Remedies in Event of Default. Upon the occurrence of an Event of Default, at the option of the Lessor, which may be exercised at any time after an Event of Default shall have occurred, the Lessor shall have all rights and remedies available to it, at law or in equity, including, without limitation, all of the rights and remedies under the Development Documents and the Lease Documents. Subject to the requirements of applicable law, all materials at that time on or near the Leased Property which are the property of the Developer and which are to be used in connection with the completion of the Project shall be subject to the Liens created by the Development Documents. In addition to, and without limitation of, the foregoing, the Lessor is authorized, at the Lessor's option, which may be exercised from time to time, (a) to offset all amounts expended hereunder by the Lessor to complete the construction of the Project and/or exercise any of its other remedies hereunder against any portion of the Development Fee due hereunder and (b) to charge all money expended for completion of the Project against sums hereunder which have not already been advanced (even if the aggregate amount of such sums expended and all amounts previously advanced hereunder exceed the amount of the Project Funds which the Lessor has agreed to advance hereunder); and the Lessee agrees to pay to the Lessor Rent under the Facility Lease, calculated, in part, thereunder based upon all sums advanced hereunder (including, without limitation, all sums expended in good faith by the Lessor in connection with the completion of the Project), and, in addition thereto, the Lessee agrees to pay to the Lessor (as Rent under the Facility Lease), for services in connection with said completion of the Project, such additional sums as shall compensate the Lessor for the time and effort the Lessor and its employees shall have expended in connection therewith. The Lessor is authorized, but not obligated in any event, to do all such things in connection with the construction of the Project as the Lessor, in its sole and absolute discretion, may deem advisable, including, without limitation, the right to make any payments with respect to any obligation of the Developer to the Lessor or to any other Person in connection with the completion of construction of the Project and to make additions and changes in the Project Plans to employ contractors, subcontractors and agents and to take any and all such action, either in the Lessor's own name or in the name of the Developer, and the Developer hereby grants the Lessor an irrevocable power of attorney to act in its name in connection with the foregoing. This power of attorney, being coupled with an interest, shall be irrevocable until all of the Development Obligations are fully paid and performed and shall not be affected by any disability or incapacity which the Developer may suffer and shall survive the same. The power of attorney conferred on the Lessor by the provisions of this Section 11 is provided solely to protect the interests of the Lessor and shall not impose any duty on the Lessor to exercise any such power and neither the Lessor nor such attorney-in-fact shall be liable for any act, omission, error in judgment or mistake of law, except as the same may result from its gross negligence or wilful misconduct. Notwithstanding the foregoing, the Lessee and the Developer acknowledge and agree that, in the event that the Lessor takes possession of the Leased Property and assumes control of the Project as aforesaid, the Lessor shall not be obligated to continue the construction of the Project for any period of time longer than the Lessor shall see fit (in its sole and absolute discretion), and the Lessor may thereafter, at any time, abandon its efforts and refuse to make further payments for the account of the Project, whether or not the Project has been completed. In addition, at the Lessor's option and without demand, notice or protest, the occurrence of any Event of Default shall also constitute a default under any one or more of the Related Party Agreements.
Appears in 2 contracts
Samples: Leasehold Improvement Agreement (Balanced Care Corp), Leasehold Improvement Agreement (Balanced Care Corp)
Remedies in Event of Default. Upon the occurrence of an Event of Default, at the option of the Lessor, which may be exercised at any time after an Event of Default shall have occurred, the Lessor shall have all rights and remedies available to it, at law or in equity, including, without limitation, all of the rights and remedies under the Development Documents Facility Lease and the other Lease Documents. Subject to the requirements of f applicable law, all materials at that time on or near the Leased Property which are the property of the Developer Lessee and which are to be used in connection with the completion of the Project shall be subject to the Liens created by the Development Lease Documents. In addition to, and without limitation of, the foregoing, the Lessor is authorized, at the Lessor's option, which may be exercised from time to time, (a) to offset all amounts expended hereunder by the Lessor to complete the construction of the Project and/or exercise any of its other remedies hereunder against any portion of the Development Fee due hereunder and (b) authorized to charge all money expended for completion of the Project against sums hereunder which have not already been advanced (even if the aggregate amount of such sums expended and all amounts previously advanced hereunder exceed the amount of the Project Funds which the Lessor has agreed to advance hereunder); and the Lessee agrees to pay to the Lessor Rent under the Facility Lease, Lease calculated, in part, thereunder based upon all sums advanced hereunder (hereunder, including, without limitation, all sums expended in good faith by the Lessor in connection with the completion of the Projectproject), and, in addition thereto, the Lessee agrees to pay to the Lessor (as Rent under the Facility Lease), for services in connection with said completion of the Project, such additional sums as shall compensate the Lessor for the time and effort the Lessor and its employees shall have expended in connection therewith. The Lessor is authorized, but not obligated in any event, to do all such things in connection with the construction of the Project as the Lessor, in its sole and absolute discretion, may deem advisable, including, without limitation, the right to make any payments with respect to any obligation of the Developer Lessee to the Lessor or to any other Person in connection with the completion of construction of the Project and to make additions and changes in the Project Plans Plans, to employ contractors, subcontractors and agents and to take any and all such action, either in the Lessor's own name or in the name of the DeveloperLessee, and the Developer Lessee hereby grants the Lessor an irrevocable power of attorney to act in its name in connection with the foregoing. This power of attorney, being coupled with an interest, shall be irrevocable until all of the Development Obligations are fully paid and performed and shall not be affected by any disability or incapacity which the Developer Lessee may suffer and shall survive the same. The power of attorney conferred on the Lessor by the provisions of this Section 11 is provided solely to protect the interests of the Lessor and shall not impose any duty on the Lessor to exercise any such power and neither the Lessor nor such attorney-in-fact shall be liable for any act, omission, error in judgment or mistake of law, except as the same may result from its gross negligence or wilful misconduct. Notwithstanding the foregoing, the Lessee and the Developer acknowledge and agree that, in In the event that the Lessor takes possession of the Leased Property and assumes control of the Project project as aforesaid, the Lessor it shall not be obligated to continue the construction of the Project and/or the operation of the Project for any period of time longer than the Lessor shall see fit (in its sole and absolute discretion), and the Lessor may thereafter, at any time, abandon its efforts and refuse to make further payments for the account of the ProjectLessee, whether or not the Project has been completed. In addition, at the Lessor's option and without demand, notice or protest, the occurrence of any Event of Default shall also constitute a default under any one or more of the Related Party Agreements.
Appears in 2 contracts
Samples: Leasehold Improvement Agreement (Emeritus Corp\wa\), Leasehold Improvement Agreement (Emeritus Corp\wa\)
Remedies in Event of Default. Upon a. In the occurrence event of an Event a default hereunder and such default shall continue after the giving of Defaultwritten notice thereof to Tenant, Landlord may at the option of the Lessor, which may be exercised at any time after an Event of Default shall have occurred, the Lessor shall have all rights and remedies available to it, at law or in equity, including, without limitation, all of the rights and remedies under the Development Documents and Landlord's option:
i. terminate the Lease Documents. Subject to the requirements of applicable law, all materials at that time on or near the Leased Property which are the property of the Developer and which are to be used in connection with the completion of the Project shall be subject to the Liens created by the Development Documents. In addition to, and without limitation of, the foregoing, the Lessor is authorized, at the Lessor's option, which may be exercised from time to time, (a) to offset all amounts expended hereunder by the Lessor to complete the construction of the Project and/or exercise any of its other remedies hereunder against any portion of the Development Fee due hereunder and (b) to charge all money expended for completion of the Project against sums hereunder which have not already been advanced (even if the aggregate amount of such sums expended and all amounts previously advanced hereunder exceed the amount of the Project Funds which the Lessor has agreed to advance hereunder); and the Lessee agrees to pay to the Lessor Rent under the Facility Lease, calculated, in part, thereunder based upon all sums advanced hereunder (including, without limitation, all sums expended in good faith by the Lessor in connection with the completion of the Project), and, in addition thereto, the Lessee agrees to pay to the Lessor (as Rent under the Facility Lease), for services in connection with said completion of the Project, such additional sums as shall compensate the Lessor for the time and effort the Lessor and its employees shall have expended in connection therewith. The Lessor is authorized, but not obligated in any event, to do all such things in connection with the construction of the Project as the Lessor, in its sole and absolute discretion, may deem advisable, including, without limitation, the right to make any payments with respect to any obligation of the Developer to the Lessor or to any other Person in connection with the completion of construction of the Project and to make additions and changes in the Project Plans to employ contractors, subcontractors and agents and to take any and all such action, either in the Lessor's own name or in the name of the Developer, and the Developer hereby grants the Lessor an irrevocable power of attorney to act in its name in connection with the foregoing. This power of attorney, being coupled with an interest, shall be irrevocable until all of the Development Obligations are fully paid and performed and shall not be affected by any disability or incapacity which the Developer may suffer and shall survive the same. The power of attorney conferred on the Lessor by the provisions of this Section 11 is provided solely to protect the interests of the Lessor and shall not impose any duty on the Lessor to exercise any such power and neither the Lessor nor such attorney-in-fact shall be liable for any act, omission, error in judgment or mistake of law, except as the same may result from its gross negligence or wilful misconduct. Notwithstanding the foregoing, the Lessee and the Developer acknowledge and agree that, in the event that the Lessor takes retake possession of the Leased Property Premises for its own account, ii. stand by and assumes control do nothing, holding the Tenant liable for the Rent due as it matures, including any accelerated Rent,
iii. retake possession of the Project as aforesaid, the Lessor shall not be obligated to continue the construction of the Project for any period of time longer than the Lessor shall see fit (in its sole and absolute discretion), and the Lessor may thereafter, at any time, abandon its efforts and refuse to make further payments Premises for the account of the ProjectTenant, whether or not holding the Project has been completed. In additionTenant liable for the difference between the Rent stipulated to be paid under the Lease and what, at the Lessor's option and without demand, notice or protestin good faith, the occurrence Landlord is able to recover from a reletting, or
iv. avail itself of any Event other option or remedy available under Florida law; and, in any event Tenant, shall give up the Premises to Landlord.
b. If the notice provided herein shall have been given and this Lease shall be terminated; or if the Premises become vacant or deserted; then, in addition to all other remedies of Default shall also constitute a default under any one Landlord, Landlord may without notice re-enter the Premises either by force or more otherwise and, by summary proceedings or otherwise, dispossess Tenant and/or the legal representative of Tenant or other occupant of the Related Party AgreementsPremises, and remove effects and repossess and enjoy the Premises, together with all alterations, additions and improvements, all without being liable to prosecution or damages therefor.
c. If Tenant defaults in the performance of any of the terms and conditions of this Lease and Landlord employs the services of an attorney to enforce performance of Tenant hereunder, Tenant shall pay a reasonable attorney's fee as well as all expenses and costs incurred by the Landlord pertaining thereto and in enforcement of any remedy available to the Landlord.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
Remedies in Event of Default. Upon the occurrence of an Event of Default, at the option of the Lessor, which may be exercised at any time after an Event of Default shall have occurred, the Lessor shall have all rights and remedies available to it, at law or in equity, including, without limitation, all of the rights and remedies under the Development Documents Facility Lease and the other Lease Documents. Subject to the requirements of applicable law, all materials at that time on or near the Leased Property which are the property of the Developer Lessee and which are to be used in connection with the completion of the Project shall be subject to the Liens created by the Development Lease Documents. In addition to, and without limitation of, the foregoing, the Lessor is authorized, at the Lessor's option, which may be exercised from time to time, (a) to offset all amounts expended hereunder by the Lessor to complete the construction of the Project and/or exercise any of its other remedies hereunder against any portion of the Development Fee due hereunder and (b) authorized to charge all money expended for completion of the Project against sums hereunder which have not already been advanced (even if the aggregate amount of such sums expended and all amounts previously advanced hereunder exceed the amount of the Project Funds which the Lessor has agreed to advance hereunder); and the Lessee agrees to pay to the Lessor Rent under the Facility Lease, Lease (calculated, in part, thereunder based upon all sums advanced hereunder (hereunder, including, without limitation, all sums expended in good faith by the Lessor in connection with the completion of the Project), and, in addition thereto, the Lessee agrees to pay to the Lessor (as Rent under the Facility Lease), for services in connection with said completion of the Project, such additional sums as shall compensate the Lessor for the time and effort the Lessor and its employees shall have expended in connection therewith. The Lessor is authorized, but not obligated in any event, to do all such things in connection with the construction of the Project as the Lessor, in its sole and absolute discretion, may deem advisable, including, without limitation, the right to make any payments with respect to any obligation of the Developer Lessee to the Lessor or to any other Person in connection with the completion of construction of the Project and to make additions and changes in the Project Plans Plans, to employ contractors, subcontractors and agents and to take any and all such action, either in the Lessor's own name or in the name of the DeveloperLessee, and the Developer Lessee hereby grants the Lessor an irrevocable power of attorney to act in its name in connection with the foregoing. This power of attorney, being coupled with an interest, shall be irrevocable until all of the Development Obligations are fully paid and performed and shall not be affected by any disability or incapacity which the Developer Lessee may suffer and shall survive the same. The power of attorney conferred on the Lessor by the provisions of this Section 11 is provided solely to protect the interests of the Lessor and shall not impose any duty on the Lessor to exercise any such power and neither the Lessor nor such attorney-in-fact shall be liable for any act, omission, error in judgment or mistake of law, except as the same may result from its gross negligence or wilful misconduct. Notwithstanding the foregoing, the Lessee and the Developer acknowledge and agree that, in In the event that the Lessor takes possession of the Leased Property and assumes control of the Project as aforesaid, the Lessor it shall not be obligated to continue the construction of the Project and/or the operation of the Project for any period of time longer than the Lessor shall see fit (in its sole and absolute discretion), and the Lessor may thereafter, at any time, abandon its efforts and refuse to make further payments for the account of the ProjectLessee, whether or not the Project has been completed. In addition, at the Lessor's option and without demand, notice or protest, the occurrence of any Event of Default shall also constitute a default under any one or more of the Related Party Agreements.
Appears in 2 contracts
Samples: Leasehold Improvement Agreement (Emeritus Corp\wa\), Leasehold Improvement Agreement (Emeritus Corp\wa\)
Remedies in Event of Default. Upon the occurrence and continuance of an Event of Default, Lessor may, without notice to Lessee (except where notice is expressly required by law), do any one or more of the following:
a. Perform, on behalf and at the option expense of Lessee, any obligation of Lessee under this Lease which Lessee has failed to perform, the cost of which performance by Lessor, together with interest thereon at the highest rate permitted by law from the date of such expenditure, shall be deemed additional rental hereunder and shall be payable by Lessee to Lessor upon demand;
b. Elect to terminate this Lease and the tenancy created hereby by giving notice of such election to Lessee, and may reenter the Leased Premises, without the necessity of legal proceedings, and may remove Lessee and all other persons (if Lessee is still in possession) and property from the Premises, and may store such property in a public warehouse or elsewhere at the cost of and in the account of Lessee without resort to legal process and without Lessor being deemed guilty of trespass or becoming liable for any loss or damage occasioned thereby;
x. Xxxxxx may declare immediately due and payable the balance of any rent, Operating Costs and other charges that may otherwise be due and payable over the remainder of the Lessor, which term;
d. Exercise any other legal or equitable right or remedy it may be exercised at any time after have; and,
x. Xxxxxx may report unpaid rents or unpaid damages to local credit agencies for recordation in Lessee’s credit record. Notwithstanding the provisions of clause (b) above and regardless of whether an Event of Default shall have occurred, Lessor may exercise the Lessor shall have all rights and remedies available to it, at law or remedy described in equity, including, without limitation, all of the rights and remedies under the Development Documents and the Lease Documents. Subject to the requirements of applicable law, all materials at that time on or near the Leased Property which are the property of the Developer and which are to be used in connection with the completion of the Project shall be subject to the Liens created by the Development Documents. In addition to, and without limitation of, the foregoing, the Lessor is authorized, at the Lessor's option, which may be exercised from time to time, (a) to offset all amounts expended hereunder by the Lessor to complete the construction of the Project and/or exercise any of its other remedies hereunder against any portion of the Development Fee due hereunder and clause (b) without notice to charge all money expended for completion of the Project against sums hereunder which have not already been advanced (even Lessee if Lessor, in its good faith judgment, believes it would be injured by failure to take rapid action or if the aggregate amount unperformed obligation of such sums expended Lessee constitutes an emergency. Any costs and all amounts previously advanced hereunder exceed the amount of the Project Funds which the expenses incurred by Lessor has agreed to advance hereunder); and the Lessee agrees to pay to the Lessor Rent under the Facility Lease, calculated, in part, thereunder based upon all sums advanced hereunder (including, without limitation, all sums expended limitation attorney’s fees) in good faith enforcing any of its rights or remedies under this Lease shall be deemed to be additional rental hereunder and shall be repaid to Lessor by the Lessor in connection Lessee upon demand. Any notice required herein will be deemed delivered if left with the completion of the Project), and, in addition thereto, the Lessee agrees to pay to the Lessor (as Rent under the Facility Lease), for services in connection with said completion of the Project, such additional sums as shall compensate the Lessor for the time and effort the Lessor and its employees shall have expended in connection therewith. The Lessor is authorized, but not obligated in any event, to do all such things in connection with the construction of the Project as the Lessor, in its sole and absolute discretion, may deem advisable, including, without limitation, the right to make any payments with respect to any obligation of the Developer to the Lessor or to any other Person in connection with the completion of construction of the Project and to make additions and changes in the Project Plans to employ contractors, subcontractors and agents and to take any and all such action, either in the Lessor's own name ’s guarantor or in the name of the Developer, and the Developer hereby grants the Lessor an irrevocable power of attorney to act in its name in connection with the foregoing. This power of attorney, being coupled with an interest, shall be irrevocable until all of the Development Obligations are fully paid and performed and shall not be affected by any disability if left or incapacity which the Developer may suffer and shall survive the same. The power of attorney conferred on the Lessor by the provisions of this Section 11 is provided solely to protect the interests of the Lessor and shall not impose any duty on the Lessor to exercise any such power and neither the Lessor nor such attorney-in-fact shall be liable for any act, omission, error in judgment or mistake of law, except as the same may result from its gross negligence or wilful misconduct. Notwithstanding the foregoing, the Lessee and the Developer acknowledge and agree that, in the event that the Lessor takes possession of posted at a conspicuous place at the Leased Property and assumes control of the Project as aforesaid, the Lessor shall not be obligated to continue the construction of the Project for any period of time longer than the Lessor shall see fit (in its sole and absolute discretion), and the Lessor may thereafter, at any time, abandon its efforts and refuse to make further payments for the account of the Project, whether or not the Project has been completed. In addition, at the Lessor's option and without demand, notice or protest, the occurrence of any Event of Default shall also constitute a default under any one or more of the Related Party AgreementsPremises.
Appears in 2 contracts
Samples: Commercial Lease Agreement, Commercial Lease Agreement
Remedies in Event of Default. Upon the occurrence of an Event of Default, at the option of the Lessor, which may be exercised at any time after an Event of Default shall have occurred, the Lessor shall have all rights and remedies available to it, at law or in equity, including, without limitation, all of the rights and remedies under the Development Documents Facility Lease and the other Lease Documents. Subject to the requirements of applicable law, all materials at that time on or near the Leased Property which are the property of the Developer Lessee and which are to be used in connection with the completion of the Project shall be subject to the Liens created by the Development Lease Documents. In addition to, and without limitation of, the foregoing, the Lessor is authorized, at the Lessor's option, which may be exercised from time to time, (a) to offset all amounts expended hereunder by the Lessor to complete the construction of the Project and/or exercise any of its other remedies hereunder against any portion of the Development Fee due hereunder and (b) authorized to charge all money expended for completion of the Project against sums hereunder which have not already been advanced (even if the aggregate amount of such sums expended and all amounts previously advanced hereunder exceed the amount of the Project Funds which the Lessor has agreed to advance hereunder); and the Lessee agrees to pay to the Lessor Rent under the Facility Lease, Lease (calculated, in part, thereunder based upon all sums advanced hereunder (hereunder, including, without limitation, all sums expended in good faith by the Lessor in connection with the completion of the Project), and, in addition thereto, the Lessee agrees to pay to the Lessor (as Rent under the Facility Lease), for services in connection with said completion of the Project, such additional sums as shall compensate the Lessor for the time and effort the Lessor and its employees shall have expended in connection therewith. The Lessor is authorized, but not obligated in any event, to do all such things in connection with the construction of the Project as the Lessor, in its sole and absolute discretion, may deem advisable, including, without limitation, the right to make any payments with respect to any obligation of the Developer Lessee to the Lessor or to any other Person in connection with the completion of construction of the Project and to make additions and changes in the Project Plans to employ contractors, subcontractors and agents and to take any and all such action, either in the Lessor's own name or in the name of the DeveloperLessee, and the Developer Lessee hereby grants the Lessor an irrevocable power of attorney to act in its name in connection with the foregoing. This power of attorney, being coupled with an interest, shall be irrevocable until all of the Development Obligations are fully paid and performed and shall not be affected by any disability or incapacity which the Developer Lessee may suffer and shall survive the same. The power of attorney conferred on the Lessor by the provisions of this Section 11 is provided solely to protect the interests of the Lessor and shall not impose any duty on the Lessor to exercise any such power and neither the Lessor nor such attorney-in-fact shall be liable for any act, omission, error in judgment or mistake of law, except as the same may result from its gross negligence or wilful misconduct. Notwithstanding the foregoing, the Lessee and the Developer acknowledge and agree that, in In the event that the Lessor takes possession of the Leased Property and assumes control of the Project as aforesaid, the Lessor it shall not be obligated to continue the construction of the Project for any period of time longer than the Lessor shall see fit (in its sole and absolute discretion), and the Lessor may thereafter, at any time, abandon its efforts and refuse to make further payments for the account of the ProjectLessee, whether or not the Project has been completed. In addition, at the Lessor's option and without demand, notice or protest, the occurrence of any Event of Default shall also constitute a default under any one or more of the Related Party Agreements.
Appears in 2 contracts
Samples: Leasehold Improvement Agreement (Balanced Care Corp), Leasehold Improvement Agreement (Balanced Care Corp)
Remedies in Event of Default. Upon the occurrence of an Event of Default, at the option of the Lessor, which may be exercised at any time after an Event of Default shall have occurred, the Lessor shall have all rights and remedies available to it, at law or in equity, including, without limitation, all of the rights and remedies under the Development Documents and the Lease Documents. Subject to the requirements of applicable law, all materials at that time on or near the Leased Property which are the property of the Developer and which are to be used in connection with the completion of the Project shall be subject to the Liens created by the Development Documents. In addition to, and without limitation of, the foregoing, the Lessor is authorized, at the Lessor's option, which may be exercised from time to time, (a) to offset all amounts expended hereunder by the Lessor to complete the construction of the Project and/or exercise any of its other remedies hereunder against any portion of the Development Fee due hereunder and (b) to charge all money expended for completion of the Project against sums hereunder which have not already been advanced (even if the aggregate amount of such sums expended and all amounts previously advanced hereunder exceed the amount of the Project Funds which the Lessor has agreed to advance hereunder); and the Lessee agrees to pay to the Lessor Rent under the Facility Lease, calculated, in part, thereunder based upon all sums advanced hereunder (including, without limitation, all sums expended in good faith by the Lessor in connection with the completion of the Project), and, in addition thereto, the Lessee agrees to pay to the Lessor (as Rent under the Facility Lease), for services in connection with said completion of the Project, such additional sums as shall compensate the Lessor for the time and effort the Lessor and its employees shall have expended in connection therewith. The Lessor is authorized, but not obligated in any event, to do all such things in connection with the construction of the Project as the Lessor, in its sole and absolute discretion, may deem advisable, including, without limitation, the right to make any payments with respect to any obligation of the Developer to the Lessor or to any other Person in connection with the completion of construction of the Project and to make additions and changes in the Project Plans to employ contractors, subcontractors and agents and to take any and all such action, either in the Lessor's own name or in the name of the Developer, and the Developer hereby grants the Lessor an irrevocable power of attorney to act in its name in connection with the foregoing. This power of attorney, being coupled with an interest, shall be irrevocable until all of the Development Obligations are fully paid and performed and shall not be affected by any disability or incapacity which the Developer may suffer and shall survive the same. The power of attorney conferred on the Lessor by the provisions of this Section 11 is provided solely to protect the interests of the Lessor and shall not impose any duty on the Lessor to exercise any such power and neither the Lessor nor such attorney-in-fact shall be liable for any act, omission, error in judgment or mistake of law, except as the same may result from its gross negligence or wilful misconduct. Notwithstanding the foregoing, the Lessee and the Developer acknowledge and agree that, in the event that the Lessor takes possession of the Leased Property and assumes control of the Project as aforesaid, the Lessor shall not be obligated to continue the construction of the Project for any period of time longer than the Lessor shall see fit (in its sole and absolute discretion), and the Lessor may thereafter, at any time, abandon its efforts and refuse to make further payments for the account of the Project, whether or not the Project has been completed. In addition, at the Lessor's option and without demand, notice or protest, Upon the occurrence of any Event of Default Default, the Department shall also constitute send a written notice of default under any one or more to the Borrower, setting forth with reasonable specificity the nature of the Related Party Agreementsdefault. If the Borrower fails to cure the default to the reasonable satisfaction of the Department within ten (10) calendar days, the Department may, without further written notice to the Borrower, declare the Borrower in default, terminate this Agreement effective immediately, and accelerate the principal balance, accrued interest, and other amounts owed by the Borrower hereunder.
b) Upon the termination of this Agreement:
(i) The Borrower shall be liable for the full unpaid principal balance together with interest at the annual rate of twelve (12) percent from the date of the Event of Default to the date the Borrower’s obligations hereunder are paid in full.
(ii) Subject to the rights of other creditors, the Department shall be entitled to exercise any and all remedies available to the Department under this Agreement, related loan documents, and applicable laws.
c) In addition to the rights and remedies available to the Department at law, in equity, or in bankruptcy, the Department shall be entitled to recover from the Borrower an amount equal to the sum of:
(i) The unpaid principal balance, accrued interest, and other amounts owed by the Borrower hereunder;
(ii) All court costs and reasonable attorney’s fees incurred by the Department in the enforcement of its rights and remedies under this Agreement, including all costs incurred in foreclosing upon, repossessing, storing, repairing, selling, leasing or otherwise disposing of the Collateral; and
(iii) Any other damages arising from the Borrower’s default.
d) The Department’s foreclosure upon, repossession of, and subsequent sale, lease, or disposition of the Collateral shall not affect the Department’s right to recover from the Borrower any and all damages caused by the Borrower’s breach of this Agreement. The Department’s rights and remedies hereunder shall be cumulative, not exclusive, and shall be in addition to all other rights and remedies available at law, in equity or in bankruptcy.
Appears in 1 contract
Samples: Loan Agreement (Exact Sciences Corp)
Remedies in Event of Default. Upon the occurrence of an Event of Default, at the option of the LessorLender, which may be exercised at any time after an Event of Default shall have occurred, the Lessor shall have entire outstanding principal balance of the Loan, together with all rights and remedies available to it, at law or in equity, interest (including, without limitation, Additional Interest), costs, charges and other amounts due under all of the rights Loan Documents, shall immediately become due and remedies under payable and upon such acceleration, all amounts due hereunder shall bear interest at the Development Documents and the Lease DocumentsAdvances Rate. Subject to the requirements of applicable law, all materials at that time on or near the Leased Mortgaged Property which are the property of the Developer and which are to be used in connection with the completion of the Project Borrower shall be subject to the Liens created by the Development Loan Documents. In addition to, and without limitation of, the foregoing, the Lessor is authorized, at the Lessor's option, which may be exercised from time to time, (a) to offset all amounts expended hereunder by the Lessor to complete the construction of the Project and/or exercise any of its other remedies hereunder against any portion of the Development Fee due hereunder and (b) to charge all money expended for completion of the Project against sums hereunder which have not already been advanced (even if the aggregate amount of such sums expended and all amounts previously advanced hereunder exceed the amount of the Project Funds which the Lessor has agreed to advance hereunder); and the Lessee agrees to pay to the Lessor Rent under the Facility Lease, calculated, in part, thereunder based upon all sums advanced hereunder (including, without limitation, all sums expended in good faith by the Lessor in connection with the completion of the Project), and, in addition thereto, the Lessee agrees to pay to the Lessor (as Rent under the Facility Lease), for services in connection with said completion of the Project, such additional sums as shall compensate the Lessor for the time and effort the Lessor and its employees shall have expended in connection therewith. The Lessor Lender is authorized, but not obligated in any event, to do all such things in connection with the construction operation of the Project as Facilities the LessorLender, in its sole and absolute discretion, may deem advisable, including, without limitation, the right to make any payments with respect to any obligation of the Developer Borrower to the Lessor Lender or to any other Person in connection with the completion of construction operation of the Project and to make additions and changes in the Project Plans to employ contractors, subcontractors and agents Facilities and to take any and all such action, either in the LessorLender's own name or in the name of the DeveloperBorrower, and the Developer Borrower hereby grants the Lessor Lender an irrevocable power of attorney to act in its name in connection with the foregoing. This power of attorney, being coupled with an interest, shall be irrevocable until all of the Development Obligations are fully paid and performed and shall not be affected by any disability or incapacity which the Developer Borrower may suffer and shall survive the same. The power of attorney conferred on the Lessor Lender by the provisions of this Section 11 is provided solely to protect the interests of the Lessor Lender and shall not impose any duty on the Lessor Lender to exercise any such power and neither the Lessor Lender nor such attorney-in-fact shall be liable for any act, omission, error in judgment or mistake of law, except as the same may result from its gross negligence or wilful misconduct. Notwithstanding the foregoing, the Lessee and the Developer acknowledge and agree that, in In the event that the Lessor Lender takes possession of the Leased Mortgaged Property and assumes control of the Project any Facility as aforesaid, the Lessor it shall not be obligated to continue the construction operation of the Project same for any period of time longer than the Lessor Lender shall see fit (in its sole and absolute discretion), and the Lessor Lender may thereafter, at any time, abandon its efforts and refuse to make further payments for the account of the Project, whether or not the Project has been completedBorrower. In addition, at the LessorLender's option and without demand, notice or protest, the occurrence of any such Event of Default shall also constitute a default under any one or more of the Related Party Agreements.
Appears in 1 contract
Samples: Loan Agreement (Balanced Care Corp)
Remedies in Event of Default. Upon the occurrence of an Event of Default, at the option of the Lessor, which may be exercised at any time after an Event of Default shall have occurred, the Lessor shall have all rights and remedies available to it, at law or in equity, including, without limitation, all of the rights and remedies under the Development Documents Facility Lease and the other Lease Documents. Subject to the requirements of applicable law, all materials at that time on or near the Leased Property which are the property of the Developer Lessee and which are to be used in connection with the completion of the Project shall be subject to the Liens created by the Development Lease Documents. In addition to, and without limitation of, the foregoing, the Lessor is authorized, at the Lessor's option, which may be exercised from time to time, (a) to offset all amounts expended hereunder by the Lessor to complete the construction of the Project and/or exercise any of its other remedies hereunder against any portion of the Development Fee due hereunder and (b) authorized to charge all money expended for completion of the Project against sums hereunder which have not already been advanced (even if the aggregate amount of such sums expended and all amounts previously advanced hereunder exceed the amount of the Project Funds which the Lessor has agreed to advance hereunder); and the Lessee agrees to pay to the Lessor Rent under the Facility Lease, Lease (calculated, in part, thereunder based upon all sums advanced hereunder (hereunder, including, without limitation, all sums expended in good faith by the Lessor in connection with the completion of the Project), and, in addition thereto, the Lessee agrees to pay to the Lessor (as Rent under the Facility Lease), for services in connection with said completion of the Project, such additional sums as shall compensate the Lessor for the time and effort the Lessor and its employees shall have expended in connection therewith. The Lessor is authorized, but not obligated in any event, to do all such things in connection with the construction of the Project as the Lessor, in its sole and absolute discretion, may deem advisable, including, without limitation, the right to make any payments with respect to any obligation of the Developer to the Lessor or to any other Person in connection with the completion of construction of the Project and to make additions and changes in the Project Plans to employ contractors, subcontractors and agents and to take any and all such action, either in the Lessor's own name or in the name of the Developer, and the Developer hereby grants the Lessor an irrevocable power of attorney to act in its name in connection with the foregoing. This power of attorney, being coupled with an interest, shall be irrevocable until all of the Development Obligations are fully paid and performed and shall not be affected by any disability or incapacity which the Developer may suffer and shall survive the same. The power of attorney conferred on the Lessor by the provisions of this Section 11 is provided solely to protect the interests of the Lessor and shall not impose any duty on the Lessor to exercise any such power and neither the Lessor nor such attorney-in-fact shall be liable for any act, omission, error in judgment or mistake of law, except as the same may result from its gross negligence or wilful misconduct. Notwithstanding the foregoing, the Lessee and the Developer acknowledge and agree that, in the event that the Lessor takes possession of the Leased Property and assumes control of the Project as aforesaid, the Lessor shall not be obligated to continue the construction of the Project for any period of time longer than the Lessor shall see fit (in its sole and absolute discretion), and the Lessor may thereafter, at any time, abandon its efforts and refuse to make further payments for the account of the Project, whether or not the Project has been completed. In addition, at the Lessor's option and without demand, notice or protest, the occurrence of any Event of Default shall also constitute a default under any one or more of the Related Party Agreements.25
Appears in 1 contract
Samples: Leasehold Improvement Agreement (Emeritus Corp\wa\)
Remedies in Event of Default. Upon the occurrence of an Event of Default, at the option of the Lessor, which may be exercised and at any time after an Event of Default shall have occurredthereafter:
(a) Agent, the Lessor shall have all rights and remedies available to it, at law or in equity, including, without limitation, all on behalf of the rights and remedies under the Development Documents and the Lease Documents. Subject to the requirements of applicable law, all materials at that time on or near the Leased Property which are the property of the Developer and which are to be used in connection with the completion of the Project shall be subject to the Liens created by the Development Documents. In addition to, and without limitation of, the foregoing, the Lessor Secured Parties is authorized, at the Lessor's option, which may be exercised from time to time, (a) to offset all amounts expended hereunder by the Lessor to complete the construction in any legal manner and without breach of the Project and/or exercise any of its other remedies hereunder against any portion peace, to take possession of the Development Fee due hereunder Collateral and (b) of all books, records and accounts relating thereto and to charge exercise without interference from Company any and all money expended for completion rights which Company has with respect to the management, possession, operation, protection or preservation of the Project against sums hereunder which have not already been advanced (even if the aggregate amount of such sums expended and all amounts previously advanced hereunder exceed the amount of the Project Funds which the Lessor has agreed to advance hereunder); and the Lessee agrees to pay to the Lessor Rent under the Facility LeaseCollateral, calculated, in part, thereunder based upon all sums advanced hereunder (including, without limitation, all sums expended in good faith by the Lessor in connection with the completion of the Project), and, in addition thereto, the Lessee agrees to pay to the Lessor (as Rent under the Facility Lease), for services in connection with said completion of the Project, such additional sums as shall compensate the Lessor for the time and effort the Lessor and its employees shall have expended in connection therewith. The Lessor is authorized, but not obligated in any event, to do all such things in connection with the construction of the Project as the Lessor, in its sole and absolute discretion, may deem advisable, including, without limitation, including the right to make any payments with respect sell the same for the account of Company and to any obligation deduct from such sale proceeds, all costs, expenses and liabilities of every character incurred by Agent in collecting such sale proceeds and in managing, operating, maintaining, protecting or preserving the Developer Collateral and to apply the remainder of such sales proceeds to the Lessor or obligations owed to any other Person the Secured Parties in connection with such manner as Agent may elect. If necessary to obtain the completion of construction of the Project and to make additions and changes in the Project Plans to employ contractorspossession provided for above, subcontractors and agents and to take Agent may invoke any and all such actionlegal remedies to dispossess Company, either in the Lessor's own name including specifically one or in the name of the Developer, more actions for forcible entry and the Developer hereby grants the Lessor an irrevocable power of attorney to act in its name in detainer. In connection with the foregoing. This power of attorneyany action taken by Agent pursuant to this Agreement, being coupled with an interest, shall be irrevocable until all of the Development Obligations are fully paid and performed and Agent shall not be affected by any disability or incapacity which the Developer may suffer and shall survive the same. The power of attorney conferred on the Lessor by the provisions of this Section 11 is provided solely to protect the interests of the Lessor and shall not impose any duty on the Lessor to exercise any such power and neither the Lessor nor such attorney-in-fact shall be liable for any actloss sustained by Company resulting from any failure to sell the Collateral, omissionor any part thereof, error in judgment or mistake from other act or omission of Agent with respect to the Collateral unless such loss is caused by the willful misconduct and bad faith of Agent, nor shall Agent be obligated to perform or discharge any obligation, duty, or liability under any sale or lease agreement covering the Collateral or any part thereof or under or by reason of this instrument or the exercise of rights or remedies hereunder.
(b) Agent, on behalf of the Secured Parties may, without notice except as hereinafter provided, sell the Collateral or any part thereof at public or private sale (with or without appraisal or having the Collateral at the place of sale) for cash, upon credit, or for future delivery, and at such price or prices as it may deem best, and any Agent may be the purchaser of any and all of the Collateral so sold and thereafter hold the same absolutely free from any right or claim of whatsoever kind. Upon any such sale Agent shall have the right to deliver, assign and transfer to the purchaser thereof the Collateral so sold. Each purchaser at any such sale shall hold the Collateral sold absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption, stay or appraisal which Company has or may take under any rule of law or statute now existing or hereafter adopted. To the extent notice is required by applicable law, except as Agent shall give Company and permitted lien holders written notice at the same may result from its gross negligence address set forth herein (which shall satisfy any requirement of notice or wilful misconductreasonable notice in any applicable statute) of the intention to make any such public or private sale. Notwithstanding Such notice (if any is required by applicable law) shall be personally delivered or mailed, postage prepaid, to Company and permitted lien holders at least ten (10) calendar days before the foregoingdate fixed for a public sale, or at least ten (10) calendar days before the date after which the private sale or other disposition is to be made, unless the Collateral is of a type customarily sold on a recognized market, is perishable or threatens to decline speedily in value. Such notice (if any is required by applicable law), in case of public sale, shall state the time and place fixed for such sale or, in case of private sale or other disposition other than a public sale, the Lessee time after which the private sale or other such disposition is to be made. Any public sale shall be held at such time or times, within the ordinary business hours and the Developer acknowledge and agree thatat such place or places, as Agent may fix in the event that notice of such sale. At any sale the Lessor takes possession of the Leased Property and assumes control of the Project Collateral may be sold in one lot as aforesaid, the Lessor an entirety or in separate parcels as Agent may determine. Agent shall not be obligated to continue make any sale pursuant to any such notice. Agent may, without notice or publication, adjourn any public or private sale or cause the construction same to be adjourned from time to time by announcement at any time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Project Collateral on credit or for future delivery, the Collateral so sold may be retained by Agent until the selling price is paid by the purchaser thereof, but Agent shall incur no liability in case of the failure of such purchaser to take up and pay for the collateral so sold, and in case of any such failure, such Collateral may again be sold upon like notice. Each and every method of disposition described in this Agreement shall constitute disposition in a commercially reasonable manner. The Company, to the extent applicable, shall remain liable for any period deficiency.
(c) Agent, on behalf of time longer than the Lessor Secured Parties, shall see fit have all the rights of a secured party after default under the Uniform Commercial Code, statutory and common law of the state where the Collateral is located.
(d) Agent, on behalf of the Secured Parties, may resort to any security given by this Agreement or to any other security now existing or hereafter given to secure the payment of the Notes, in whole or in part, and in such portions and in such order as may seem best to Agent in its sole and absolute uncontrolled discretion), and the Lessor may thereafter, at any time, abandon its efforts and refuse to make further payments for the account such action shall not in any way be considered as a waiver of any of the Projectrights, whether benefits or not the Project has been completed. In addition, at the Lessor's option and without demand, notice or protest, the occurrence of any Event of Default shall also constitute a default under any one or more of the Related Party Agreementssecurity interests evidenced by this Agreement.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Numbeer, Inc.)
Remedies in Event of Default. Upon the occurrence of an Event of Default, at the option of the Lessor, which may be exercised at any time after an Event of Default shall have occurred, the Lessor shall have all rights and remedies available to it, at law or in equity, including, without limitation, all of the rights and remedies under the Development Documents Facility Lease and the other Lease Documents. Subject to the requirements of applicable law, all materials at that time on or near the Leased Property which are the property of the Developer Lessee and which are to be used in connection with the completion of the Project shall be subject to the Liens created by the Development Lease Documents. In addition to, and without limitation of, the foregoing, the Lessor is authorized, at the Lessor's option, which may be exercised from time to time, (a) to offset all amounts expended hereunder by the Lessor to complete the construction of the Project and/or exercise any of its other remedies hereunder against any portion of the Development Fee due hereunder and (b) authorized to charge all money expended for completion of the Project against sums hereunder which have not already been advanced (even if the aggregate amount of such sums expended and all amounts previously advanced hereunder exceed the amount of the Project Funds which the Lessor has agreed to advance hereunder); and the Lessee agrees to pay to the Lessor Rent under the Facility Lease, Lease (calculated, in part, thereunder based upon all sums advanced hereunder (hereunder, including, without limitation, all sums expended in good faith by the Lessor in connection with the completion of the Project), and, in addition thereto, the Lessee agrees to pay to the Lessor (as Rent under the Facility Lease), for services in connection with said completion of the Project, such additional sums as shall compensate the Lessor for the time and effort the Lessor and its employees shall have expended in connection therewith. The Lessor is authorized, but not obligated in any event, to do all such things in connection with the construction of the Project as the Lessor, in its sole and absolute discretion, may deem advisable, including, without limitation, the right to make any payments with respect to any obligation of the Developer Lessee to the Lessor or to any other Person in connection with the completion of construction of the Project and to make additions and changes in the Project Plans Plans, to employ contractors, subcontractors and agents and to take any and all such action, either in the Lessor's own name or in the name of the DeveloperLessee, and the Developer Lessee hereby grants the Lessor an irrevocable power of attorney to act in its name in connection with the foregoing. This power of attorney, being coupled with an interest, shall be irrevocable until all of the Development Obligations are fully paid and performed and shall not be affected by any disability or incapacity which the Developer Lessee may suffer and shall survive the same. The power of attorney conferred on the Lessor by the provisions of this Section 11 is provided solely to protect the interests of the Lessor and shall not impose any duty on the Lessor to exercise any such power and neither the Lessor nor such attorney-in-fact shall be liable for any act, omission, error in judgment or mistake of law, except as the same may result from its gross negligence or wilful misconduct. Notwithstanding the foregoing, the Lessee and the Developer acknowledge and agree that, in In the event that the Lessor takes possession of the Leased Property and assumes control of the Project as aforesaid, the Lessor it shall not be obligated to continue the construction of the Project and/or the operation of the Project for any period of time longer than the Lessor shall see fit (in its sole and absolute discretion), and the Lessor may thereafter, at any time, abandon its efforts and refuse to make further payments for the account of the ProjectLessee, whether or not the Project has been completed. In addition, at the Lessor's option and without demand, notice or protest, the occurrence of any Event of Default shall also constitute a default under any one or more of the Related Party Agreements.. 22
Appears in 1 contract
Samples: Leasehold Improvement Agreement (Emeritus Corp\wa\)
Remedies in Event of Default. Upon the occurrence of an Event of Default, at the option of the Lessor, which may be exercised at any time after an Event of Default shall have occurred, the Lessor shall have all rights and remedies available to it, at law or in equity, including, without limitation, all of the rights and remedies under the Development Documents and the Lease Documents. Subject to the requirements of applicable law, all materials at that time on or near the Leased Property which are the property of the Developer and which are to be used in connection with the completion of the Project shall be subject to the Liens created by the Development Documents. In addition to, and without limitation of, the foregoing, the Lessor is authorized, at the Lessor's option, which may be exercised from time to time, (a) to offset all amounts expended hereunder by the Lessor to complete the construction of the Project and/or exercise any of its other remedies hereunder against any portion of the Development Fee due hereunder and (b) to charge all money expended for completion of the Project against sums hereunder which have not already been advanced (even if the aggregate amount of such sums expended and all amounts previously advanced hereunder exceed the amount of the Project Funds which the Lessor has agreed to advance hereunder); and the Lessee agrees to pay to the Lessor Rent under the Facility Lease, calculated, in part, thereunder based upon all sums advanced hereunder (including, without limitation, all sums expended in good faith by the Lessor in connection with the completion of the Project), and, in addition thereto, the Lessee agrees to pay to the Lessor (as Rent under the Facility Lease), for services in connection with said completion of the Project, such additional sums as shall compensate the Lessor for the time and effort the Lessor and its employees shall have expended in connection therewith. The Lessor is authorized, but not obligated in any event, to do all such things in connection with the construction of the Project as the Lessor, in its sole and absolute discretion, may deem advisable, including, without limitation, the right to make any payments with respect to any obligation of the Developer to the Lessor or to any other Person in connection with the completion of construction of the Project and to make additions and changes in the Project Plans to employ contractors, subcontractors and agents and to take any and all such action, either in the Lessor's own name or in the name of the Developer, and the Developer hereby grants the Lessor an irrevocable power of attorney to act in its name in connection with the foregoing. This power of attorney, being coupled with an interest, shall be irrevocable until all of the Development Obligations are fully paid and performed and shall not be affected by any disability or incapacity which the Developer may suffer and shall survive the same. The power of attorney conferred on the Lessor by the provisions of this Section 11 is provided solely to protect the interests of the Lessor and shall not impose any duty on the Lessor to exercise any such power and neither the Lessor nor such attorney-in-fact shall be liable for any act, omission, error in judgment or mistake of law, except as the same may result from its gross negligence or wilful misconduct. Notwithstanding the foregoing, the Lessee and the Developer acknowledge and agree that, in the event that the Lessor takes possession of the Leased Property and assumes control of the Project as aforesaid, the Lessor shall not be obligated to continue the construction of the Project for any period of time longer than the Lessor shall see fit (in its sole and absolute discretion), and the Lessor may thereafter, at any time, abandon its efforts and refuse to make further payments for the account of the Project, whether or not the Project has been completed. In addition, at the Lessor's option and without demand, notice or protest, Upon the occurrence of any Event of Default Default, the Department shall also constitute send a written notice of default under any one or more to the Borrower, setting forth with reasonable specificity the nature of the Related Party Agreementsdefault. If the Borrower fails to cure the default to the reasonable satisfaction of the Department within ten (10) calendar days, the Department may, without further written notice to the Borrower, declare the Borrower in default, terminate this Agreement effective immediately, and accelerate the principal balance, accrued interest, and other amounts owed by the Borrower hereunder.
b) Upon the termination of this Agreement:
(i) The Borrower shall be liable for the full unpaid principal balance together with interest at the annual rate of twelve (12) percent from the date of the Event of Default to the date the Borrower's obligations hereunder are paid in full.
(ii) Subject to the rights of other creditors, the Department shall be entitled to exercise any and all remedies available to the Department under this Agreement, related loan documents, and applicable laws.
c) In addition to the rights and remedies available to the Department at law, in equity, or in bankruptcy, the Department shall be entitled to recover from the Borrower an amount equal to the sum of:
(i) The unpaid principal balance, accrued interest, and other amounts owed by the Borrower hereunder;
(ii) All court costs and reasonable attorney’s fees incurred by the Department in the enforcement of its rights and remedies under this Agreement, including all costs incurred in foreclosing upon, repossessing, storing, repairing, selling, leasing or otherwise disposing of the Collateral; and
(iii) Any other damages arising from the Borrower's default.
d) The Department’s foreclosure upon, repossession of, and subsequent sale, lease, or disposition of the Collateral shall not affect the Department’s right to recover from the Borrower any and all damages caused by the Borrower's breach of this Agreement. The Department’s rights and remedies hereunder shall be cumulative, not exclusive, and shall be in addition to all other rights and remedies available at law, in equity or in bankruptcy.
Appears in 1 contract
Remedies in Event of Default. Upon the occurrence of an Event of Default, at the option of the Lessor, which may be exercised at any time after an Event of Default shall have occurred, the Lessor shall have all rights and remedies available to it, at law or in equity, including, without limitation, all of the rights and remedies under the Development Documents and the Lease Documents. Subject to the requirements of applicable law, all materials at that time on or near the Leased Property which are the property of the Developer and which are to be used in connection with the completion of the Project shall be subject to the Liens created by the Development Documents. In addition to, and without limitation of, the foregoing, the Lessor is authorized, at the Lessor's option, which may be exercised from time to time, (a) to offset all amounts expended hereunder by the Lessor to complete the construction of the Project and/or exercise any of its other remedies hereunder against any portion of the Development Fee due hereunder and (b) to charge all money expended for completion of the Project against sums hereunder which have not already been advanced (even if the aggregate amount of such sums expended and all amounts previously advanced hereunder exceed the amount of the Project Funds which the Lessor has agreed to advance hereunder); and the Lessee agrees to pay to the Lessor Rent under the Facility Lease, calculated, in part, thereunder based upon all sums advanced hereunder (including, without limitation, all sums expended in good faith by the Lessor in connection with the completion of the Project), and, in addition thereto, the Lessee agrees to pay to the Lessor (as Rent under the Facility Lease), for services in connection with said completion of the Project, such additional sums as shall compensate the Lessor for the time and effort the Lessor and its employees shall have expended in connection therewith. The Lessor is authorized, but not obligated in any event, to do all such things in connection with the construction of the Project as the Lessor, in its sole and absolute discretion, may deem advisable, including, without limitation, the right to make any payments with respect to any obligation of the Developer to the Lessor or to any other Person in connection with the completion of construction of the Project and to make additions and changes in the Project Plans to employ contractors, subcontractors and agents and to take any and all such action, either in the Lessor's own name or in the name of the Developer, and the Developer hereby grants the Lessor an irrevocable power of attorney to act in its name in connection with the foregoing. This power of attorney, being coupled with an interest, shall be irrevocable until all of the Development Obligations are fully paid and performed and shall not be affected by any disability or incapacity which the Developer may suffer and shall survive the same. The power of attorney conferred on the Lessor by the provisions of this Section 11 is provided solely to protect the interests of the Lessor and shall not impose any duty on the Lessor to exercise any such power and neither the Lessor nor such attorney-in-fact shall be liable for any act, omission, error in judgment or mistake of law, except as the same may result from its gross negligence or wilful misconduct. Notwithstanding the foregoing, the Lessee and the Developer acknowledge and agree that, in the event that the Lessor takes possession of the Leased Property and assumes control of the Project as aforesaid, the Lessor shall not be obligated to continue the construction of the Project for any period of time longer than the Lessor shall see fit (in its sole and absolute discretion), and the Lessor may thereafter, at any time, abandon its efforts and refuse to make further payments for the account of the Project, whether or not the Project has been completed. In addition, at the Lessor's option and without demand, notice or protest, the occurrence of any Event of Default shall also constitute a default under treat any one or more of the Related Party AgreementsEvents of Default (defined in Section 20.1 hereof) as a breach of this Lease and thereupon at its option by serving written notice by certified mail on Lessee and on Mortgagees at their last known addresses of which Lessor shall have received notice in writing. Such notice by Lessor shall not be effective unless served on both Lessee and Mortgagees. After such notice by Lessor is effective, Lessor shall have, subject to the provisions of Section 3.5 hereof, in addition to all other remedies provided by law, one or more of the following remedies:
(a) Lessor may terminate this Lease and the term created hereby, in which event Lessor may forthwith repossess the Leased Premises and all buildings and improvements thereon and be entitled to recover forthwith as damages a sum of money equal to the value of the rent and other sums provided to be paid by Lessee for the balance of the stated term of this Lease less the rental value of the Leased Premises and all buildings and improvements thereon received for said period in the event said land and improvements are re-rented, and any other sum of money and damages due or to become due to Lessor from Lessee.
(b) Lessor may terminate Lessee’s right of possession and may repossess the Leased Premises and all buildings and improvements thereon by forcible entry and detainer suit or otherwise, without demand or notice of any kind to Lessee (except as hereinabove expressly provided) and without terminating this Lease, in which event Lessor may, but shall be under no obligation so to do, relet all or any part of such property for such rent and upon such terms as shall be satisfactory to Lessor (including the right to relet the Leased Premises and all buildings and improvements thereon for a term greater or lesser than that remaining under the stated term of this Lease and the right to relet the Leased Premises and all buildings and improvements thereon as a part of a larger area and the right to change the character or use made of the Leased Premises). For the purpose of such reletting, Lessor may make any repairs, changes, alterations or additions in or to the Leased Premises and all buildings and improvements that may be necessary or convenient; and if Lessor shall fail or refuse to relet the Leased Premises, or if the Leased Premises and all buildings and improvements thereon are relet and a sufficient sum shall not be realized from such reletting, after paying all the costs and expenses of such repairs, changes, alterations and additions and the expense of such reletting and the collection of the rent accruing therefrom, to satisfy the rent above provided to be paid, then Lessee shall pay to Lessor as damages a sum equal to the amount of the rent reserved in this Lease for such period or periods, or, if the Leased Premises have been relet, Lessee shall satisfy and pay any such deficiency upon demand therefor from time to time; and Lessee agrees that Lessor may file suit to recover any sums falling due under the terms of this paragraph from time to time and that any suit or recovery of any portion due Lessor hereunder shall be no defense to any subsequent action brought for any amount not theretofore reduced to judgment in favor of Lessor.
(c) Lessor may take possession of the Leased Premises including all improvements and pay and fully discharge any mortgages or outstanding loans or obligations at which time Lessor would be the sole owner of the real property and all improvements thereon. Upon the termination of this Lease and the term created hereby, or upon the termination of Lessee’s right of possession, whether by lapse of time or at the option of Lessor, as aforesaid, Lessee will at once surrender possession of the land and Building to Lessor and remove all effects therefrom; and if such possession be not immediately surrendered, Lessor may forthwith re-enter the land and Building and repossess itself thereof as in its former estate and remove all persons and their effects, using such force as may be necessary without being deemed guilty of any manner of trespass or forcible entry or detainer.
Appears in 1 contract
Remedies in Event of Default. Upon the occurrence of an Event of Default, at the option of the LessorLender, which may be exercised at any time after an Event of Default shall have occurred, the Lessor shall have entire outstanding principal balance of the Loan, together with all rights and remedies available to it, at law or in equity, interest (including, without limitation, Additional Interest), costs, charges and other amounts due under all of the rights Loan Documents, shall immediately become due and remedies under payable and upon such acceleration, all amounts due hereunder shall bear interest at the Development Documents and the Lease DocumentsAdvances Rate. Subject to the requirements of applicable law, all materials at that time on or near the Leased Mortgaged Property which are the property of the Developer and which are to be used in connection with the completion of the Project Borrower shall be subject to the Liens created by the Development Loan Documents. In addition to, and without limitation of, the foregoing, the Lessor is authorized, at the Lessor's option, which may be exercised from time to time, (a) to offset all amounts expended hereunder by the Lessor to complete the construction of the Project and/or exercise any of its other remedies hereunder against any portion of the Development Fee due hereunder and (b) to charge all money expended for completion of the Project against sums hereunder which have not already been advanced (even if the aggregate amount of such sums expended and all amounts previously advanced hereunder exceed the amount of the Project Funds which the Lessor has agreed to advance hereunder); and the Lessee agrees to pay to the Lessor Rent under the Facility Lease, calculated, in part, thereunder based upon all sums advanced hereunder (including, without limitation, all sums expended in good faith by the Lessor in connection with the completion of the Project), and, in addition thereto, the Lessee agrees to pay to the Lessor (as Rent under the Facility Lease), for services in connection with said completion of the Project, such additional sums as shall compensate the Lessor for the time and effort the Lessor and its employees shall have expended in connection therewith. The Lessor Lender is authorized, but not obligated in any event, to do all such things in connection with the construction operation of the Project Facility as the LessorLender, in its sole and absolute discretion, may deem advisable, including, without limitation, the right to make any payments with respect to any obligation of the Developer Borrower to the Lessor Lender or to any other Person in connection with the completion of construction operation of the Project and to make additions and changes in the Project Plans to employ contractors, subcontractors and agents Facility and to take any and all such action, either in the LessorLender's own name or in the name of the DeveloperBorrower, and the Developer Borrower hereby grants the Lessor Lender an irrevocable power of attorney to act in its name in connection with the foregoing. This power of attorney, being coupled with an interest, shall be irrevocable until all of the Development Obligations are fully paid and performed and shall not be affected by any disability or incapacity which the Developer Borrower may suffer and shall survive the same. The power of attorney conferred on the Lessor Lender by the provisions of this Section 11 is provided solely to protect the interests of the Lessor Lender and shall not impose any duty on the Lessor Lender to exercise any such power and neither the Lessor Lender nor such attorney-in-fact shall be liable for any act, omission, error in judgment or mistake of law, except as the same may result from its gross negligence or wilful misconduct. Notwithstanding the foregoing, the Lessee and the Developer acknowledge and agree that, in In the event that the Lessor Lender takes possession of the Leased Mortgaged Property and assumes control of the Project Facility as aforesaid, the Lessor it shall not be obligated to continue the construction operation of the Project Facility for any period of time longer than the Lessor Lender shall see fit (in its sole and and. absolute discretion), and the Lessor Lender may thereafter, at any time, abandon its efforts and refuse to make further payments for the account of the ProjectBorrower. For the purposes of determining Additional Interest upon the occurrence of an Event of Default for a Failure to Operate, whether it shall be deemed that the Additional Interest for such period where operations of the Facility had ceased would be equal to the highest annualized rate that Additional Interest accrued during the five (5) preceding calendar years or not the Project has been completedsuch shorter period of time as this Agreement is in force and effect. 64 In addition, at the LessorLender's option and without demand, notice or protest, the occurrence of any such Event of Default shall also constitute a default under any one or more of the Related Party Agreements.
Appears in 1 contract
Samples: Loan Agreement (Emeritus Corp\wa\)
Remedies in Event of Default. 13.1 Upon the occurrence of an any Event of Default, at subject only to any notice requirement and grace period expressly provided in the option of the Lessor, which may be exercised at any time after an Event of Default shall have occurredNotes, the Lessor Mortgage Documents, the Collateral Assignments or the Security Agreements, if any, the Agent and the Lenders shall have be entitled to all of their rights and or remedies available to ithereunder, at law or in equity, including, without limitation, all of the rights equity and remedies under the Development Documents and the Lease Documents. Subject to the requirements of applicable law, all materials at that time on or near the Leased Property which are the property of the Developer and which are to be used in connection with the completion of the Project shall be subject to the Liens created by the Development Documents. In addition to, and without limitation ofNotes, the foregoingMortgage Documents, the Lessor is authorized, at the Lessor's option, which may be exercised from time to time, (a) to offset all amounts expended hereunder by the Lessor to complete the construction of the Project and/or exercise any of its other remedies hereunder against any portion of the Development Fee due hereunder and (b) to charge all money expended for completion of the Project against sums hereunder which have not already been advanced (even if the aggregate amount of such sums expended and all amounts previously advanced hereunder exceed the amount of the Project Funds which the Lessor has agreed to advance hereunder); and the Lessee agrees to pay to the Lessor Rent under the Facility Lease, calculated, in part, thereunder based upon all sums advanced hereunder (including, without limitation, all sums expended in good faith by the Lessor in connection with the completion of the Project), and, in addition theretoCollateral Assignments, the Lessee agrees to pay to the Lessor (as Rent under the Facility Lease), for services in connection with said completion of the Project, such additional sums as shall compensate the Lessor for the time Security Agreements and effort the Lessor and its employees shall have expended in connection therewith. The Lessor is authorized, but not obligated in any event, to do all such things in connection with the construction of the Project as the Lessor, in its sole and absolute discretion, may deem advisableother Loan Document, including, without limitation, the right to declare the outstanding principal balance of the Notes, the accrued interest thereon, and all other obligations of the Borrowers to the Agent and the Lenders under this Agreement and the other Loan Documents to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything in this Agreement or in the Notes and the other Loan Documents to the contrary notwithstanding, and the Lenders' obligations to make any payments with respect to any obligation additional Advances hereunder shall be permanently terminated.
13.2 All of the Developer remedies herein given to the Lessor Agent and the Lenders or otherwise available to them shall be cumulative and may be exercised concurrently. Failure to exercise any of the remedies herein provided shall not constitute a waiver thereof by the Agent or the Lenders, nor shall use of any such remedies prevent the subsequent or concurrent resort to any other Person in connection with the completion of construction of the Project and to make additions and changes remedy or remedies which shall be vested in the Project Plans to employ contractors, subcontractors Agent and agents and to take any and all such action, either in the Lessor's own name Lenders by this Agreement or at law or in equity. To be effective, any waiver by the name of Agent or the Developer, Lenders must be in writing and the Developer hereby grants the Lessor an irrevocable power of attorney to act such waiver shall be limited in its name in connection with effect to the foregoing. This power of attorney, being coupled with an interest, condition or default specified therein; but no such waiver shall be irrevocable until all of the Development Obligations are fully paid and performed and shall not be affected by extend to any disability subsequent condition or incapacity which the Developer may suffer and shall survive the same. The power of attorney conferred on the Lessor by the provisions of this Section 11 is provided solely to protect the interests of the Lessor and shall not impose default or impair any duty on the Lessor to exercise any such power and neither the Lessor nor such attorney-in-fact shall be liable for any act, omission, error in judgment or mistake of law, except as the same may result from its gross negligence or wilful misconduct. Notwithstanding the foregoing, the Lessee and the Developer acknowledge and agree that, in the event that the Lessor takes possession of the Leased Property and assumes control of the Project as aforesaid, the Lessor shall not be obligated to continue the construction of the Project for any period of time longer than the Lessor shall see fit (in its sole and absolute discretion), and the Lessor may thereafter, at any time, abandon its efforts and refuse to make further payments for the account of the Project, whether or not the Project has been completed. In addition, at the Lessor's option and without demand, notice or protest, the occurrence of any Event of Default shall also constitute a default under any one or more of the Related Party Agreementsright consequent thereon.
Appears in 1 contract
Samples: Loan Agreement (Railamerica Inc /De)
