvements, personalty and trade fixtures remaining in the Grantee Space.
1.4 In the event of a breach or threatened breach on the part of Grantee with respect to any of the covenants, agreements, terms, provisions or conditions on the part of or on behalf of Grantee to be kept, observed or performed, Grantor shall also have the right to obtain injunctive relief.
1.5 In the event of (i) the termination of this Agreement under the provisions of this Exhibit D or (ii) the re-entry of the Grantee Space by Grantor under the provisions of this Exhibit “D”, or (iii) the termination of this Agreement (or re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law by reason of default hereunder on the part of Grantee, Grantor DOE shall be entitled to retain all monies, if any, paid by Grantee to Grantor, whether as advance colocation fees, security deposit or otherwise, but such monies shall be credited by Grantor against any Base Colocation Fees, Additional Colocation Fees or any other charge due from Grantee at the time of such termination or replacement of Grantee or, at Grantor’s option, against any damages payable by Grantee under Section 2 of this Exhibit “D” or pursuant to law.
1.6 The specified remedies to which Grantor may resort under this Agreement are cumulative and concurrent, and are recourse to one or more rights or remedies shall not intended to be exclusive of each other or constitute a waiver of any other right, power or remedy.
(b) Upon the occurrence and during the continuance of an Event of Default, DOE may, in its sole discretion, exercise any or all rights and remedies or means of redress to which Grantor may lawfully be entitled at any time, and Grantor may invoke any remedy allowed under this Agreement or at law or in equity as if specific remedies were not herein provided for(in any combination or order that DOE may elect), including, without prejudice to DOE’s other rights and remedies, the following:
(A) refuse, and DOE and FFB shall not be obligated, to make or guarantee any further Advances, and (B) suspend or terminate the FFB Credit Facility Commitment;
(ii) charge interest at the FFB Late Charge Rate on any amounts not paid when due; and
(iii) exercise by Grantor of any one or more and all rights and remedies available to it under any of the Transaction Documents (other than the Mortgage Indenture) with respect to the Project, the Borrower, the Owners and any other Project Participant.
(c) In addition to, and without limitation of, the rights and remedies allowed under this Agreement or described in law or clause (b) above, upon the occurrence and during the continuance of an Event of Default as described in equity shall not preclude the simultaneous or later exercise by the Grantor of any or all other remedies allowed under this Agreement or in law or in equity.Section 8.1(m) (
Appears in 2 contracts
Samples: Loan Guarantee Agreement (Oglethorpe Power Corp), Loan Guarantee Agreement (Oglethorpe Power Corp)
Remedies for Events of Default. 1.1 This Agreement and the Term and rights hereby granted to Grantee are subject to the limitation that if and whenever If any Event of Default shall occur(other than an Event of Default arising from certain events of bankruptcy or insolvency with respect to the Company) occurs and is continuing under the Indenture, Grantor may the Holders of at least 25% in principal amount of the Outstanding Notes issued under the Indenture may, and the Trustee at the request of such Holders shall, declare the principal, premium, if any, interest and any time thereafter give other monetary Obligations on all the Outstanding Notes issued under the Indenture to Grantee be due and payable immediately by a notice of termination of this Agreement setting forth a termination date three in writing to the Company (3) days from and to the date of Trustee if given by the giving of such notice, and, upon the giving of such notice, this Agreement and the term and rights hereby granted (whether or not the Term of the Agreement shall theretofore have commenced) shall expire and terminate upon the expiration of said three (3) days with the same effect as if that day were the date hereinbefore set for the expiration of the Term of the Agreement, but Grantee shall remain liable for damages as provided in Section 2 below.
1.2 Holders). If an Event of Default shall have occurred, Grantor and/or Grantor’s agents and employees, whether arising from certain events of bankruptcy or not this Agreement shall have been terminated pursuant to this Exhibit “D” may, without notice to Grantee, immediately or at any time thereafter re-enter into or upon the Grantee Space or any part thereof, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwise, insolvency with respect to the extent legally permittedCompany occurs and is continuing, then the principal amount of all Outstanding Notes shall ipso facto become and be immediately due and payable without being liable to indictmentany notice, prosecution or damages therefor, and may repossess the same, and may remove any persons or property therefrom, to the end that Grantor may have, hold and enjoy the Grantee Space again as and of its first estate and interest therein. The words “re-enter”, “re-entry” and “re-entered” as used in this Agreement are not restricted to their technical legal meanings. In the event of any termination of this Agreement under the provisions of this Exhibit “D” or in the event that Grantor shall re-enter the Grantee Space under the provisions of this Exhibit “D” or in the event of the termination of this Agreement (or of re-entry and replacement of Grantee) by or under any summary dispossess declaration or other proceeding or action or any provision of law, Grantee shall thereupon pay to Grantor the Base Colocation Fees, Additional Colocation Fees and any other charges payable hereunder by Grantee to Grantor up to the time of such termination of this Agreement, or of such recovery of possession of the Grantee Space by Grantor, as the case may be, plus the expenses incurred or paid by Grantor in terminating this Agreement or of re-entering the Grantee Space and securing possession thereof, including actual attorneys’ fees and costs of removal and storage of Grantee’s property, and Grantee shall also pay to Grantor damages as provided in Section 2 below.
1.3 In the event of the re-entry into the Grantee Space by Grantor under the provisions of this Exhibit “D”, and if this Agreement shall not be terminated, Grantor may (but shall have absolutely no obligation to do so), not in Grantor’s own name, but as agent for Grantee, grant to a third party the right to use the whole or any part of the Grantee Space for any period equal to or greater or less than the remainder of the remaining original term of this Agreement, for any sum which Grantor may deem suitable, including colocation fees concessions, and for any use and purpose which Grantor may deem appropriate. Such reletting may include any improvements, personalty and trade fixtures remaining in the Grantee Space.
1.4 In the event of a breach or threatened breach act on the part of Grantee the Trustee or any Holder. Subject to the provisions of the Indenture relating to the duties of the Trustee, in case an Event of Default occurs and is continuing, the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by the Indenture at the request or direction of any of the Holders pursuant to the Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses, losses and liabilities which might be incurred by it in compliance with such request or direction. Subject to certain restrictions, the Holders of not less than a majority in principal amount of the Outstanding Notes shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee. The Trustee, however, may refuse to follow any direction that conflicts with law or the Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder of a Note or that would involve the Trustee in personal liability. Notwithstanding the foregoing, notice of and Event of Default may not be given with respect to any action taken, and reported publicly or to Holders, more than two years prior to such notice of Event of Default, and any time period in the covenantsIndenture to cure any actual or alleged Default or Event of Default may be extended or stayed by a court of competent jurisdiction. In addition, agreementsany notice of Default, termsnotice of continuing Event of Default or notice of acceleration or instruction to the Trustee to provide a notice of Default, provisions notice of acceleration or conditions on the part of or on behalf of Grantee to be kept, observed or performed, Grantor shall also have the right to obtain injunctive relief.
1.5 In the event of (i) the termination of this Agreement under the provisions of this Exhibit D or (ii) the re-entry of the Grantee Space by Grantor under the provisions of this Exhibit “D”, or (iii) the termination of this Agreement (or re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law by reason of default hereunder on the part of Grantee, Grantor shall be entitled to retain all monies, if any, paid by Grantee to Grantor, whether as advance colocation fees, security deposit or otherwise, but such monies shall be credited by Grantor against any Base Colocation Fees, Additional Colocation Fees or take any other charge due from Grantee at the time action relating to a default or Event of such termination Default other than a payment default or replacement of Grantee or, at Grantor’s option, against a bankruptcy or insolvency default with respect to any damages payable notes (a “Special Noteholder Direction”) provided by Grantee under Section 2 of this Exhibit “D” or pursuant to law.
1.6 The specified remedies to which Grantor may resort under this Agreement are cumulative and concurrent, and are not intended to be exclusive of each other or of any other remedies or means of redress to which Grantor may lawfully be entitled at any time, and Grantor may invoke any remedy allowed under this Agreement or at law or in equity as if specific remedies were not herein provided for, and the exercise by Grantor of any one or more Holders of such notes (other than a Regulated Bank) must be accompanied by a separate written representation from each such Holder to the Company and the Trustee that such Holder is not (or, in the case such Holder is the Depository Trust Company or its nominee, that such Holder is being instructed solely by beneficial owners that are not) Net Short, which representation, in the case of a Special Noteholder Direction relating to a notice of Default shall be deemed repeated at all times until the resulting Event of Default is cured or otherwise ceases to exist or the notes are accelerated. For more details, see Section 501 of the remedies allowed under this Agreement or in law or in equity shall not preclude the simultaneous or later exercise by the Grantor of any or all other remedies allowed under this Agreement or in law or in equityIndenture.
Appears in 1 contract
Samples: Indenture (Kaiser Aluminum Corp)
Remedies for Events of Default. 1.1 This Agreement and the Term and rights hereby granted to Grantee are subject to the limitation that if and whenever any Event of Default shall occur, Grantor may at any time thereafter give to Grantee a notice of termination of this Agreement setting forth a termination date three (3a) days from the date of the giving of such notice, and, upon the giving of such notice, this Agreement and the term and rights hereby granted (whether or not the Term of the Agreement shall theretofore have commenced) shall expire and terminate upon the expiration of said three (3) days with the same effect as if that day were the date hereinbefore set for the expiration of the Term of the Agreement, but Grantee shall remain liable for damages as provided in Section 2 below.
1.2 If an Event of Default occurs, and is not cured or waived within the time permitted under Section 6.01 above, if applicable, the Non- Defaulting Party shall have occurred, Grantor and/or Grantor’s agents and employees, whether or not possess the right to terminate this Agreement shall have been terminated pursuant to this Exhibit “D” may, without upon written notice to Grantee, immediately (by facsimile or at any time thereafter re-enter into or upon the Grantee Space or any part thereof, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwise, other reasonable means) to the extent legally permittedDefaulting Party, without being liable such notice of termination to indictment, prosecution or damages therefor, and may repossess the same, and may remove any persons or property therefrom, to the end that Grantor may have, hold and enjoy the Grantee Space again as and of its first estate and interest thereinbe effective immediately upon receipt. The words payment associated with termination (“re-enterTermination Payment”) shall be the aggregate of the Market Value and Costs calculated in accordance with Section 6.03, “re-entry” and “re-entered” as used in this Agreement are not restricted but, subject to their technical legal meanings. In the event of any termination of this Agreement under the provisions of this Exhibit “D” or Section 6.02(b) and the last paragraph of Section 6.03 hereof, in no event to exceed the event that Grantor shall re-enter lesser of the Grantee Space under actual pecuniary loss suffered by the provisions of this Exhibit “D” or in the event Department as a result of the termination of this Agreement (or of re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law, Grantee shall thereupon pay to Grantor the Base Colocation Fees, Additional Colocation Fees and any other charges payable hereunder by Grantee to Grantor up to the time of such termination of this Agreement, or of such recovery of possession total amount of the Grantee Space by Grantor, as the case may be, plus the expenses incurred or paid by Grantor in terminating this Agreement or of re-entering the Grantee Space and securing possession thereofCredit Guarantee Fund, including actual attorneys’ fees and costs accrued interest, on the date of removal and storage of Grantee’s property, and Grantee shall also pay termination. Subject to Grantor damages as provided in Section 2 below.
1.3 In the event of the re-entry into the Grantee Space by Grantor under the provisions of this Exhibit “D”Section 6.02 (b) and the last paragraph of Section 6.03 hereof, the Termination Payment shall be the sole and if this Agreement shall not be terminatedexclusive remedy for the Non-Defaulting Party for a termination hereunder. Prior to receipt of such notice of termination by the Defaulting Party, Grantor the Non-Defaulting Party may (but shall have absolutely no obligation exercise any remedies available to do so)it at law or otherwise, not in Grantor’s own nameincluding, but as agent for Granteenot limited to, grant to a third party the right to use seek injunctive relief to prevent irreparable injury to the whole or Non-Defaulting Party.
(b) Upon termination, the Non-Defaulting Party may withhold any part of payments it owes to the Grantee Space Defaulting Party for any period equal obligations incurred prior to or greater or less than termination under this Agreement until the remainder of Defaulting Party pays the remaining original term of this Agreement, for any sum which Grantor may deem suitable, including colocation fees concessions, and for any use and purpose which Grantor may deem appropriate. Such reletting may include any improvements, personalty and trade fixtures remaining in Termination Payment to the Grantee SpaceNon-Defaulting Party.
1.4 In the event of a breach or threatened breach on the part of Grantee with respect to any of the covenants, agreements, terms, provisions or conditions on the part of or on behalf of Grantee to be kept, observed or performed, Grantor (c) The Seller shall also have the right to obtain injunctive reliefsell the Unit Contingent Energy generated by the Facility to any third party upon commercially reasonable terms during any period when the Buyer is in default in its payment obligations under this Agreement for a period of fifteen (15) days or more after written notice of such default is given by the Seller to the Buyer, whether or not such default is due to an Uncontrollable Force.
1.5 In (d) Notwithstanding the event of (i) the foregoing, termination of this Agreement under shall be the provisions of this Exhibit D or (ii) the re-entry sole and exclusive remedy of the Grantee Space by Grantor Non-Defaulting Party for Events of Default under the provisions of this Exhibit “D”, or (iiiSections 6.01(e) the termination of this Agreement (or re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law by reason of default hereunder on the part of Grantee, Grantor shall be entitled to retain all monies, if any, paid by Grantee to Grantor, whether as advance colocation fees, security deposit or otherwise, but such monies shall be credited by Grantor against any Base Colocation Fees, Additional Colocation Fees or any other charge due from Grantee at the time of such termination or replacement of Grantee or, at Grantor’s option, against any damages payable by Grantee under Section 2 of this Exhibit “D” or pursuant to law6.01(f).
1.6 The specified remedies to which Grantor may resort under this Agreement are cumulative and concurrent, and are not intended to be exclusive of each other or of any other remedies or means of redress to which Grantor may lawfully be entitled at any time, and Grantor may invoke any remedy allowed under this Agreement or at law or in equity as if specific remedies were not herein provided for, and the exercise by Grantor of any one or more of the remedies allowed under this Agreement or in law or in equity shall not preclude the simultaneous or later exercise by the Grantor of any or all other remedies allowed under this Agreement or in law or in equity.
Appears in 1 contract
Remedies for Events of Default. 1.1 This Agreement (a) Upon the occurrence and during the Term continuance of an Event of Default, DOE may, in its discretion, without further notice of default, presentment or demand for payment, protest or notice of non-payment or dishonor, or other notices or demands of any kind, all such notices and rights hereby granted to Grantee are subject demands being waived (to the limitation extent not prohibited by Governmental Rules), exercise any or all rights and remedies at law or in equity (in any combination or order that if DOE may elect), including, without prejudice to DOE’s other rights and whenever remedies, the following:
(i) suspend or terminate the FFB Credit Facility Commitment;
(ii) refuse, and DOE shall not be obligated, to review any Event of Default shall occur, Grantor may at Advance Notices or forward to FFB any time thereafter give FFB Advance Request Approval Notices;
(iii) take those actions necessary to Grantee a notice of termination of this Agreement setting forth a termination date three (3) days from perfect and maintain the date Liens of the giving Security Documents;
(iv) declare and make all sums of such notice, and, upon outstanding principal and accrued but unpaid interest under the giving of such noticeFFB Credit Facility Documents, this Agreement and the term other Loan Documents together with all unpaid fees, Periodic Expenses and rights hereby granted other amounts due hereunder or under any other Loan Document, payable on demand or immediately due and payable, whereupon such amounts shall immediately mature and become due and payable;
(whether or not the Term v) enter into possession of the Agreement shall theretofore have commencedCollateral (or any portion thereof) shall expire and terminate perform any and all work and labor necessary to complete the Borrower’s Undivided Interest (or any portion thereof) or to operate and maintain the Borrower’s Undivided Interest (or any portion thereof), or otherwise foreclose upon the expiration or take possession of said three (3) days any Collateral, in each case in accordance with the same effect as if Security Documents and the Direct Agreements, and all sums expended by any such Person in taking any such action (other than any amount expended for Completion Costs), together with interest on such amount at the FFB Late Charge Rate, shall be repaid by the Borrower to such Person upon demand and shall be secured by the Security Documents, notwithstanding that day were such expenditures may, together with the date hereinbefore aggregate amount of Advances under the DOE Guaranteed Loan, exceed the amount of the total FFB Credit Facility Commitment;
(vi) otherwise foreclose upon or take possession and cause the sale or disposition of any Collateral in accordance with the Security Documents and the Direct Agreements;
(vii) set off and apply proceeds of any sale or disposition of Collateral to the satisfaction of the Secured Obligations under all of the Loan Documents in accordance with the Security Documents and the Direct Agreements;
(viii) cure defaults in accordance with the Security Documents and the Direct Agreements;
(ix) charge interest at the FFB Late Charge Rate on any amounts not paid when due;
(x) proceed to protect and enforce its rights and remedies by appropriate proceedings, including to enforce the payment of any amount due and payable under the Loan Documents, for damages, or for the expiration of the Term of the Agreement, but Grantee shall remain liable for damages as provided in Section 2 below.
1.2 If an Event of Default shall have occurred, Grantor and/or Grantor’s agents and employees, whether or not this Agreement shall have been terminated pursuant to this Exhibit “D” may, without notice to Grantee, immediately or at any time thereafter re-enter into or upon the Grantee Space or any part thereof, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwise, to the extent legally permitted, without being liable to indictment, prosecution or damages therefor, and may repossess the same, and may remove any persons or property therefrom, to the end that Grantor may have, hold and enjoy the Grantee Space again as and of its first estate and interest therein. The words “re-enter”, “re-entry” and “re-entered” as used in this Agreement are not restricted to their technical legal meanings. In the event specific performance of any termination provision of this Agreement or any other Transaction Document;
(xi) exercise any and all rights and remedies available to it under the provisions of this Exhibit “D” or in the event that Grantor shall re-enter the Grantee Space under the provisions of this Exhibit “D” or in the event any of the termination of this Agreement (or of re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of lawTransaction Documents with respect to the Project, Grantee shall thereupon pay to Grantor the Base Colocation FeesBorrower, Additional Colocation Fees the Owners and any other charges payable hereunder by Grantee Project Participant and under the Collateral or otherwise under Governmental Rules; and
(xii) take such other actions as DOE may reasonably require to Grantor up to provide for the time of such termination of this Agreementcare, or of such recovery of possession of the Grantee Space by Grantorpreservation, as the case may be, plus the expenses incurred or paid by Grantor in terminating this Agreement or of re-entering the Grantee Space and securing possession thereof, including actual attorneys’ fees and costs of removal and storage of Grantee’s propertyprotection, and Grantee shall also pay maintenance of all Collateral so as to Grantor damages as provided in Section 2 below.
1.3 In enable the event of United States to achieve maximum recovery upon default by the re-entry into the Grantee Space by Grantor under the provisions of this Exhibit “D”, and if this Agreement shall not be terminated, Grantor may (but shall have absolutely no obligation to do so), not in Grantor’s own name, but as agent for Grantee, grant to a third party the right to use the whole or any part of the Grantee Space for any period equal to or greater or less than the remainder of the remaining original term of this Agreement, for any sum which Grantor may deem suitable, including colocation fees concessions, and for any use and purpose which Grantor may deem appropriate. Such reletting may include any improvements, personalty and trade fixtures remaining in the Grantee Space.
1.4 In the event of a breach or threatened breach Borrower on the part of Grantee with respect to any of the covenants, agreements, terms, provisions or conditions on the part of or on behalf of Grantee to be kept, observed or performed, Grantor shall also have the right to obtain injunctive reliefDOE Guaranteed Loan.
1.5 In the event of (i) the termination of this Agreement under the provisions of this Exhibit D or (ii) the re-entry of the Grantee Space by Grantor under the provisions of this Exhibit “D”, or (iii) the termination of this Agreement (or re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law by reason of default hereunder on the part of Grantee, Grantor shall be entitled to retain all monies, if any, paid by Grantee to Grantor, whether as advance colocation fees, security deposit or otherwise, but such monies shall be credited by Grantor against any Base Colocation Fees, Additional Colocation Fees or any other charge due from Grantee at the time of such termination or replacement of Grantee or, at Grantor’s option, against any damages payable by Grantee under Section 2 of this Exhibit “D” or pursuant to law.
1.6 The specified remedies to which Grantor may resort under this Agreement are cumulative and concurrent, and are not intended to be exclusive of each other or of any other remedies or means of redress to which Grantor may lawfully be entitled at any time, and Grantor may invoke any remedy allowed under this Agreement or at law or in equity as if specific remedies were not herein provided for, and the exercise by Grantor of any one or more of the remedies allowed under this Agreement or in law or in equity shall not preclude the simultaneous or later exercise by the Grantor of any or all other remedies allowed under this Agreement or in law or in equity.
Appears in 1 contract
Remedies for Events of Default. 1.1 This Agreement and the Term and rights hereby granted to Grantee are subject to the limitation that if and whenever any Event of Default shall occur, Grantor may at any time thereafter give to Grantee a notice of termination of this Agreement setting forth a termination date three (3) days from the date of the giving of such notice, and, upon the giving of such notice, this Agreement and the term and rights hereby granted (whether or not the Term of the Agreement shall theretofore have commenced) shall expire and terminate upon the expiration of said three (3) days with the same effect as if that day were the date hereinbefore set for the expiration of the Term of the Agreement, but Grantee shall remain liable for damages as provided in Section 2 below.
1.2 If an Event of Default occurs, Lessor shall have occurredthe following remedies:
(a) Lessor may terminate Lessee’s right to possession of the Leased Area by any lawful means, Grantor and/or Grantorin which case this Lease shall terminate, Lessee shall immediately surrender possession of the Leased Area to Lessor, and Lessor shall recover from Lessee all damages incurred by Lessor by reason of such Event of Default including, but not limited to: (i) the cost of recovering possession of the School; (ii) expenses relating to reletting, including repairs, renovation and alteration of the School; (iii) reasonable attorneys’ fees; (iv) any other amount necessary to compensate Lessor for all the detriment proximately caused by Lessee’s agents failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom. As used in subparagraph (v) of this Article 14.2(a), the “worth of time award” is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award, plus one percent (1%).
(b) Lessor, in its discretion, may continue to enforce all of Lessor’s rights and employeesremedies under this Lease, whether or not this Agreement including Lessor shall have been terminated pursuant to this Exhibit “D” maythe right, without notice to Grantee, immediately or at any time thereafter re-enter into or upon the Grantee Space or any part thereof, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwisebut shall not be obligated, to the extent legally permitted, without being liable to indictment, prosecution or damages thereforcure any Event of Default by Lessee, and may repossess the same, any sums expended by Lessor in order to cure an Event of Default shall be due and may remove any persons payable within ten (10) business days of written demand from Lessor. Upon an Event of Default or property therefrom, to the end that Grantor may have, hold and enjoy the Grantee Space again as and of its first estate and interest therein. The words “re-enter”, “re-entry” and “re-entered” as used in this Agreement are not restricted to their technical legal meanings. In the event threatened breach by Lessee of any termination of this Agreement under the terms and provisions of this Exhibit “D” Lease, Lessor shall have the right to injunctive relief as if no other remedies were provided for herein for such Event of Default or in breach.
(c) Suit or suits for the event that Grantor shall re-enter the Grantee Space under the provisions of this Exhibit “D” or in the event recovery of the termination amounts and damages set forth herein may be brought by Lessor, from time to time, at Lessor’s election; and nothing herein shall be deemed to require Lessor to await the date that this Lease or the Lease Term hereof would have expired had there been no such Event of this Agreement (or of re-entry and replacement of Grantee) Default by or under any summary dispossess or other proceeding or action or any provision of law, Grantee shall thereupon pay to Grantor the Base Colocation Fees, Additional Colocation Fees and any other charges payable hereunder by Grantee to Grantor up to the time of such termination of this AgreementLessee, or of no such recovery of possession of the Grantee Space by Grantortermination, as the case may be, plus the expenses incurred or paid by Grantor . Each right and remedy provided for in terminating this Agreement or of re-entering the Grantee Space and securing possession thereof, including actual attorneys’ fees and costs of removal and storage of Grantee’s property, and Grantee shall also pay to Grantor damages as provided in Section 2 below.
1.3 In the event of the re-entry into the Grantee Space by Grantor under the provisions of this Exhibit “D”, and if this Agreement shall not be terminated, Grantor may (but shall have absolutely no obligation to do so), not in Grantor’s own name, but as agent for Grantee, grant to a third party the right to use the whole or any part of the Grantee Space for any period equal to or greater or less than the remainder of the remaining original term of this Agreement, for any sum which Grantor may deem suitable, including colocation fees concessions, and for any use and purpose which Grantor may deem appropriate. Such reletting may include any improvements, personalty and trade fixtures remaining in the Grantee Space.
1.4 In the event of a breach or threatened breach on the part of Grantee with respect to any of the covenants, agreements, terms, provisions or conditions on the part of or on behalf of Grantee to be kept, observed or performed, Grantor shall also have the right to obtain injunctive relief.
1.5 In the event of (i) the termination of this Agreement under the provisions of this Exhibit D or (ii) the re-entry of the Grantee Space by Grantor under the provisions of this Exhibit “D”, or (iii) the termination of this Agreement (or re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law by reason of default hereunder on the part of Grantee, Grantor Lease shall be entitled to retain all monies, if any, paid by Grantee to Grantor, whether as advance colocation fees, security deposit or otherwise, but such monies cumulative and shall be credited by Grantor against any Base Colocation Fees, Additional Colocation Fees in addition to every other right or any other charge due from Grantee at the time of such termination remedy provided for in this Lease or replacement of Grantee or, at Grantor’s option, against any damages payable by Grantee under Section 2 of this Exhibit “D” now or pursuant to law.
1.6 The specified remedies to which Grantor may resort under this Agreement are cumulative and concurrent, and are not intended to be exclusive of each other or of any other remedies or means of redress to which Grantor may lawfully be entitled at any time, and Grantor may invoke any remedy allowed under this Agreement or hereafter existing at law or in equity as if or by statute or otherwise, including, but not limited to, suits for injunctive relief and specific remedies were not herein provided for, and performance. The exercise or beginning of the exercise by Grantor Lessor of any one or more of the rights or remedies allowed under provided for in this Agreement Lease or in now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by the Grantor Lessor of any or all other rights or remedies allowed under provided for in this Agreement Lease or in now or hereafter existing at law or in equityequity or by statute or otherwise.
Appears in 1 contract
Samples: Ground Lease
Remedies for Events of Default. 1.1 This Agreement Upon the occurrence of each and the Term and rights hereby granted to Grantee are subject to the limitation that if and whenever any every Event of Default shall occurDefault, Grantor may and at any time thereafter give to Grantee a notice during the continuance of termination such Event of this Agreement setting forth a termination date three (3) days from Default, the date following shall occur and HBO may take any or all of the giving following actions at the same or different times:
(a) interest on the Subordinated Loan shall accrue at the Post-Default Rate;
(b) subject to the pendency of such noticea Remedies Bar Period, andby notice in writing to DreamWorks Animation, upon HBO may declare the giving of such notice, this Agreement and the term and rights hereby granted (whether or not the Term entire principal amount of the Agreement Subordinated Loan, together with all accrued interest thereon, to be immediately due and payable, whereupon such amounts shall theretofore have commencedbe immediately due and payable without presentment, demand, protest or other formalities of any kind, all of which are hereby expressly waived by DreamWorks Animation; provided, however,
(1) shall expire and terminate upon in the expiration of said three (3) days with the same effect as if that day were the date hereinbefore set for the expiration case of the Term occurrence of the Agreement, but Grantee shall remain liable for damages as provided in Section 2 below.
1.2 If an Event of Default shall have occurredreferred to in clause (1) or (2) of SECTION 6.01(E), Grantor and/or Grantor’s agents and employees, whether notwithstanding any Remedies Bar Period or not this Agreement shall have been terminated pursuant to this Exhibit “D” may, without notice to Grantee, immediately or at any time thereafter re-enter into or upon the Grantee Space or any part thereof, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwise, to the extent legally permitted, without being liable to indictment, prosecution or damages therefor, and may repossess the same, and may remove any persons or property therefrom, to the end that Grantor may have, hold and enjoy the Grantee Space again as and of its first estate and interest therein. The words “re-enter”, “re-entry” and “re-entered” as used in this Agreement are not restricted to their technical legal meanings. In the event of any termination of this Agreement under the provisions of this Exhibit “D” Section 2 of the Subordinated Note, the principal amount then outstanding of, and the accrued interest on, the Subordinated Loan shall automatically become due and payable without presentment, demand, protest or other formalities of any kind, all of which are hereby expressly waived by DreamWorks Animation; and
(2) in the event that Grantor shall re-enter the Grantee Space under the provisions case of this Exhibit “D” an occurrence of an Event of Default other than an Event of Default referred to in clause (1) or in the event (2) of the termination of this Agreement (or of re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law, Grantee shall thereupon pay to Grantor the Base Colocation Fees, Additional Colocation Fees and any other charges payable hereunder by Grantee to Grantor up to the time of such termination of this Agreement, or of such recovery of possession of the Grantee Space by Grantor, as the case may be, plus the expenses incurred or paid by Grantor in terminating this Agreement or of re-entering the Grantee Space and securing possession thereof, including actual attorneys’ fees and costs of removal and storage of Grantee’s property, and Grantee shall also pay to Grantor damages as provided in Section 2 below.
1.3 In the event of the re-entry into the Grantee Space by Grantor under the provisions of this Exhibit “D”, and if this Agreement shall not be terminated, Grantor may (but shall have absolutely no obligation to do soSECTION 6.01(E), not in Grantor’s own name, but so long as agent for Grantee, grant to a third party the right to use the whole or any part of the Grantee Space for any period equal Senior Debt remains unpaid, HBO shall provide to or greater or less than the remainder Designated Senior Agent a copy of the remaining original term notice provided to DreamWorks in accordance with this SECTION 6.02(B) and shall not exercise its remedies under this SECTION 6.02(B) until 5 Business Days after such notice is delivered to the Designated Senior Agent.
(c) subject to the pendency of this Agreementa Remedies Bar Period, for any sum which Grantor HBO may deem suitable, including colocation fees concessions, exercise its rights and for any use and purpose which Grantor may deem appropriate. Such reletting may include any improvements, personalty and trade fixtures remaining remedies in the Grantee Space.
1.4 In Collateral and against DreamWorks Animation as provided under the event of a breach or threatened breach on the Animation Security Agreement; provided, however, so long as any part of Grantee with respect the Senior Debt remains unpaid, HBO shall not be entitled to exercise its rights and remedies provided in this SECTION 6.02(C) until the Scheduled Maturity Date (but without limiting any of the covenants, agreements, terms, provisions or conditions on the part of or on behalf of Grantee to be kept, observed or performed, Grantor shall also have the right to obtain injunctive relief.
1.5 In the event of (i) the termination of this Agreement under the provisions of this Exhibit D or (ii) the re-entry of the Grantee Space by Grantor under the provisions of this Exhibit “D”, or (iii) the termination of this Agreement (or re-entry HBO's other rights and replacement of Grantee) by remedies hereunder or under any summary dispossess or other proceeding or action or any provision Subordinated Loan Document). For the avoidance of law by reason of default hereunder on the part of Granteedoubt, Grantor subject to SECTION 6.02(C), HBO shall be entitled to retain exercise any and all monies, if any, paid by Grantee to Grantor, whether as advance colocation fees, security deposit or otherwise, but such monies shall be credited by Grantor of its rights and remedies against any Base Colocation Fees, Additional Colocation Fees or any other charge due from Grantee at DreamWorks upon the time of such termination or replacement of Grantee or, at Grantor’s option, against any damages payable by Grantee under Section 2 of this Exhibit “D” or pursuant to law.
1.6 The specified remedies to which Grantor may resort under this Agreement are cumulative and concurrent, and are not intended to be exclusive of each other or conclusion of any other remedies or means of redress to which Grantor may lawfully be entitled at any time, and Grantor may invoke any remedy allowed under this Agreement or at law or in equity as if specific remedies were not herein provided for, and the exercise by Grantor of any one or more of the remedies allowed under this Agreement or in law or in equity shall not preclude the simultaneous or later exercise by the Grantor of any or all other remedies allowed under this Agreement or in law or in equityRemedies Bar Period.
Appears in 1 contract
Samples: Subordinated Loan Agreement (DreamWorks Animation SKG, Inc.)
Remedies for Events of Default. 1.1 This Agreement and the Term and rights hereby granted to Grantee are subject to the limitation that if and whenever (a) If any Event of Default shall occurhave occurred and be continuing, Grantor may at then, and in any time thereafter give to Grantee a notice such event, (i) if such event is an Event of termination of this Agreement setting forth a termination date three Default specified in sections 6.1(e) or (3f) days above, the Outstanding Amount shall immediately accelerate and the Loan (with all Accrued Complete Interest thereon, together with Complete Interest thereon from the last Payment Date until the date of the giving of such notice, and, upon the giving of such notice, acceleration) and all other amounts owing under this Agreement and the term other Loan Documents shall immediately become due and rights hereby granted payable, and (whether or not ii) if such event is any other Event of Default, then the Term Lender may by notice of default to the Borrower, declare the Outstanding Amount (with all Accrued Complete Interest thereon, together with Complete Interest thereon from the last Payment Date until the date of acceleration) and all other amounts owing under this Agreement shall theretofore have commenced) shall expire and terminate upon the expiration of said three (3) days with other Loan Documents to be due and payable forthwith, whereupon the same effect shall immediately become due and payable. Except as if that day were the date hereinbefore set for the expiration expressly provided above in this Article 6, presentment, demand, protest and all other notices of the Term of the Agreement, but Grantee shall remain liable for damages as provided in Section 2 belowany kind are hereby expressly waived.
1.2 (b) If an Event of Default shall have occurredoccurred and be continuing, Grantor and/or Grantor’s agents the Lender may exercise all rights and employeesremedies which it has under the Loan Documents, whether at law, in equity or otherwise.
(c) In addition to and not this Agreement shall have been terminated pursuant to this Exhibit “D” mayby way of limitation of section 6.2(b), without notice to Grantee, immediately or at any time thereafter re-enter into or upon the Grantee Space or any part thereof, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwise, to the extent legally permitted, without being liable to indictment, prosecution or damages therefor, and may repossess the same, and may remove any persons or property therefrom, to the end that Grantor may have, hold and enjoy the Grantee Space again as and of its first estate and interest therein. The words “re-enter”, “re-entry” and “re-entered” as used in this Agreement are not restricted to their technical legal meanings. In the event of any termination of this Agreement under the provisions of this Exhibit “D” or in the event that Grantor shall re-enter the Grantee Space under the provisions of this Exhibit “D” or in the event of the termination of this Agreement (or of re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law, Grantee shall thereupon pay to Grantor the Base Colocation Fees, Additional Colocation Fees and any other charges payable hereunder by Grantee to Grantor up to the time of such termination of this Agreement, or of such recovery of possession of the Grantee Space by Grantor, as the case may be, plus the expenses incurred or paid by Grantor in terminating this Agreement or of re-entering the Grantee Space and securing possession thereof, including actual attorneys’ fees and costs of removal and storage of Grantee’s property, and Grantee shall also pay to Grantor damages as provided in Section 2 below.
1.3 In the event of the re-entry into the Grantee Space by Grantor under the provisions of this Exhibit “D”, and if this Agreement shall not be terminated, Grantor may (but shall have absolutely no obligation to do so), not in Grantor’s own name, but as agent for Grantee, grant to a third party the right to use the whole or any part of the Grantee Space for any period equal to or greater or less than the remainder of the remaining original term of this Agreement, for any sum which Grantor may deem suitable, including colocation fees concessions, and for any use and purpose which Grantor may deem appropriate. Such reletting may include any improvements, personalty and trade fixtures remaining in the Grantee Space.
1.4 In the event of a breach or threatened breach on the part of Grantee with respect to any of the covenants, agreements, terms, provisions or conditions on the part of or on behalf of Grantee to be kept, observed or performed, Grantor shall also have the right to obtain injunctive relief.
1.5 In the event of when (i) the termination an Event of this Agreement under the provisions of this Exhibit D or Default shall have occurred and is continuing and (ii) the re-entry Borrower has a currently exercisable option under the terms of the Grantee Space Dearborn Center LLC Agreement to purchase the membership interest in Dearborn Center owned by Grantor under Estein (the provisions "Estein Dearborn Interest"), the Borrower shall, upon receiving written notice from Lender to do so, exercise such option (the "Dearborn Purchase Option") in the manner required by the Dearborn Center LLC Agreement. If the Lender exercises the foregoing right to compel exercise of this Exhibit “D”the Dearborn Purchase Option, the Lender shall be obligated to advance the funds required for such exercise in a timely manner in accordance with the terms of the Dearborn Purchase Option. Forthwith following such exercise, the Borrower shall convey to the Lender, outright and not by way of a security interest, both the Estein Dearborn Interest and the Borrower’s membership interest in Dearborn Center. Further to the foregoing, the Borrower hereby grants to the Lender an irrevocable power of attorney, exercisable at any time when an Event of Default shall have occurred and be continuing, to execute for and on behalf and in the name of the Borrower any and all instruments necessary or appropriate to (iiii) exercise the Dearborn Purchase Option and (ii) convey to the Lender (A) the termination Estein Dearborn Interest and (B) the Borrower’s membership interest in Dearborn Center. Such powers, being coupled with an interest, shall not be revoked by the bankruptcy or insolvency of this Agreement the Borrower.
(or re-entry d) The Lender shall indemnify and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law by reason of default hereunder on hold harmless the part of Grantee, Grantor shall be entitled to retain all monies, if any, paid by Grantee to Grantor, whether as advance colocation fees, security deposit or otherwise, but such monies shall be credited by Grantor Borrower against any Base Colocation Feesand all losses, Additional Colocation Fees damages, claims, liabilities, judgements and expenses suffered or incurred by the Borrower arising out of the failure of the Lender to advance on a timely basis any other charge due from Grantee at funds required to be advanced by the time of such termination or replacement of Grantee or, at Grantor’s option, against any damages payable by Grantee under Section 2 of this Exhibit “D” or Lender pursuant to lawsection 6.2(c) hereof.
1.6 The specified remedies to which Grantor may resort under this Agreement are cumulative and concurrent, and are not intended to be exclusive of each other or of any other remedies or means of redress to which Grantor may lawfully be entitled at any time, and Grantor may invoke any remedy allowed under this Agreement or at law or in equity as if specific remedies were not herein provided for, and the exercise by Grantor of any one or more of the remedies allowed under this Agreement or in law or in equity shall not preclude the simultaneous or later exercise by the Grantor of any or all other remedies allowed under this Agreement or in law or in equity.
Appears in 1 contract
Remedies for Events of Default. 1.1 This Agreement and the Term and rights hereby granted to Grantee are subject to the limitation that if and whenever any Event of Default shall occur, Grantor may at any time thereafter give to Grantee a notice of termination of this Agreement setting forth a termination date three (3) days from the date of the giving of such notice, and, upon the giving of such notice, this Agreement and the term and rights hereby granted (whether or not the Term of the Agreement shall theretofore have commenced) shall expire and terminate upon the expiration of said three (3) days with the same effect as if that day were the date hereinbefore set for the expiration of the Term of the Agreement, but Grantee shall remain liable for damages as provided in Section 2 below.
1.2 If an Event of Default Default, as defined in the Indenture, occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Outstanding Notes may declare all the Notes to be immediately due and payable; provided, however, that so long as any Designated Senior Indebtedness is outstanding, no such acceleration shall have occurred, Grantor and/or Grantor’s agents be effective until the earlier to occur of (x) five Business Days following delivery of a written notice of such acceleration to the Issuer and employees, whether or not this Agreement shall have been terminated pursuant to this Exhibit “D” may, without notice to Grantee, immediately or at any time thereafter re-enter into or upon the Grantee Space or any part thereof, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwise, each Representative (to the extent legally permitted, without being liable to indictment, prosecution or damages therefor, and may repossess the same, and may remove any persons or property therefrom, designated as such in writing to the end that Grantor may have, hold Trustee prior to the occurrence of such Event of Default) of Designated Senior Indebtedness and enjoy (y) the Grantee Space again as and acceleration of its first estate and interest therein. The words “re-enter”, “re-entry” and “re-entered” as used in this Agreement are not restricted to their technical legal meaningsall such Designated Senior Indebtedness. In the event of any termination such acceleration declaration of this Agreement under the notes because an Event of Default described in clause (5) above has occurred and is continuing, the acceleration declaration shall be automatically annulled if the payment default or other default triggering such Event of Default pursuant to clause (5) above shall be remedied or cured by Holdings or a Restricted Subsidiary or waived by the holders of the relevant Indebtedness within 60 days after the acceleration declaration with respect thereto and if (a) the annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction and (b) all existing Events of Default, except nonpayment of principal, premium or interest on the Notes that became due solely because of the acceleration of the Notes, have been cured or waived. If a bankruptcy or insolvency default with respect to the Issuer or any of its Significant Subsidiaries occurs and is continuing, the Notes automatically become immediately due and payable. Subject to the provisions of this Exhibit “D” or in the event that Grantor shall re-enter Indenture relating to the Grantee Space under the provisions of this Exhibit “D” or in the event duties of the termination Trustee, in case an Event of this Agreement (or of re-entry Default occurs and replacement of Grantee) by or is continuing, the Trustee shall be under any summary dispossess or other proceeding or action or any provision of law, Grantee shall thereupon pay to Grantor the Base Colocation Fees, Additional Colocation Fees and any other charges payable hereunder by Grantee to Grantor up to the time of such termination of this Agreement, or of such recovery of possession of the Grantee Space by Grantor, as the case may be, plus the expenses incurred or paid by Grantor in terminating this Agreement or of re-entering the Grantee Space and securing possession thereof, including actual attorneys’ fees and costs of removal and storage of Grantee’s property, and Grantee shall also pay to Grantor damages as provided in Section 2 below.
1.3 In the event of the re-entry into the Grantee Space by Grantor under the provisions of this Exhibit “D”, and if this Agreement shall not be terminated, Grantor may (but shall have absolutely no obligation to do so)exercise any rights or powers under the Indenture at the request or direction of any of the Holders of the Notes unless such Holders have offered to the Trustee indemnity or security satisfactory to the Trustee against any loss, not liability or expense. Subject to certain restrictions, the Holders of a majority in Grantor’s own name, but as agent for Grantee, grant to a third party principal amount of the outstanding Notes are given the right to use direct the whole or time, method and place of conducting any part of the Grantee Space proceeding for any period equal remedy available to the Trustee or greater of exercising any trust or less than the remainder of the remaining original term of this Agreement, for any sum which Grantor may deem suitable, including colocation fees concessions, and for any use and purpose which Grantor may deem appropriate. Such reletting may include any improvements, personalty and trade fixtures remaining in the Grantee Space.
1.4 In the event of a breach or threatened breach power conferred on the part of Grantee Trustee. The Trustee, however, may refuse to follow any direction that conflicts with respect law or the Indenture or that the Trustee determines is unduly prejudicial to any of the covenants, agreements, terms, provisions or conditions on the part of or on behalf of Grantee to be kept, observed or performed, Grantor shall also have the right to obtain injunctive relief.
1.5 In the event of (i) the termination of this Agreement under the provisions of this Exhibit D or (ii) the re-entry of the Grantee Space by Grantor under the provisions of this Exhibit “D”, or (iii) the termination of this Agreement (or re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law by reason of default hereunder on the part of Grantee, Grantor shall be entitled to retain all monies, if any, paid by Grantee to Grantor, whether as advance colocation fees, security deposit or otherwise, but such monies shall be credited by Grantor against any Base Colocation Fees, Additional Colocation Fees or any other charge due from Grantee at the time of such termination or replacement of Grantee or, at Grantor’s option, against any damages payable by Grantee under Section 2 of this Exhibit “D” or pursuant to law.
1.6 The specified remedies to which Grantor may resort under this Agreement are cumulative and concurrent, and are not intended to be exclusive of each other or rights of any other remedies Holder of a Note or means of redress to which Grantor may lawfully be entitled at any time, and Grantor may invoke any remedy allowed under this Agreement or at law or that would involve the Trustee in equity as if specific remedies were not herein provided for, and the exercise by Grantor of any one or more of the remedies allowed under this Agreement or in law or in equity shall not preclude the simultaneous or later exercise by the Grantor of any or all other remedies allowed under this Agreement or in law or in equitypersonal liability.
Appears in 1 contract
Samples: Senior Subordinated Indenture (Infosat Communications LP)
Remedies for Events of Default. 1.1 This Agreement and the Term and rights hereby granted to Grantee are subject to the limitation that if and whenever any Event of Default shall occur, Grantor may at any time thereafter give to Grantee a notice of termination of this Agreement setting forth a termination date three (3a) days from the date of the giving of such notice, and, upon the giving of such notice, this Agreement and the term and rights hereby granted (whether or not the Term of the Agreement shall theretofore have commenced) shall expire and terminate upon the expiration of said three (3) days with the same effect as if that day were the date hereinbefore set for the expiration of the Term of the Agreement, but Grantee shall remain liable for damages as provided in Section 2 below.
1.2 If an Event of Default occurs, and is not cured or waived within the time permitted under Section 6.01 above, if applicable, the Non- Defaulting Party shall have occurred, Grantor and/or Grantor’s agents and employees, whether or not possess the right to terminate this Agreement shall have been terminated pursuant to this Exhibit “D” may, without upon written notice to Grantee, immediately (by facsimile or at any time thereafter re-enter into or upon the Grantee Space or any part thereof, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwise, other reasonable means) to the extent legally permittedDefaulting Party, without being liable such notice of termination to indictment, prosecution or damages therefor, and may repossess the same, and may remove any persons or property therefrom, to the end that Grantor may have, hold and enjoy the Grantee Space again as and of its first estate and interest thereinbe effective immediately upon receipt. The words payment associated with termination (“re-enterTermination Payment”) shall be the aggregate of the Market Value and Costs calculated in accordance with Section 6.03, “re-entry” and “re-entered” as used in this Agreement are not restricted but, subject to their technical legal meanings. In the event of any termination of this Agreement under the provisions of this Exhibit “D” or Section 6.02(b) and the last paragraph of Section 6.03 hereof, in no event to exceed the event that Grantor shall re-enter lesser of the Grantee Space under actual pecuniary loss suffered by the provisions of this Exhibit “D” or in the event Department as a result of the termination of this Agreement (or of re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law, Grantee shall thereupon pay to Grantor the Base Colocation Fees, Additional Colocation Fees and any other charges payable hereunder by Grantee to Grantor up to the time of such termination of this Agreement, or of such recovery of possession total amount of the Grantee Space by Grantor, as the case may be, plus the expenses incurred or paid by Grantor in terminating this Agreement or of re-entering the Grantee Space and securing possession thereofCredit Guarantee Fund, including actual attorneys’ fees and costs accrued interest, on the date of removal and storage of Grantee’s property, and Grantee shall also pay termination. Subject to Grantor damages as provided in Section 2 below.
1.3 In the event of the re-entry into the Grantee Space by Grantor under the provisions of this Exhibit “D”Section 6.02 (b) and the last paragraph of Section 6.03 hereof, the Termination Payment shall be the sole and if this Agreement shall not be terminatedexclusive remedy for the Non-Defaulting Party for a termination hereunder. Prior to receipt of such notice of termination by the Defaulting Party, Grantor the Non-Defaulting Party may (but shall have absolutely no obligation exercise any remedies available to do so)it at law or otherwise, not in Grantor’s own nameincluding, but as agent for Granteenot limited to, grant to a third party the right to use seek injunctive relief to prevent irreparable injury to the whole or Non-Defaulting Party.
(b) Upon termination, the Non-Defaulting Party may withhold any part of payments it owes to the Grantee Space Defaulting Party for any period equal obligations incurred prior to or greater or less than termination under this Agreement until the remainder of Defaulting Party pays the remaining original term of this Agreement, for any sum which Grantor may deem suitable, including colocation fees concessions, and for any use and purpose which Grantor may deem appropriate. Such reletting may include any improvements, personalty and trade fixtures remaining in Termination Payment to the Grantee SpaceNon-Defaulting Party.
1.4 In the event of a breach or threatened breach on the part of Grantee with respect to any of the covenants, agreements, terms, provisions or conditions on the part of or on behalf of Grantee to be kept, observed or performed, Grantor (c) The Seller shall also have the right to obtain injunctive reliefsell the Firm Energy generated by the Facility to any third-party upon commercially reasonable terms during any period when the Buyer is in default in its payment obligations under this Agreement for a period of fifteen (15) days or more after written notice of such default is given by the Seller to the Buyer, whether or not such default is due to an Uncontrollable Force.
1.5 In (d) Notwithstanding the event of (i) the foregoing, termination of this Agreement under shall be the provisions of this Exhibit D or (ii) the re-entry sole and exclusive remedy of the Grantee Space by Grantor Non-Defaulting Party for Events of Default under the provisions of this Exhibit “D”, or (iiiSections 6.01(e) the termination of this Agreement (or re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law by reason of default hereunder on the part of Grantee, Grantor shall be entitled to retain all monies, if any, paid by Grantee to Grantor, whether as advance colocation fees, security deposit or otherwise, but such monies shall be credited by Grantor against any Base Colocation Fees, Additional Colocation Fees or any other charge due from Grantee at the time of such termination or replacement of Grantee or, at Grantor’s option, against any damages payable by Grantee under Section 2 of this Exhibit “D” or pursuant to lawthrough 6.01(h).
1.6 The specified remedies to which Grantor may resort under this Agreement are cumulative and concurrent, and are not intended to be exclusive of each other or of any other remedies or means of redress to which Grantor may lawfully be entitled at any time, and Grantor may invoke any remedy allowed under this Agreement or at law or in equity as if specific remedies were not herein provided for, and the exercise by Grantor of any one or more of the remedies allowed under this Agreement or in law or in equity shall not preclude the simultaneous or later exercise by the Grantor of any or all other remedies allowed under this Agreement or in law or in equity.
Appears in 1 contract
Samples: Firm Energy Purchase Agreement
Remedies for Events of Default. 1.1 This Agreement and the Term and rights hereby granted to Grantee are subject to the limitation that if and whenever any Event of Default shall occur, Grantor may at any time thereafter give to Grantee a notice of termination of this Agreement setting forth a termination date three (3a) days from the date of the giving of such notice, and, upon the giving of such notice, this Agreement and the term and rights hereby granted (whether or not the Term of the Agreement shall theretofore have commenced) shall expire and terminate upon the expiration of said three (3) days with the same effect as if that day were the date hereinbefore set for the expiration of the Term of the Agreement, but Grantee shall remain liable for damages as provided in Section 2 below.
1.2 If an Event of Default shall have occurredoccurred and be continuing, Grantor and/or Grantor’s agents then, and employeesin any such event, whether (i) if such event is an Event of Default specified in Sections 7.1(e) or not (f) above, the Mezzanine Loan hereunder shall immediately accelerate and the Mezzanine Loan (with accrued interest thereon) and all other amounts owing under the Mezzanine Note and the other Mezzanine Obligations shall immediately become due and payable, and (ii) if such event is any other Event of Default, then Mezzanine Lender may by notice of default to the Borrower, declare the Mezzanine Loan hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the Mezzanine Note to be due and payable forthwith, whereupon the same shall have been terminated pursuant to this Exhibit “D” may, without notice to Grantee, immediately or at any time thereafter re-enter into or upon the Grantee Space or any part thereof, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwise, to the extent legally permitted, without being liable to indictment, prosecution or damages therefor, become due and may repossess the same, and may remove any persons or property therefrom, to the end that Grantor may have, hold and enjoy the Grantee Space again payable. Except as and of its first estate and interest therein. The words “re-enter”, “re-entry” and “re-entered” as used expressly provided above in this Agreement are not restricted to their technical legal meanings. In the event of any termination of this Agreement under the provisions of this Exhibit “D” Article 7 or elsewhere in the event that Grantor shall re-enter the Grantee Space under the provisions of this Exhibit “D” or in the event of the termination of this Agreement (or of re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law, Grantee shall thereupon pay to Grantor the Base Colocation Fees, Additional Colocation Fees and any other charges payable hereunder by Grantee to Grantor up to the time of such termination of this Agreement, presentment, demand, protest and all other notices of any kind are hereby expressly waived.
(b) In addition to any other remedies set forth in this Section 7.2, if an Event of Default shall have occurred and be continuing, the Mezzanine Loan shall bear interest at the Default Rate. The Mezzanine Loan shall continue to bear interest at the Default Rate until the earlier of: (i) the Mezzanine Loan is paid in full or (ii) such Event of such recovery of possession of Default is otherwise cured or waived in writing by the Grantee Space by GrantorMezzanine Lender. In addition, as the case may be, plus the expenses incurred or paid by Grantor in terminating this Agreement or of re-entering the Grantee Space and securing possession thereof, including actual attorneys’ fees and costs of removal and storage of Grantee’s property, and Grantee shall also pay to Grantor damages as provided in Section 2 below6.3, the Borrower shall not make any distributions to its members following the occurrence and during the continuance of an Event of Default.
1.3 In (c) If an Event of Default shall have occurred and be continuing, Mezzanine Lender may exercise all rights and remedies which it has under the event Mezzanine Loan Documents, at law, in equity or otherwise. Without limiting the foregoing, Mezzanine Lender may, subject to the terms of the re-entry into Pledge Agreement, foreclose on or otherwise enforce the Grantee Space by Grantor Borrower's obligations against the Collateral and may exercise all the rights and remedies of a secured party under the provisions of this Exhibit “D”Uniform Commercial Code, as adopted and if this Agreement shall not be terminated, Grantor may (but shall have absolutely no obligation to do so), not in Grantor’s own name, but as agent for Grantee, grant to a third party enacted by the right to use the whole State or any part of the Grantee Space for any period equal to or greater or less than the remainder of the remaining original term of this Agreement, for any sum which Grantor may deem suitable, including colocation fees concessions, and for any use and purpose which Grantor may deem appropriate. Such reletting may include any improvements, personalty and trade fixtures remaining in the Grantee Space.
1.4 In the event of a breach or threatened breach on the part of Grantee with respect to States where any of the covenants, agreements, terms, provisions or conditions on the part of or on behalf of Grantee to be kept, observed or performed, Grantor shall also have the right to obtain injunctive reliefCollateral is located.
1.5 In the event of (i) the termination of this Agreement under the provisions of this Exhibit D or (ii) the re-entry of the Grantee Space by Grantor under the provisions of this Exhibit “D”, or (iii) the termination of this Agreement (or re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law by reason of default hereunder on the part of Grantee, Grantor shall be entitled to retain all monies, if any, paid by Grantee to Grantor, whether as advance colocation fees, security deposit or otherwise, but such monies shall be credited by Grantor against any Base Colocation Fees, Additional Colocation Fees or any other charge due from Grantee at the time of such termination or replacement of Grantee or, at Grantor’s option, against any damages payable by Grantee under Section 2 of this Exhibit “D” or pursuant to law.
1.6 The specified remedies to which Grantor may resort under this Agreement are cumulative and concurrent, and are not intended to be exclusive of each other or of any other remedies or means of redress to which Grantor may lawfully be entitled at any time, and Grantor may invoke any remedy allowed under this Agreement or at law or in equity as if specific remedies were not herein provided for, and the exercise by Grantor of any one or more of the remedies allowed under this Agreement or in law or in equity shall not preclude the simultaneous or later exercise by the Grantor of any or all other remedies allowed under this Agreement or in law or in equity.
Appears in 1 contract
Remedies for Events of Default. 1.1 This Agreement and 35.1 Upon the Term and rights hereby granted to Grantee are subject to the limitation that if and whenever occurrence of any Event of Default shall occurhereunder, Grantor Landlord may, in addition to all other rights and remedies provided herein or at Law or in equity, exercise any or all of the following remedies:
(a) Landlord may at any time thereafter give to Grantee a written notice of termination of this Agreement upon Tenant setting forth a termination date three date, no fewer than five (35) business days from the date of the giving of such notice, and, upon terminating this Lease and/or Tenant's right to use and occupy the giving Demised Premises. Upon the expiration of such noticeperiod, this Agreement Lease and the term and rights hereby granted (whether hereof, or not the Term right of the Agreement shall theretofore have commenced) shall expire and terminate upon the expiration of said three (3) days with the same effect as if that day were the date hereinbefore set for the expiration of the Term of the Agreement, but Grantee shall remain liable for damages as provided in Section 2 below.
1.2 If an Event of Default shall have occurred, Grantor and/or Grantor’s agents and employees, whether or not this Agreement shall have been terminated pursuant to this Exhibit “D” may, without notice to Grantee, immediately or at any time thereafter re-enter into or upon the Grantee Space Tenant or any part thereof, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwise, Sublessee to use and occupy the extent legally permitted, without being liable to indictment, prosecution or damages therefor, and may repossess the same, and may remove any persons or property therefrom, to the end that Grantor may have, hold and enjoy the Grantee Space again as and of its first estate and interest therein. The words “re-enter”, “re-entry” and “re-entered” as used in this Agreement are not restricted to their technical legal meanings. In the event of any termination of this Agreement under the provisions of this Exhibit “D” or in the event that Grantor shall re-enter the Grantee Space under the provisions of this Exhibit “D” or in the event of the termination of this Agreement (or of re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law, Grantee shall thereupon pay to Grantor the Base Colocation Fees, Additional Colocation Fees and any other charges payable hereunder by Grantee to Grantor up to the time of such termination of this Agreement, or of such recovery of possession of the Grantee Space by GrantorDemised Premises, as the case may be, plus shall terminate and expire as fully and completely as if the day on which said notice of cancellation is to be effective were the Expiration Date, and Tenant shall then peaceably quit and surrender the Demised Premises to Landlord, but Tenant shall remain liable as herein provided. Landlord may also, without further notice, re-enter the Demised Premises and repossess same by summary proceedings or ejectment or otherwise and/or may dispossess the Tenant and remove the Tenant and all other persons and property from the Demised Premises and may have, hold, use and enjoy the Demised Premises and the right to receive all rental income therefrom.
(b) Landlord may (1) declare all Adjusted Minimum Rent and all other sums due and payable hereunder immediately due and payable; (2) re-let or sublet the Demised Premises or any part or parts thereof, in the name of Tenant, Landlord or otherwise, for a term or terms, which may at Landlord's option be less than, equal to, or exceed the period which would otherwise have constituted the balance of the term of this Lease, mid Landlord may grant concessions or free rent, change the Base Tax Year and/or the Base Operating Year or charge such higher or lower rental as may be reasonable under the circumstances; (3) recover from Tenant any commission paid by Landlord to Broker on account of this Lease for the current term; (4) collect rental payments directly from any Sublessee, upon written notice to such Sublessee directing it to make such payment strictly to Landlord; (5) cancel any option to renew, extend or cancel this Lease or expand or contract the Demised Premises which Tenant may have; and/or (6) cancel any right of first refusal or first offer held by Tenant; and/or (7) if such Event of Default occurs during the Initial Term, cancel any unused Rental Credit and recover any Construction Credit and/or any Rental Credit previously applied to rent payable hereunder.
(c) Landlord may require Tenant or the legal representative(s) of Tenant immediately to pay to Landlord a sum (the "ACCELERATED RENT") which, at the time of the Event of Default, equals the aggregate Adjusted Minimum Rent payable hereunder which would have become payable by Tenant hereunder through the day previously set as the Expiration Date (conclusively presuming that Adjusted Minimum Rent on account of increases in Taxes and Operating Costs subsequent to the Event of Default and through the Expiration Date shall increase at the average of -the rates of increase thereof previously experienced by Landlord since the Commencement Date). Such Accelerated Rent shall be held by Landlord and applied by Landlord on a monthly basis to any deficiency between the rent or any other monies hereby-reserved and/or covenanted to be paid by Tenant and the net amount (as determined below), if any, of the rents collected on account of any re-letting or subletting of the Demised Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease. The failure of Landlord to re-let or sublet the Demised Premises or any part or parts thereof shall not release or affect Tenant's obligations or liability hereunder. In. computing any such deficiencies, there shall be added thereto such expenses as Landlord may reasonably incur in connection with re-letting or subletting or attempting to relet or sublet the Demised Premises, including but not limited to, legal expenses, attorney's fees, brokerage fees, advertising expenses and expenses incurred in connection with the marketing, showing, fix-up, cleaning, repair or paid by Grantor maintenance of the Demised Premises including those for preparation of the Demised Premises for re-letting or subletting and the removal of Tenant's property, fixtures or other improvements therefrom In connection with Landlord's preparation of the Demised Premises for re-letting or subletting, Landlord may, at its option, make such alterations, repairs, replacements, and/or decorations in terminating this Agreement or the Demised Premises as Landlord, in Landlord's reasonable discretion, considers advisable and necessary for the purpose of re-entering letting or subletting the Grantee Space and securing possession thereof, including actual attorneys’ fees and costs of removal and storage of Grantee’s propertyDemised Premises, and Grantee the making of such alterations, repairs, replacements, and/or decorations shall also pay not operate or be construed to Grantor damages as provided release Tenant from liability hereunder. Landlord shall in Section 2 below.
1.3 In no event be liable in anyway whatsoever for failure to re-let or sublet the Demised Premises, or in the event of that the Demised Premises are re-entry into let or sublet, for failure to collect the Grantee Space by Grantor rent under the provisions of this Exhibit “D”such re-letting or subletting, and in no event shall Tenant be entitled to receive any excess, if this Agreement shall not be terminatedany, Grantor may (but shall have absolutely no obligation of such net rents collected over the sums payable by Tenant to do so), not in Grantor’s own name, but as agent for Grantee, grant to a third party Landlord hereunder. If the right to use the whole Demised Premises or any part thereof should be re-let or sublet in combination with the other space, then proper apportionment on a square-foot basis shall be made of the Grantee Space for any period equal to or greater or less than the remainder rent received from such re-letting and of the remaining original term expenses of re-letting.
35.2 As a material part of this AgreementLease, for Tenant hereby appoints Landlord as Tenant's attorney-in-fact, which appointment shall be a special appointment coupled with an interest and shall be irrevocable, so long as any sum which Grantor may deem suitableEvent of Default has occurred (a) to enter into Subleases with any entity whatsoever, including colocation fees concessionsLandlord itself, upon any terms and for conditions, including at whatever rent Landlord may determine in its sole discretion, but which rent shall be credited against amounts owed by Tenant to Landlord hereunder; or (b) to utilize or occupy the Demised Premises or permit others to do so with or without payment of rent, without the same constituting an eviction or partial eviction or affecting Tenant's obligation to pay the Minimum Rent, Adjusted Minimum Rent, additional rent or any use and purpose which Grantor may deem appropriate. Such reletting may include any improvements, personalty and trade fixtures remaining in the Grantee Spaceother sums payable by Tenant to Landlord hereunder.
1.4 35.3 In the event of a breach or threatened breach on the part by Tenant of Grantee with respect to any of the covenantscovenants or provisions hereof, agreements, terms, provisions or conditions on the part of or on behalf of Grantee to be kept, observed or performed, Grantor Landlord shall also have the right of injunction and the right to obtain injunctive relief.invoke any remedy allowed at Law or in equity as if re-entry, summary proceedings and other remedies were not provided for herein
1.5 In 35.4 Any suit or suits for the event recovery of (i) monies due Landlord hereunder 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 termination date when the term of this Agreement under Lease other-wise would have expired. Mention in this Lease of any particular remedy shall not preclude Landlord from any other remedy, at Law or in equity. Nothing herein contained shall be construed to limit or preclude recovery by Landlord against Tenant for any sums or damages to which, in addition to the provisions of this Exhibit D or (ii) the re-entry of the Grantee Space by Grantor under the provisions of this Exhibit “D”sums particularly provided above, or (iii) the termination of this Agreement (or re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law Landlord may lawfully be entitled by reason of default any Default hereunder on the part of GranteeTenant.
35.5 Tenant, Grantor shall be entitled for Tenant, and on behalf of any and all persons claiming through or under Tenant, including but not limited to retain all moniesSublessees, if anycreditors, paid by Grantee to Grantor, whether as advance colocation feestrustees, security deposit or otherwiseholders and representatives of all kinds, but such monies shall be credited by Grantor against any Base Colocation Fees, Additional Colocation Fees does hereby waive and surrender all right and privilege which they or any other charge due from Grantee at of them might have under or by reason of any present or future Law, to redeem the time of such termination Demised Premises or replacement of Grantee or, at Grantor’s option, against any damages payable by Grantee under Section 2 to have a continuance of this Exhibit “D” Lease for the term hereby demised after being dispossessed or pursuant to law.
1.6 The specified remedies to which Grantor may resort under this Agreement are cumulative and concurrent, and are not intended to be exclusive ejected therefrom by process of each other or of any other remedies or means of redress to which Grantor may lawfully be entitled at any time, and Grantor may invoke any remedy allowed under this Agreement or at law or in equity under the terms of this Lease or after the termination of this Lease as if specific remedies were not herein provided for, and the exercise by Grantor of any one or more of the remedies allowed under this Agreement or in law or in equity shall not preclude the simultaneous or later exercise by the Grantor of any or all other remedies allowed under this Agreement or in law or in equityprovided.
Appears in 1 contract
Samples: Sublease (Protarga Inc)
Remedies for Events of Default. 1.1 This Agreement Upon the occurrence of each and the Term and rights hereby granted to Grantee are subject to the limitation that if and whenever any every Event of Default shall occurDefault, Grantor may and at any time thereafter give to Grantee a notice during the continuance of termination such Event of this Agreement setting forth a termination date three (3) days from Default, the date following shall occur and HBO may take any or all of the giving following actions at the same or different times:
(a) interest on the Subordinated Loan shall accrue at the Post-Default Rate;
(b) subject to the pendency of such noticea Remedies Bar Period, andby notice in writing to DreamWorks Animation, upon HBO may declare the giving of such notice, this Agreement and the term and rights hereby granted (whether or not the Term entire principal amount of the Agreement Subordinated Loan, together with all accrued interest thereon, to be immediately due and payable, whereupon such amounts shall theretofore have commencedbe immediately due and payable without presentment, demand, protest or other formalities of any kind, all of which are hereby expressly waived by DreamWorks Animation; provided, however,
(1) shall expire and terminate upon in the expiration of said three (3) days with the same effect as if that day were the date hereinbefore set for the expiration case of the Term occurrence of the Agreement, but Grantee shall remain liable for damages as provided in Section 2 below.
1.2 If an Event of Default shall have occurredreferred to in clause (1) or (2) of Section 6.01(e), Grantor and/or Grantor’s agents and employees, whether notwithstanding any Remedies Bar Period or not this Agreement shall have been terminated pursuant to this Exhibit “D” may, without notice to Grantee, immediately or at any time thereafter re-enter into or upon the Grantee Space or any part thereof, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwise, to the extent legally permitted, without being liable to indictment, prosecution or damages therefor, and may repossess the same, and may remove any persons or property therefrom, to the end that Grantor may have, hold and enjoy the Grantee Space again as and of its first estate and interest therein. The words “re-enter”, “re-entry” and “re-entered” as used in this Agreement are not restricted to their technical legal meanings. In the event of any termination of this Agreement under the provisions of this Exhibit “D” Section 2 of the Subordinated Note, the principal amount then outstanding of, and the accrued interest on, the Subordinated Loan shall automatically become due and payable without presentment, demand, protest or other formalities of any kind, all of which are hereby expressly waived by DreamWorks Animation; and
(2) in the event that Grantor shall re-enter the Grantee Space under the provisions case of this Exhibit “D” an occurrence of an Event of Default other than an Event of Default referred to in clause (1) or in the event (2) of the termination of this Agreement (or of re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law, Grantee shall thereupon pay to Grantor the Base Colocation Fees, Additional Colocation Fees and any other charges payable hereunder by Grantee to Grantor up to the time of such termination of this Agreement, or of such recovery of possession of the Grantee Space by Grantor, as the case may be, plus the expenses incurred or paid by Grantor in terminating this Agreement or of re-entering the Grantee Space and securing possession thereof, including actual attorneys’ fees and costs of removal and storage of Grantee’s property, and Grantee shall also pay to Grantor damages as provided in Section 2 below.
1.3 In the event of the re-entry into the Grantee Space by Grantor under the provisions of this Exhibit “D”, and if this Agreement shall not be terminated, Grantor may (but shall have absolutely no obligation to do so6.01(e), not in Grantor’s own name, but so long as agent for Grantee, grant to a third party the right to use the whole or any part of the Grantee Space for any period equal Senior Debt remains unpaid, HBO shall provide to or greater or less than the remainder Designated Senior Agent a copy of the remaining original term notice provided to DreamWorks in accordance with this Section 6.02(b) and shall not exercise its remedies under this Section 6.02(b) until 5 Business Days after such notice is delivered to the Designated Senior Agent.
(c) subject to the pendency of this Agreementa Remedies Bar Period, for any sum which Grantor HBO may deem suitable, including colocation fees concessions, exercise its rights and for any use and purpose which Grantor may deem appropriate. Such reletting may include any improvements, personalty and trade fixtures remaining remedies in the Grantee Space.
1.4 In Collateral and against DreamWorks Animation as provided under the event of a breach or threatened breach on the Animation Security Agreement; provided, however, so long as any part of Grantee with respect the Senior Debt remains unpaid, HBO shall not be entitled to exercise its rights and remedies provided in this Section 6.02(c) until the Scheduled Maturity Date (but without limiting any of the covenants, agreements, terms, provisions or conditions on the part of or on behalf of Grantee to be kept, observed or performed, Grantor shall also have the right to obtain injunctive relief.
1.5 In the event of (i) the termination of this Agreement under the provisions of this Exhibit D or (ii) the re-entry of the Grantee Space by Grantor under the provisions of this Exhibit “D”, or (iii) the termination of this Agreement (or re-entry HBO’s other rights and replacement of Grantee) by remedies hereunder or under any summary dispossess or other proceeding or action or any provision Subordinated Loan Document). For the avoidance of law by reason of default hereunder on the part of Granteedoubt, Grantor subject to Section 6.02(c), HBO shall be entitled to retain exercise any and all monies, if any, paid by Grantee to Grantor, whether as advance colocation fees, security deposit or otherwise, but such monies shall be credited by Grantor of its rights and remedies against any Base Colocation Fees, Additional Colocation Fees or any other charge due from Grantee at DreamWorks upon the time of such termination or replacement of Grantee or, at Grantor’s option, against any damages payable by Grantee under Section 2 of this Exhibit “D” or pursuant to law.
1.6 The specified remedies to which Grantor may resort under this Agreement are cumulative and concurrent, and are not intended to be exclusive of each other or conclusion of any other remedies or means of redress to which Grantor may lawfully be entitled at any time, and Grantor may invoke any remedy allowed under this Agreement or at law or in equity as if specific remedies were not herein provided for, and the exercise by Grantor of any one or more of the remedies allowed under this Agreement or in law or in equity shall not preclude the simultaneous or later exercise by the Grantor of any or all other remedies allowed under this Agreement or in law or in equityRemedies Bar Period.
Appears in 1 contract
Samples: Subordinated Loan Agreement (DreamWorks Animation SKG, Inc.)
Remedies for Events of Default. 1.1 This Agreement and 35.1 Upon the Term and rights hereby granted to Grantee are subject to the limitation that if and whenever occurrence of any Event of Default shall occurhereunder, Grantor Landlord may, in addition to all other rights and remedies provided herein or at Law or in equity, exercise any or all of the following remedies:
(a) Landlord may at any time thereafter give to Grantee a written notice of termination of this Agreement upon Tenant setting forth a termination date three date, no fewer than five (35) business days from the date of the giving of such notice, and, upon terminating this Lease and/or Tenant’s right to use and occupy the giving Demised Premises. Upon the expiration of such noticeperiod, this Agreement Lease and the term and rights hereby granted (whether hereof, or not the Term right of the Agreement shall theretofore have commenced) shall expire and terminate upon the expiration of said three (3) days with the same effect as if that day were the date hereinbefore set for the expiration of the Term of the Agreement, but Grantee shall remain liable for damages as provided in Section 2 below.
1.2 If an Event of Default shall have occurred, Grantor and/or Grantor’s agents and employees, whether or not this Agreement shall have been terminated pursuant to this Exhibit “D” may, without notice to Grantee, immediately or at any time thereafter re-enter into or upon the Grantee Space Tenant or any part thereof, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwise, Sublessee to use and occupy the extent legally permitted, without being liable to indictment, prosecution or damages therefor, and may repossess the same, and may remove any persons or property therefrom, to the end that Grantor may have, hold and enjoy the Grantee Space again as and of its first estate and interest therein. The words “re-enter”, “re-entry” and “re-entered” as used in this Agreement are not restricted to their technical legal meanings. In the event of any termination of this Agreement under the provisions of this Exhibit “D” or in the event that Grantor shall re-enter the Grantee Space under the provisions of this Exhibit “D” or in the event of the termination of this Agreement (or of re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law, Grantee shall thereupon pay to Grantor the Base Colocation Fees, Additional Colocation Fees and any other charges payable hereunder by Grantee to Grantor up to the time of such termination of this Agreement, or of such recovery of possession of the Grantee Space by GrantorDemised Premises, as the case may be, plus shall terminate and expire as fully and completely as if the expenses incurred or paid by Grantor in terminating this Agreement or day on which said notice of cancellation is to be effective were the Expiration Date, and Tenant shall then peaceably quit and surrender the Demised Premises to Landlord, but Tenant shall remain liable as herein provided. Landlord may also, without further notice, re-entering enter the Grantee Space Demised Premises and securing possession thereofrepossess same by summary proceedings or ejectment or otherwise and/or may dispossess the Tenant and remove the Tenant and all other persons and property from the Demised Premises and may have, including actual attorneys’ fees hold, use and costs of removal enjoy the Demised Premises and storage of Grantee’s property, and Grantee shall also pay to Grantor damages as provided in Section 2 below.
1.3 In the event of the re-entry into the Grantee Space by Grantor under the provisions of this Exhibit “D”, and if this Agreement shall not be terminated, Grantor may (but shall have absolutely no obligation to do so), not in Grantor’s own name, but as agent for Grantee, grant to a third party the right to use receive all rental income therefrom.
(b) Landlord may (1) declare all Minimum Rent and all other sums due and payable hereunder immediately due and payable; (2) re-let or sublet the whole Demised Premises or any part or parts thereof, in the name of Tenant, Landlord or otherwise, for a term or terms, which may at Landlord’s option be less than, equal to, or exceed the period which would otherwise have constituted the balance of the Grantee Space for any period equal to or greater or less than the remainder of the remaining original term of this Agreement, for any sum which Grantor may deem suitable, including colocation fees concessionsLease, and Landlord may grant concessions or free rent or charge such higher or lower rental as may be reasonable under the circumstances; (3) recover from Tenant any commission paid by Landlord to Broker on account of this Lease for the current term; (4) collect rental payments directly from any use and purpose Sublessee, upon written notice to such Sublessee directing it to make such payment strictly to Landlord (5) cancel any option to renew, extend or cancel this Lease or expand or contract the Demised Premises which Grantor Tenant may deem appropriatehave; (6) cancel any right of first refusal or first offer held by Xxxxxx; and/or (7) if such Event of Default occurs during the Initial Term, recover any Construction Credit and/or any Rental Credit.
(c) Landlord may require Tenant or the legal representative(s) of Tenant immediately to pay to Landlord a sum (the “Accelerated Rent”) which, at the time of the Event of Default, equals the aggregate Minimum Rent payable hereunder which would have become payable by Tenant hereunder through the day previously set as the Expiration Date. Such reletting may include any improvements, personalty Accelerated Rent shall be held by Landlord and trade fixtures remaining in the Grantee Space.
1.4 In the event of applied by Landlord on a breach or threatened breach on the part of Grantee with respect monthly basis to any of deficiency between the covenants, agreements, terms, provisions Minimum Rent or conditions on the part of or on behalf of Grantee any other monies hereby reserved and/or covenanted to be kept, observed or performed, Grantor shall also have paid by Tenant and the right to obtain injunctive relief.
1.5 In the event of (i) the termination of this Agreement under the provisions of this Exhibit D or (ii) the re-entry of the Grantee Space by Grantor under the provisions of this Exhibit “D”, or (iii) the termination of this Agreement (or re-entry and replacement of Grantee) by or under any summary dispossess or other proceeding or action or any provision of law by reason of default hereunder on the part of Grantee, Grantor shall be entitled to retain all moniesnet amount, if any, paid by Grantee of the rents collected on account of any re-letting or sub- letting of the Demised Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease. The failure of Landlord to Grantorre-let or sublet the Demised Premises or any part or parts thereof shall not release or affect Tenant’s obligations or liability hereunder. In computing any such deficiencies, whether there shall be added thereto such expenses as advance colocation Landlord may reasonably incur in connection with re-letting or subletting or attempting to relet or sublet the Demised Premises, including but not limited to, legal expenses, attorney’s fees, security deposit brokerage fees, advertising expenses and expenses incurred in connection with the marketing, showing, fix-up, cleaning, repair or otherwisemaintenance of the Demised Premises including those for preparation of the Demised Premises for re-letting or subletting and the removal of Tenant’s property, but such monies shall be credited by Grantor against any Base Colocation Feesfixtures or other improvements therefrom. In connection with Landlord’s preparation of the Demised Premises for re-letting or subletting, Additional Colocation Fees or any other charge due from Grantee at the time of such termination or replacement of Grantee orLandlord may, at Grantor’s its option, against any damages payable by Grantee under Section 2 make such alterations, repairs, replacements, and/or decorations in the Demised Premises as Landlord, in Landlord’s reasonable discretion, considers advisable and necessary for the purpose of this Exhibit “D” re-letting or pursuant to law.
1.6 The specified remedies to which Grantor may resort under this Agreement are cumulative and concurrent, and are not intended to be exclusive of each other or of any other remedies or means of redress to which Grantor may lawfully be entitled at any time, and Grantor may invoke any remedy allowed under this Agreement or at law or in equity as if specific remedies were not herein provided forsubletting the Demised Premises, and the exercise making of such alterations, repairs, replacements, and/or decorations shall not operate or be construed to release Tenant from liability hereunder. Landlord shall in no event be liable in any way whatsoever for failure to re-let or sublet the Demised Premises, or in the event that the Demised Premises are re-let or sublet, for failure to collect the rent under such re-letting or subletting, and in no event shall Tenant be entitled to receive any excess, if any, of such net rents collected over the sums payable by Grantor of Tenant to Landlord hereunder. If the Demised Premises or any one part thereof should be re-let or more sublet in combination with the other space, then proper apportionment on a square-foot basis shall be made of the remedies allowed under this Agreement or in law or in equity shall not preclude rent received from such re-letting and of the simultaneous or later exercise by the Grantor expenses of any or all other remedies allowed under this Agreement or in law or in equityre-letting.
Appears in 1 contract
