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 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 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 of an Event any event of Defaultdefault, at Landlord shall have 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 Agreementsfollowing without any notice or demand, in addition to and not in limitation of any other remedy by law or this Lease:
12.02-1 Terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant shall fail to do so, Landlord may without notice and prejudice to any other remedy available, enter and take possession, which may include changing the locks of the Premises, and remove Tenant or anyone occupying the Premises and its effects without being liable to prosecution or any claim for damages. Tenant agrees to indemnify Landlord for all loss and damage suffered by Landlord because of such termination whether through inability to relet the Premises or otherwise, including any loss of rent for the remainder of the term of this Lease.
12.02-2 Declare the entire amount of all rent which would have become due and payable immediately, in which event Tenant agrees to pay the same to Landlord immediately. Such payment shall constitute payment in advance of the rent stipulated for the remainder of the lease term. Acceptance by Landlord of the payment of such rent shall not constitute a waiver of any then existing default thereafter occurring.
12.02-3 Enter upon and take possession of the Premises as agent of Tenant without terminating this Lease and without being liable for any claim for damages. Landlord may relet all or any portion of the Premises as the agent of Tenant for such term and upon such terms as Landlord sees fit and receive the rent, in which event Tenant shall pay to Landlord on demand the cost of renovating, repairing and altering the Premises for a new tenant or tenants, plus all reasonable costs of reletting the Premises and any deficiency arising by reason of such reletting; provided however, that Landlord shall use reasonable diligence in its efforts to relet the Premises and Landlord’s failure to do so shall not release Tenant’s liability for rent or damages that could have been avoided if Landlord had done so. If Landlord elects to enter and relet the Premises the Landlord may at any time thereafter elect to terminate this Lease for Tenant’s default. If Landlord takes possession of the Premises, Landlord shall have the right to rent any other available space in the Building before reletting or attempting to relet the Premises.
12.02-4 Landlord may do whatever Tenant is obligated to do by the provisions of this Lease and may enter the Premises without being liable to prosecution or claim for damages in order to accomplish this purpose. Tenant agrees to reimburse Landlord immediately upon demand for any reasonable expenses which Landlord may incur in complying with the terms of this Lease on behalf of Tenant. Tenant agrees. that Landlord shall not be liable for any damages to Tenant from such action, whether caused by negligence of Landlord or otherwise.
12.02-5 All rights, options and remedies of Landlord contained in this Lease shall be construed and held to be cumulative, and no one of them shall be exclusive of the other, and Landlord shall have the right to pursue any one or all of such remedies or any other remedy or relief which may be provided by law, whether or not stated in this Lease. No waiver by Landlord of a breach of any of the terms, covenants or conditions of this Lease by Tenant shall be construed or held to be a waiver of any succeeding or preceding breach of the same or any other term, covenant or condition herein contained. No waiver of any default of Tenant hereunder shall be implied from any omission by Landlord to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect default other than as specified in said waiver. The consent or approval by Landlord to or of any act by Tenant requiring Landlord’s consent or approval shall not be deemed to waive or render unnecessary Landlord’s consent or approval to or of any subsequent similar acts of Tenant.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement (Extend Health Inc)
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 In the occurrence event of an Event a default under this Lease which is continuing and has not been cured in accordance with the prior paragraph of Defaultthis Section 17 Breach or Default by Lessee, and subject to the provisions of subsection C. Xxxxx Period for Unpermitted Assignment Pursuant to Section 29 below, Lessor shall have the option to declare all remaining monthly rental payments due hereunder for the balance of the then current Lease Term or Renewal Term to be immediately due and payable without further notice or demand, and the same shall thereafter bear interest at the option of maximum rate allowed by law until paid. In addition to the Lessorforegoing, which may be exercised at any time after an Event of Default shall have occurredbut again subject to subsection C. Xxxxx Period for Unpermitted Assignment Pursuant to Section 29, the Lessor shall have may pursue any and all rights and other remedies available to it, Lessor at law or in equity, including, including without limitation, either or both of the following actions:
(a) Lessor may terminate this Lease and the use of the Premises by Lessee, and Lessor shall have the right to enter upon and take possession of the Premises, with or without notice to Lessee, and to evict and expel Lessee and any or all of Lessee’s property, without legal process and without thereby being guilty of any manner of trespass either at law or in equity; and in such event, any or all property left in and about the rights Premises shall be considered abandoned and remedies Lessor may remove and dispose of any and all such property as Lessor sees fit without any recourse by Lessee, pursuant to the provisions of Arkansas law. Lessee shall be responsible for all costs of moving, storing and disposing of said property; or
(b) Lessor may enter said Premises as the agent of Lessee, without notice or legal process and without being liable for any manner of trespass, and relet the Premises, as the agent of Lessee, with or without Lessee’s property or fixtures that may be therein, at such price and upon such terms and for such duration of time as the Lessor may determine, and receive the rent therefor, applying the same to any costs or expenses incurred by Lessor as a result of Lessee’s default under the Development Documents Lease, including but not limited to leasing and brokerage fees, attorneys’ fees, and construction expenses relating to reletting the Lease DocumentsPremises. Subject If the full amount due hereunder shall not be realized by Lessor over and above the expenses to Lessor in such reletting, the requirements said Lessee shall pay any deficiency upon Lessor’s written demand, and in no event shall Lessee be entitled to any excess of applicable rent (or rent plus other sums) obtained by reletting over and above any and all amounts due hereunder from Lessee to Lessor. Lessee understands and consents that if a default under Section 17 Breach or Default has occurred, is continuing and/or has not been cured, that pursuant to Arkansas law, all materials at that time property placed on or near the Leased Property which are Premises by Lessee is hereby subjected to a lien in favor of Lessor for the property payment of the Developer and which are all sums agreed to be used in connection with the completion of the Project shall paid by Lessee under this Lease which lien, if any, will be subject to the Liens created prior liens, if any, on such property of Lessee by the Development Documentscreditors of Lessee. 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 any of the Project and/or exercise foregoing circumstances, including but not limited to Lessor’s remedy of acceleration of remaining monthly rental payments, Lessor shall have the duty to mitigate 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 damages in favor of Lessee. It is expressly agreed that in addition to the amount remedies specified herein in the event of the Project Funds which the Lessor has agreed to advance hereunder); a default, Lessee shall also be liable for and the Lessee agrees to shall pay to the Lessor Rent under the Facility Lease, calculatedLessor, in partaddition to any sum provided to be paid hereunder, thereunder based upon written demand, any and all other sums advanced hereunder (including, without limitation, all sums expended in good faith incurred by the Lessor in connection with such default or reletting the completion of the Project)Premises, and, in addition thereto, the Lessee agrees to pay to the including without limitation: reasonable attorney’s fees; broker’s fees incurred by Lessor (as Rent under the Facility Lease), for services in connection with said completion reletting the whole or any part of the ProjectPremises; the costs of removing and storing Lessee’s or other occupant’s property; the costs of repairing, such additional sums as shall compensate altering, remodeling or otherwise putting the Lessor for the time and effort the Lessor and its employees shall have expended in connection therewith. The Lessor is authorizedPremises into condition reasonably acceptable to a new tenant or tenants, 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 other reasonable out of pocket expenses incurred by Lessor in the enforcing 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’s remedies.
Appears in 1 contract
Samples: Commercial Lease Agreement (Edgewater Technology Inc/De/)
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 any event of Defaultdefault, at Landlord shall have 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 Agreementsfollowing without any notice or demand, in addition to and not in limitation of any other remedy by law or this Lease:
12.02-1 Terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant shall fail to do so, Landlord may without notice and prejudice to any other remedy available, enter and take possession of the Premises and remove Tenant or anyone occupying the Premises and its effects without being liable to prosecution or any claim for damages. Txxxxx agrees to indemnify Landlord for all loss and damage suffered by Landlord because of such termination whether through inability to relet the Premises or otherwise, including any loss of rent for the remainder of the term of this Lease. Landlord initial /CM/ Tenant initial /KM/
12.02-2 Declare the entire amount of all rent which would have become due and payable immediately, in which event Txxxxx agrees to pay the same to Landlord immediately. Such payment shall constitute payment in advance of the rent stipulated for the remainder of the lease term. Acceptance by Landlord of the payment of such rent shall not constitute a waiver of any then existing default thereafter occurring.
12.02-3 Enter upon and take possession of the Premises without terminating this Lease and without being liable for any claim for damages. Landlord may relet all or any portion of the Premises for such term and upon such terms as Landlord sees fit and receive the rent, in which event Tenant shall pay all reasonable costs of reletting the Premises and any deficiency arising by reason of such reletting; provided however, that Landlord shall use reasonable diligence in its efforts to relet the Premises and Landlord’s failure to do so shall not release Tenant’s liability for rent or damages that could have been avoided if Landlord had done so. If Landlord elects to enter and relet the Premises the Landlord may at any time thereafter elect to terminate this Lease for Tenant’s default. If Landlord takes possession of the Premises, Landlord shall have the right to rent any other available space in the Building before reletting or attempting to relet the Premises.
12.02-4 Landlord may do whatever Tenant is obligated to do by the provisions of this Lease and may enter the Premises without being liable to prosecution or claim for damages in order to accomplish this purpose. Txxxxx agrees to reimburse Landlord immediately upon demand for any reasonable expenses which Landlord may incur in complying with the terms of this Lease on behalf of Tenant Tenant agrees that Landlord shall not be liable for any damages to Tenant from such action, whether caused by the negligence of Landlord or otherwise.
12.02-5 All rights, options and remedies of Landlord contained in this Lease shall be construed and held to be cumulative, and no one of them shall be exclusive of the other, and Landlord shall have the right to pursue any one or all of such remedies or any other remedy or relief which may be provided by law, whether or not stated in this Lease. No waiver by Landlord of a breach of any of the terms, covenants or conditions of this Lease by Tenant shall be construed or held to be a waiver of any succeeding or preceding breach of the same or any other term, covenant or condition herein contained. No waiver of any default of Tenant hereunder shall be implied from any omission by Landlord to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect default other than as specified in said waiver. The consent or approval by Landlord to or of any act by Tenant requiring Lxxxxxxx’s consent or approval shall not be deemed to waive or render unnecessary Landlord’s consent or approval to or of any subsequent similar acts of Tenant
Appears in 1 contract
Remedies in Event of Default. Upon Immediately upon the occurrence of an Event of DefaultAgreement Default which remains uncured past any applicable cure period, at and notwithstanding anything to the option of the Lessorcontrary set forth herein, which may be exercised at any time after an Event of Default Lender shall have occurredthe rights and remedies set forth in the Loan Documents, and in any other document previously, now or hereafter executed and delivered to Lender by the Borrowers regarding the Loan, the Lessor shall have rights and remedies contained in this Agreement, and all rights and remedies available to it, at law or in equity, including, without limitation, all of the existing under applicable law. All rights and remedies under shall be cumulative and not exclusive, and Lender shall have the Development Documents right to exercise any and the Lease Documentsall other rights and remedies which may be available. Subject Any action by Lender against any property or party shall not serve to the requirements of applicable lawrelease or discharge any other security, all materials at that time on property or near the Leased Property which are the property of the Developer and which are to be used person in connection with the completion of the Project shall be subject to the Liens created by the Development Documentsthis transaction. In addition to, to any other rights and without limitation of, the foregoing, the Lessor is authorized, at the Lessor's option, remedies which may be exercised from time to timeavailable, (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 LessorLender may, in its sole and absolute discretion: (i) enter, may deem advisable, including, with or 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 process of law, except as any premises where the Collateral or the books and records of the Borrowers related thereto are or may be located, and without charge or liability to Lender therefore, seize and remove the Collateral and books and records in any way relating to the Collateral from such premises and/or remain upon the premises and use the same may result from its gross negligence (together with said books and records) for the purpose of collecting, preparing and/or disposing of the Collateral; (ii) sell or wilful misconduct. Notwithstanding otherwise dispose of the foregoing, the Lessee and the Developer acknowledge and agree that, Collateral at public or private sale for cash or credit; (iii) in the event that the Lessor takes possession Borrowers fail to perform, observe or discharge any of their respective obligations or liabilities under the Leased Property Loan Documents or this Agreement, obtain temporary and assumes control permanent injunctive relief without the necessity 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)proving irreparable injury, and without the Lessor may thereafternecessity of posting a bond or other security, it being expressly recognized and agreed that no remedy at any time, abandon its efforts and refuse law will provide adequate relief 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 Lender under any one or more of the Related Party Agreementssuch circumstances.
Appears in 1 contract
Remedies in Event of Default. Upon In the occurrence event of an Event of Defaultany such material default by Lessee, at the option of the Lessor, which Lessor may be exercised at any time after an Event thereafter, with or without notice and demand and without limiting Lessor in the exercise of Default shall have occurred, the Lessor shall have all rights and remedies available to it, any right or remedy at law or in equityequity which Lessor may have by reason of such default or breach:
(a) Maintain this Lease in full force and recover the rent and other monetary charges as they become due, includingwith the right to xxx monthly or periodically at its election, without limitationterminating the Lessee's right of possession, irrespective of whether Lessee shall have abandoned the leased premises. In the event Lessor elects not to terminate the Lease, Lessor shall have the right to attempt to relet the leased premises at such rent and upon such conditions and for such a term and to do all acts necessary to maintain or preserve the leased premises as Lessor deems reasonable and necessary without being deemed to have elected to terminate the Lease including removal of all persons and property from the leased premises; such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account off Lessee. In the event any such releting occurs, this Lease shall terminate automatically upon the new Lessee taking possession of the rights leased premises. Notwithstanding that Lessor, fails to elect to terminate the Lease initially, Lessor at any time during the term of this Lease may elect to terminate this Lease by virtue of such previous default of Lessee.
(b) Terminate Lessee's right to possession by any lawful means, in which case this Lease shall terminate and remedies Lessee shall immediately surrender possession of the leased premises to Lessor. In such event Lessor shall be entitled to recover from Lessee all damages incurred by Lessor by reason of Lessee's default including without limitation thereto, the following: (i) the worth at the time of award of any unpaid rent which had been earned at the time of such termination; plus, (ii) the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that is proved by Lessee could have been reasonably avoided; plus, (iii) the worth at the time of award of the amount, which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that is provided by Lessee could be reasonably avoided; plus (iv) any other amount necessary to compensate Lessor for all the detriment proximately caused by Lessee's failure to perform his obligation under the Development Documents and Lease or which in the Lease Documents. Subject ordinary course of things would be likely to the requirements of applicable lawresult therefrom; plus (v) at Lessor's electric, all materials at that time on such other amounts in addition to or near the Leased Property which are the property in lieu 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 foregoing is authorized, at the Lessor's option, which may be exercised permitted from time to timetime by applicable state law. Upon any such reentry, (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 reasonable repairs, alterations or modifications to any obligation the leased premises, which Lessor in its sole discretion deems reasonable and necessary. As used in the subparagraphs (i) and (ii) above, the "worth at the time of award" is computed by allowing interest at the rate of ten percent (10%) per annum from the date of default. As used in subparagraph (iii) above, the "worth at the time of award" is computed by discounting such amount at the discount rate of the Developer to Federal Reserve Bank of San Francisco at the Lessor or to any other Person time of award plus one percent (1%). The term "rent," as used 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 interestthis Section, shall be irrevocable until deemed to be and to mean the rent to be paid pursuant to Section 4 and all of other monetary sums required to be paid by Lessee pursuant to 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 terms 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 AgreementsLease.
Appears in 1 contract
Samples: Lease Agreement (Power Ten)
Remedies in Event of Default. Upon 7.1 In addition to the other rights and remedies provided for in the Credit Agreement, upon the occurrence and during the continuation of an Event of Default:
(a) Secured Party is authorized, in any legal manner and without breach of the peace, to take possession of the Collateral (DEBTOR HEREBY WAIVES ALL CLAIMS FOR DAMAGES ARISING FROM OR CONNECTED WITH ANY SUCH TAKING, EXCEPT AS MAY BE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SECURED PARTY) and of all books, records and accounts relating thereto and to exercise without interference from Debtor any and all rights which Debtor has with respect to the management, possession, operation, protection, preservation, distribution or resale of the Collateral, including the right to sell or rent the same for the account of Debtor and to deduct from such sale proceeds or such rents all costs, expenses and liabilities of every character incurred by Secured Party in collecting such sale proceeds or such rents, and in managing, operating, maintaining, protecting or preserving the Collateral and to apply the remainder of such sales proceeds or such rents on the Debt in such manner as Secured Party may elect. Before any sale, Secured Party may, at its option, complete the option processing of any of the LessorCollateral and/or repair or recondition the same to such extent as Secured Party may deem advisable and any reasonable sums expended therefor by Secured Party shall be reimbursed by Debtor. Secured Party may take possession of Debtor's premises to complete such processing, which may be exercised at repairing and/or reconditioning, using the facilities and other property of Debtor to do so, to store any time after an Event of Default shall have occurredCollateral and to conduct any sale as provided for herein, the Lessor shall have all rights without compensation to Debtor. All costs, expenses, and remedies available to itliabilities incurred by Secured Party in collecting such sales proceeds or such rents, at law or in equitymanaging, includingoperating, without limitationmaintaining, protecting or preserving such properties, or in processing, repairing and/or reconditioning the Collateral if not paid out of such sales proceeds or such rents as hereinabove provided, shall constitute a demand obligation owing by Debtor and shall bear interest from the date of expenditure until paid at the Past Due Rate, 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 constitute a portion of the Development Fee due hereunder and (b) Debt. If necessary to charge all money expended obtain the possession provided 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 Leaseabove, 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, Secured Party 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 invoke any and all such actionlegal remedies to dispossess Debtor, 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 Secured Party pursuant to this paragraph, being coupled with an interest, shall be irrevocable until all of the Development Obligations are fully paid and performed and Secured Party 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 Debtor resulting from any failure to sell or let the Collateral, omissionor any part thereof, error in judgment or mistake from any other act or omission of law, except as Secured Party with respect to the same may result from its Collateral unless such loss is caused by the gross negligence or wilful misconductwillful misconduct of Secured Party, nor shall Secured Party be obligated to perform or discharge any obligation, duty, or liability under any sale or lease
(b) Secured Party 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 Secured Party may deem best, and Secured Party may be the purchaser of any and all of the Collateral so sold and may apply upon the purchase price therefor any of the Debt and thereafter hold the same absolutely free from any right or claim of whatsoever kind. Notwithstanding In any such public or private sale, Secured Party may (but shall not be obligated to) submit a bid in the foregoingform of a credit against the Debt owed to Secured Party, and Secured Party or its designee may accept title to property purchased at such public or private sale. Upon any such sale Secured Party 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 property sold absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption, stay or appraisal which Debtor has or may have under any rule of law or statute now existing or hereafter adopted. To the extent notice is required by applicable law, Secured Party shall give Debtor written notice at the address set forth herein (which shall satisfy any requirement of notice or reasonable notice in any applicable statute) of Secured Party's intention to make any such public or private sale. Such notice (if any is required by applicable law) shall be personally delivered or mailed, postage prepaid, at least ten (10) calendar days before the date fixed for a public sale, or at least (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 Secured Party may fix in the event that the Lessor takes possession notice of the Leased Property and assumes control of the Project as aforesaidsuch sale. At any sale, the Lessor Collateral may be sold in one lot as an entirety or in separate parcels as Secured Party may determine. Secured Party shall not be obligated to continue make any sale pursuant to any such notice. Secured Party 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 Secured Party until the selling price is paid by the purchaser thereof, but Secured Party shall not incur 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 Section shall constitute disposition in a commercially reasonable manner. Each Obligor, to the extent applicable, shall remain liable for any period deficiency.
(c) Secured Party shall have all the rights of a secured party after default under the Uniform Commercial Code of the state or states where the applicable Collateral is situated, and in conjunction with, in addition to or in substitution for those rights and remedies:
(i) Secured Party may require Debtor to assemble the Collateral and make it available at a place Secured Party designates which is mutually convenient to allow Secured Party to take possession or dispose of the Collateral; and
(ii) it shall not be necessary that Secured Party take possession of the Collateral or any part thereof before the time longer that any sale pursuant to the provisions of this Article is conducted and it shall not be necessary that the Collateral or any part thereof be present at the location of such sale; and
(iii) before application of proceeds of disposition of the Collateral to the Debt, such proceeds shall be applied to the reasonable expenses of retaking, holding, preparing for sale or lease, selling, leasing, licensing, sublicensing and the like, as well as reasonable attorneys' fees and legal expenses incurred by Secured Party, each Obligor, to the extent applicable, to remain liable for any deficiency; and
(iv) the sale by Secured Party of less than the Lessor whole of the Collateral shall see fit not exhaust the rights of Secured Party hereunder, and Secured Party is specifically empowered to make successive sale or sales hereunder until the whole of the Collateral shall be sold; and, if the proceeds of such sale of less than the whole of the Collateral shall be less than the aggregate of the Debt, this Agreement and the security interest created hereby shall remain in full force and effect as to the unsold portion of the Collateral just as though no sale had been made; and
(v) in the event any sale hereunder is not completed or is defective in the reasonable opinion of Secured Party, such sale shall not exhaust the rights of Secured Party hereunder and Secured Party shall have the right to cause a subsequent sale or sales to be made hereunder; and
(vi) any and all statements of fact made in any bill xx sale or assignment or other instrument evidencing any foreclosure sale hereunder shall be taken as rebuttable evidence of the truth of the facts so stated; and
(vii) Secured Party may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by Secured Party, including the sending of notices and the conduct of sale, but in the name and on behalf of Secured Party; and
(viii) demand of performance, advertisement and presence of property at sale are hereby WAIVED and Secured Party is hereby authorized to sell hereunder any evidence of debt it may hold as security for the Debt. Except as provided herein or in any other Loan Document, all demands and presentments of any kind or nature are expressly WAIVED by Debtor. Debtor WAIVES the right to require Secured Party to pursue any other remedy for the benefit of Debtor and agrees that Secured Party may proceed against any Obligor for the amount of the Debt owed to Secured Party without taking any action against any other Obligor or any other person or entity and without selling or otherwise proceeding against or applying any of the Collateral in Secured Party's possession.
(d) Secured Party may apply to a court of competent jurisdiction for the appointment of a receiver, or a receiver and manager, over Debtor, or any or all of the Collateral, with such duties, powers and obligations as the court making such appointment shall confirm, and Debtor hereby irrevocably consents to the appointment of such receiver or such receiver and manager.
7.2 All remedies expressly provided for in the Agreement are cumulative of any and all other remedies existing at law or in equity and are cumulative of any and all other remedies provided for in any other instrument securing the payment of the Debt, or any part thereof, or otherwise benefiting Secured Party, and the resort to any remedy provided for hereunder or under any such other instrument or provided for by law shall not prevent the concurrent or subsequent employment of any other appropriate remedy or remedies.
7.3 Secured Party 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 Debt, in whole or in part, and in such portions and in such order as may seem best to Secured Party in its sole and absolute uncontrolled discretion), and any such action shall not in anywise be considered as a waiver of any of the Lessor rights, benefits or security interests evidenced by this Agreement.
7.4 To the full extent Debtor may thereafterdo so, Debtor agrees that Debtor will not at any timetime insist upon, abandon its efforts plead, claim or take the benefit or advantage of any law now or hereafter in force providing for any appraisement, valuation, stay, extension or redemption, and refuse Debtor, for Debtor, Debtor's successors, receivers, trustees and assigns, and for any and all persons ever claiming any interest in the Collateral, to make further payments for the account extent permitted by law, hereby WAIVE and release all rights of redemption, valuation, appraisement, stay of execution, notice of intention to mature or to declare due the whole of the Project, whether or not the Project has been completed. In addition, at the Lessor's option and without demandDebt, notice of election to mature or protest, to declare due the occurrence of any Event of Default shall also constitute a default under any one or more whole of the Related Party AgreementsDebt and all rights to a marshaling of the assets of Debtor, including the Collateral, or to a sale in inverse order of alienation in the event of foreclosure of the security interest hereby created.
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. Upon the occurrence of an Event any event of Defaultdefault, at Landlord shall have 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 Agreementsfollowing without any notice of demand, in addition to and not in limitation of any other remedy permitted by law or this Lease:
13.2.1 Terminate this Lease in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant shall fail to do so, Landlord may without notice and prejudice to any other remedy available, enter and take possession of the Premises and remove Tenant or anyone occupying the Premises and its effects without being Landlord Tenant 14 -------- ------ liable to prosecution or any claim for damages. Tenant agrees to indemnify Landlord for all loss and damage suffered by Landlord because of such termination whether through inability to relet the Premises or otherwise, including any loss of rent for the remainder of the term of the Lease.
13.2.2 Declare the entire amount of all rent which would have become due and payable during the remainder of the term of this Lease to be due and payable immediately, in which event Tenant agrees to pay the same to Landlord immediately. Such payment shall constitute payment in advance of the rent stipulated for the remainder of the Lease term. Acceptance by Landlord of the payment of such rent shall not constitute a waiver of any then existing default thereafter occurring.
13.2.3 Enter upon and take possession of the Premises as agent of Tenant without terminating this Lease and without being liable to prosecution or any claim for damages. Landlord may relet all or any portion of the Premises as the agent of Tenant for such term and upon such terms as Landlord sees fit and receive the rent, in which event Tenant shall pay to Landlord on demand the cost of renovating, repairing and altering the Premises for a new tenant or tenants, plus all costs of reletting the Premises and any deficiency arising by reason of such reletting; provided however, that Landlord shall have no duty to relet the Premises and Landlord's failure to do so shall not release Tenant's liability for rent or damages. If Landlord elects to enter and relet the Premises the Landlord may at any time thereafter elect to terminate this Lease for Tenant's default. If Landlord takes possession of the Premises. Landlord shall have the right to rent any other available space in the Building before reletting or attempting to relet the Premises.
13.2.4 Landlord may do whatever Tenant is obliged to do by the provisions of this lease and may enter the Premises without being liable to prosecution or claim for damages in order to accomplish this purpose. Tenant agrees to reimburse Landlord immediately upon demand for any expense which landlord may incur in complying with the terms of this lease on behalf of Tenant. Tenant agrees that Landlord shall not be liable for any damages to Tenant from such action, whether caused by negligence of Landlord or otherwise.
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 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 6.1 The term “default” as used in this Mortgage shall mean the occurrence failure of Grantor to pay any sums due Holder under the Note or under this Mortgage within ten (10) days of receipt by Grantor of demand for payment.
(a) If a default shall occur and be continuing, the Mortgagee shall have the right and option to proceed with foreclosure and to sell, to the extent permitted by law, all or any portion of the Mortgaged Property at one or more sales, as an Event entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by applicable law or, in the absence of Defaultany such requirements, as the Mortgagee may deem appropriate, and to make conveyance to the purchaser or purchasers.
(b) With regard to any part of the Mortgaged Property, it is agreed that the appraisement of any such properties is expressly waived at the option of the LessorMortgagee, which and any such option may be exercised at prior to the time judgment is rendered in any time after an Event foreclosure hereon.
(c) Notwithstanding any other provision of Default this Section 6.2, if any of the Secured Indebtedness is not promptly paid, Mortgagee shall have occurredthe right and power to proceed by a suit or suits in equity or at law, whether for the Lessor specific performance of any covenant or agreement herein contained or in aid of the execution of any power herein granted, or for any foreclosure hereunder or for the sale of the Mortgaged Property under the judgment or decree of any court or courts of competent jurisdiction.
(d) Notwithstanding any other provision, Mortgagee shall also have the option to proceed with foreclosure in satisfaction of any Secured Indebtedness which has not been paid when due either through the courts or by proceeding with foreclosure. It is further agreed that several sales may be made hereunder without exhausting the right of sale for any subsequent Secured Indebtedness, it being the purpose hereof to provide for a foreclosure and sale of the security for any matured portion of the Secured Indebtedness without exhausting the power to foreclose and sell the Mortgaged Property for any subsequently maturing portion of the Secured Indebtedness.
(e) The Mortgaged Property may be sold in one or more parcels and in such manner and order as Mortgagee, in his sole discretion, may elect, it being expressly understood and agreed that the right of sale arising out of any event of default shall not be exhausted by any one or more sales.
(f) Grantor agrees to the full extent that it lawfully may, that in the event of a default that has not been remedied, Mortgagee shall have the right and power to enter into and upon and take possession of all rights or any part of the Mortgaged Property in the possession of Grantor, its successors or assigns, or its or their agents or servants.
(g) Every right, power and remedies available remedy herein given to itMortgagee shall be cumulative and in addition to every other right, power and remedy herein specifically given or now or hereafter existing in equity, at law or by statute (including specifically those granted by the Uniform Commercial Code in equity, including, without limitation, all of the rights effect and remedies under the Development Documents and the Lease Documents. Subject applicable to the requirements of applicable lawMortgaged Property or any portion thereof) each and every right, all materials at that time on power and remedy whether specifically herein given 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 otherwise existing may be exercised from time to timetime and so often and in such order as may be deemed expedient by Mortgagee, and the exercise, or the beginning of the exercise, of any such right, power or remedy shall not be deemed a waiver of the right to exercise, at the same time or thereafter any other right, power or remedy. No delay or omission by Mortgagee in the exercise of any right, power or remedy shall impair any such right, power or remedy or operate as a waiver thereof or of any other right, power or remedy then or thereafter existing.
(h) Grantor shall not be relieved of any obligation herein by reason of the failure of Mortgagee to comply with any request of Grantor to foreclose the lien of this Mortgage or the release, regardless of consideration, of the Mortgaged Property or any portion thereof or interest therein.
(i) Mortgagee may release, regardless of consideration, any part of the Mortgaged Property without, as to the remainder, in any way impairing, affecting, subordinating or releasing the lien or security interest created in or evidenced by this Mortgage or its stature as a first and prior lien and security interest in and to the Mortgaged Property, and without in any way releasing or diminishing the liability of any person or entity liable for the repayment of the Secured Indebtedness. For payment of the Secured Indebtedness, Mortgagee may resort to any other security therefor held by Mortgagee in such order and manner as Mortgagee may elect.
(j) To the fullest extent permitted by law, Grantor hereby irrevocably and unconditionally waives and releases (a) all benefits that might accrue to offset all amounts expended hereunder Grantor by virtue of any present or future moratorium law or other law exempting the Lessor to complete the construction Mortgaged Property from attachment, levy or sale on execution or providing for any appraisement, valuation, stay of the Project and/or exercise any execution, exemption from civil process, redemption or extension of its other remedies hereunder against any portion of the Development Fee due hereunder and time for payment; (b) all notices of any event of default or of Mortgagee’s election to charge all money expended exercise (or his actual exercise of) any right, remedy or recourse provided for completion hereunder; and (c) any right to a marshaling of assets.
(k) In case Mortgagee shall have proceeded to invoke any right, remedy or recourse permitted hereunder and shall thereafter elect to discontinue or abandon same for any reason, Mortgagee shall have the unqualified right so to do and, in such an event, Grantor and Mortgagee shall be restored to their former positions with respect to the Secured Indebtedness, this Mortgage, the Mortgaged Property and otherwise, and the rights, remedies, recourses and powers of Mortgagee shall continue as if same had never been invoked.
(l) The proceeds of any sale of the Project against sums hereunder which have not already been advanced (even if the aggregate amount of such sums expended Mortgaged Property or any part thereof and all amounts previously advanced hereunder exceed other monies received by Mortgagee through any proceedings for the amount enforcement hereof or otherwise, shall be applied: FIRST, to the payment of all expenses incurred by Mortgagee incident to the enforcement of this Mortgage, the Note or any 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 Secured Indebtedness (including, without limitation, all sums expended in good faith by limiting the Lessor in connection with the completion generality 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, expenses of any entry or taking of possession, of any sale, of advertisement thereof and of conveyances, and court costs, compensation of agents and employees, legal fees and a reasonable commission to 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 discretionTrustee acting), and to the Lessor may thereafterpayment of all other charges, at expenses, liabilities and advances incurred or made by Mortgagee under this Mortgage or in executing any timepower hereunder; SECOND, abandon its efforts and refuse to make further payments for the account payment of the ProjectSecured Indebtedness in such order and manner as Mortgagee may elect; and, whether THIRD, to Grantor or not as otherwise required by any governmental authority having jurisdiction over the Project has been completedapplication of such proceeds.
6.3 To foreclose this Mortgage pursuant to the power of public sale contained herein in accordance with the laws of the State of Colorado, in which case Mortgagee/Holder shall (i) deliver to Trustee a written notice of default and election to cause Grantor’s interest in the Mortgaged Properties to be sold, and (ii) deposit with Trustee this Mortgage, and such receipts or evidence of the Secured Indebtedness as Trustee may require. In additionUpon receipt of such notice from Mortgagee/Holder, at Trustee shall give notice of sale and shall sell the Lessor's option Mortgaged Properties according to the laws of the State of Colorado. The costs and without demand, notice or protest, expenses incurred by Mortgagee/Holder in the occurrence exercise of any Event of Default shall also constitute a default under any one or more of the Related Party Agreementsremedies provided in this Mortgage shall be secured by this Mortgage.
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Remedies in Event of Default. Upon the occurrence of an Event any event of Defaultdefault, at Landlord shall have 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 Agreementsfollowing without any notice or demand, in addition to and not in limitation of any other remedy permitted by law or this Lease:
13.2.1 Terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant shall fail to do so, Landlord may without notice and prejudice to any other remedy available, enter and take possession of the Premises and remove Tenant or anyone occupying the Premises and its effects without being liable to prosecution or any claim for damages. Tenant agrees to indemnify Landlord for all loss and damage suffered by Landlord because of such termination whether through inability to relet the Premises or otherwise, including any loss of rent for the remainder of the term of this Lease.
13.2.2 Declare the entire amount of all rent which would have become due and payable during the remainder of the term of this Lease to be due and payable immediately, in which event Tenant agrees to pay the same to Landlord immediately. Such payment shall constitute payment in advance of the rent stipulated for the remainder of the Lease term. Acceptance by Landlord of the payment of such rent shall not constitute a waiver of any then existing default thereafter occurring.
13.2.3 Enter upon and take possession of the Premises as agent of Tenant without terminating this Lease and without being liable to prosecution or any claim for damages. Landlord may relet all or any portion of the Premises as the agent of Tenant for such term and upon such terms as Landlord sees fit and receive the rent, in which event Tenant shall pay to Landlord on demand the cost of renovating, repairing and altering the Premises for a new tenant or tenants, plus all costs of reletting the Premises and any deficiency arising by reason of such reletting; provided however, that Landlord shall have not duty to relet the Premises and Landlord's failure to do so shall not release Tenant's liability for rent or damages. If Landlord elects to enter and relet the Premises the Landlord may at any time thereafter elect to terminate this Lease for Tenant's default. If Landlord takes possession of the Premises, Landlord shall have the right to rent any other available space in the Building before reletting or attempting to relet the Premises. Landlord Tenant /s/ NDH /s/ BPS ------- -------
13.2.4 Landlord may do whatever Tenant is obliged to do by the provisions of this Lease and may enter the Premises without being liable to prosecution or claim for damages in order to accomplish this purpose. Tenant agrees to reimburse Landlord immediately upon demand for any expenses which Landlord may incur in complying with the terms of this Lease on behalf of Tenant. Tenant agrees that Landlord shall not be liable for any damages to Tenant from such action, whether caused by negligence of Landlord or otherwise.
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Remedies in Event of Default. 4.1. In case any one or more of the following events shall occur and be continuing, it shall constitute an Event of Default:
(a) Failure by the Borrower to pay any interest upon or principal of the Note, or failure of Borrower or the obligor under any other indebtedness (including any future advances made under the Loan Documents) secured hereby, to pay the same when the same shall become due and payable (whether by acceleration or otherwise); or
(b) Default by the Borrower in the due performance or observance of any covenant, warranty, or condition herein contained, or the occurrence of an Event of Default as described in the Loan Documents, subject to any applicable notice and curative periods provided therein; or
(c) The failure of the Borrower to pay over to the Beneficiary, upon the occurrence of any Event of Default hereunder which Borrower fails to cure under the applicable notice and curative periods provided in the Loan Documents and herein, any proceeds from the sale of the oil, gas, casinghead gas or other hydrocarbons produced, saved and sold from or allocated to the Mortgaged Properties which are paid to Borrower rather than to Beneficiary; or
(d) The failure of the lien and priority of this instrument to be fully maintained at all times, or of any right, title, interest or estate herein covenanted or warranted to be held or owned by the Borrower, or Borrower is found not to have good right and lawful authority to encumber and otherwise involve the Property or any part thereof, as herein provided.
4.2. In the event the Borrower shall cure or cause to be cured the foregoing Events of Default to the reasonable satisfaction of the Bank within thirty (30) days (except for failure to pay principal or interest on the Note in which the time to cure shall be five (5) days) after mailing notice to the defaulting party, the parties shall be restored to their respective rights and obligations under this Mortgage as if no such Event or Events of Default had occurred.
4.3. Upon the occurrence of an Event of DefaultDefault which Borrower fails to cure under the applicable notice and curative periods provided in the Loan Documents and herein, at the option Beneficiary may declare the entire unpaid indebtedness secured hereby, including interest then accrued thereon, to be forthwith due and payable, whereupon the same shall become and be forthwith due and payable, without other notice or demand of any kind, and the Beneficiary shall have all and any of the Lessorfollowing remedies:
(a) The Beneficiary may institute suit to foreclose the lien of this Mortgage in any court having jurisdiction. Borrower further agrees that, which in the event of any foreclosure sale, the Mortgaged Properties or any part thereof, may be sold with or without appraisement as the Beneficiary may elect. Such election may be exercised at any time prior to the entry of the decree of foreclosure. Should the Beneficiary elect to have the Mortgage Properties sold without appraisement, the Borrower hereby expressly waives appraisement. Beneficiary may elect to have such Property sold together or in separate parcels, and at any such sale, if the Beneficiary is the highest bidder, may become the purchaser thereof. The proceeds from any such sale, after paying therefrom the cost advanced or incurred by the Beneficiary in the foreclosure suit, including the cost of the sale and all costs and expenses incurred in the operation of the Mortgaged Properties by Beneficiary or a receiver appointed upon the application of the Beneficiary, shall be applied first to the payment of all costs and expenses incurred by the Beneficiary in the operation of the Mortgaged Properties, if the same be so operated, and any and all sums advanced by the Beneficiary for the purpose of protecting the security, with interest at a rate equal to the default rate of interest described in the Loan Documents, and second to the payment of all indebtedness secured hereby, including interest and attorneys’ fees, in such order of application as the Beneficiary may elect.
(b) The Beneficiary may take possession of the Property or any part thereof (the Borrower agreeing to give immediate peaceful possession) and collect and maintain, operate or control the same, and may apply all or any part of the income and proceeds to the payment of any development, operation or maintenance expenses incident in any order or application as the Beneficiary may elect; provided, that in the event of any dispute or question whatsoever concerning such income and proceeds or the application thereof, the Beneficiary may hold the same in a special account until such dispute or question is finally settled to the Beneficiary's satisfaction. Should the Beneficiary elect to collect such income and proceeds, this indenture shall constitute full and complete authority to any purchaser of oil, gas, casinghead gas, condensate or other hydrocarbons from the Mortgaged Properties or allocated thereto, or any part thereof, to deliver directly to the Beneficiary all proceeds from the sale of such products, and notice hereof without the requirement of anything more shall constitute an Event unqualified order on such purchaser to make such delivery. Every such purchaser is hereby authorized and directed to accept as sufficient the Beneficiary's written statement to the effect that a default has occurred hereunder and that the Beneficiary, subject to any applicable notice and curative opportunities required by the Loan Documents or provided herein, is entitled to such proceeds; and every such purchaser is hereby relieved from all responsibility with respect to the delivery of Default said proceeds for the Beneficiary’s application thereof;
(c) In addition to the rights afforded the Beneficiary in this Mortgage with respect to foreclosures by judicial process, it shall be the duty of the Trustee and of his successors and substitutes in the Trust, on Beneficiary’s request (which request is hereby presumed) to enforce the Trust by selling the Mortgaged Properties as hereafter provided. The Beneficiary shall have occurredthe right to declare a violation of any of the covenants herein contained and elect to advertise the Mortgaged Properties for sale and demand such sale, then, upon filing notice of such election and demand for sale with the Lessor Trustee, who shall have upon receipt of such notice of election and demand for sale cause a copy of the same to be recorded in the office of the Clerk and Recorder of the county in which the Mortgaged Properties are situated, it shall and may be lawful for the Trustee to sell and dispose of the same (en masse or in separate parcels, as Beneficiary may designate), and all rights the right, title and remedies available to itinterest of said Borrower, their successors or assigns therein, at law or in equity, including, without limitation, all public auction at the main front door of the rights and remedies under Courthouse in the Development Documents and county in which the Lease Documents. Subject to Mortgaged Properties are located or on the requirements of applicable Mortgaged Properties or any part thereof, or such other place as may be authorized or permitted by law, all materials as may be specified in the notice of said sale, for the highest and best price the same will bring in cash, four weeks’ public notice having been previously given of the time and place of such sale, by advertisement weekly, in some newspaper of general circulation at that time on or near published in said county, a copy of which notice shall be mailed within ten (10) days from the Leased Property which are the property date of the Developer first publication thereof to the Borrower at the address herein given and which to such person or persons appearing to have acquired a subsequent record interest in the Mortgaged Properties at the address given in the recorded instrument evidencing such interest, and where only the county and state are given as the address, then such notice shall be mailed to be used in connection with the completion county seat, and to make and give to the purchaser or purchasers of the Project Mortgaged Properties at such sale, a certificate or certificates in writing describing such Mortgaged Properties purchased, and the sum or sums paid therefor, and the time when the purchaser or purchasers (or other person entitled thereto) shall be subject entitled to a deed or deeds therefor, unless the Liens created same shall be redeemed as is provided by law; and the Trustee shall, upon demand by the Development Documents. In addition toperson or persons holding the said certificate or certificates of purchase, when said demand is made, or upon demand by the person entitled to a deed to and without limitation of, for the foregoing, the Lessor is authorizedMortgaged Properties purchased, at the Lessor's optiontime such demand is made the time for redemption having expired, make and execute to such person or persons a deed or deeds to the Mortgaged Properties purchased, which may said deed or deeds shall be exercised from time to timein the ordinary form of a conveyance, (a) to offset all amounts expended hereunder and shall be signed, acknowledged and delivered by the Lessor Trustee, as Borrower, and shall convey and quit claim to complete such person or persons entitled to such deed, as grantee, the construction Mortgaged Properties purchased as aforesaid and all the right, title, interest, benefit and equity of redemption of the Project and/or exercise any Borrower its heirs, successors and assigns therein, and shall recite the sum or sums for which the Mortgaged Properties were sold and shall refer to the power of its other remedies hereunder against any portion sale herein contained, and to the sale or sales made by virtue hereof; and in case 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 an assignment of such sums expended and all amounts previously advanced hereunder exceed the amount certificate or certificates 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 Leasepurchase, 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 case of the Developerredemption of the Mortgaged Properties by a subsequent encumbrancer, such assignment or redemption shall also be referred to in such deed or deeds; but the notice of sale need not be set out in such deed or deeds and the Trustee shall, out of the proceeds or avails of such sale, after first paying and retaining all fees, charges and costs of making said sale, pay to Beneficiary the principal and interest due on the Notes according to the tenor and effect thereof, and all monies advanced by Noteholders as applicable with interest thereon at the Developer hereby grants default rate set forth in the Lessor an irrevocable power of attorney to act in Notes, rendering the overplus, if any, unto Borrower, its name in connection with the foregoing. This power of attorney, being coupled with an interest, legal representatives or assigns; which sale or sales and said deed or deeds so made shall be irrevocable until a perpetual bar, both in law and equity, against Borrower, its heirs, successors and assigns, and all other persons claiming the Mortgaged Properties, or any part thereof, by, from, through or under the Borrower. The holder or holders of the Development Obligations are fully paid Notes may purchase the Mortgaged Properties or any part thereof; and performed and it shall not be affected by obligatory upon the purchaser or purchasers at any disability or incapacity which such sale to see to 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 application 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.purchase
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Samples: Deed of Trust (Beard Co /Ok)
Remedies in Event of Default. Upon 7.1 In addition to the other rights and remedies provided for in the Credit Agreement, upon the occurrence and during the continuation of an Event of Default:
(a) Secured Party is authorized, in any legal manner and without breach of the peace, to take possession of the Collateral (TSI HEREBY WAIVES ALL CLAIMS FOR DAMAGES ARISING FROM OR CONNECTED WITH ANY SUCH TAKING, EXCEPT AS MAY BE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SECURED PARTY) and of all books, records and accounts relating thereto and to exercise without interference from TSI any and all rights which TSI has with respect to the management, possession, operation, protection, preservation, distribution or resale of the Collateral, including the right to sell or rent the same for the account of TSI and to deduct from such sale proceeds or such rents all costs, expenses and liabilities of every character incurred by Secured Party in collecting such sale proceeds or such rents, and in managing, operating, maintaining, protecting or preserving the Collateral and to apply the remainder of such sales proceeds or such rents on the Debt in such manner as Secured Party may elect. Before any sale, Secured Party may, at its option, complete the option processing of any of the LessorCollateral and/or repair or recondition the same to such extent as Secured Party may deem advisable and any reasonable sums expended therefor by Secured Party shall be reimbursed by TSI. Secured Party may take possession of TSI's premises to complete such processing, which may be exercised at repairing and/or reconditioning, using the facilities and other property of TSI to do so, to store any time after an Event of Default shall have occurredCollateral and to conduct any sale as provided for herein, the Lessor shall have all rights without compensation to TSI. All costs, expenses, and remedies available to itliabilities incurred by Secured Party in collecting such sales proceeds or such rents, at law or in equitymanaging, includingoperating, without limitationmaintaining, protecting or preserving such properties, or in processing, repairing and/or reconditioning the Collateral if not paid out of such sales proceeds or such rents as hereinabove provided, shall constitute a demand obligation owing by TSI and shall bear interest from the date of expenditure until paid at the Past Due Rate, 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 constitute a portion of the Development Fee due hereunder and (b) Debt. If necessary to charge all money expended obtain the possession provided 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 Leaseabove, 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, Secured Party 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 invoke any and all such actionlegal remedies to dispossess TSI, 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 Secured Party pursuant to this paragraph, being coupled with an interest, shall be irrevocable until all of the Development Obligations are fully paid and performed and Secured Party 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 TSI resulting from any failure to sell or let the Collateral, omissionor any part thereof, error in judgment or mistake from any other act or omission of law, except as Secured Party with respect to the same may result from its Collateral unless such loss is caused by the gross negligence or wilful misconductwillful misconduct of Secured Party, nor shall Secured Party 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) Secured Party 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 Secured Party may deem best, and Secured Party may be the purchaser of any and all of the Collateral so sold and may apply upon the purchase price therefor any of the Debt and thereafter hold the same absolutely free from any right or claim of whatsoever kind. Notwithstanding In any such public or private sale, Secured Party may (but shall not be obligated to) submit a bid in the foregoingform of a credit against the Debt owed to Secured Party, and Secured Party or its designee may accept title to property purchased at such public or private sale. Upon any such sale Secured Party 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 property sold absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption, stay or appraisal which TSI has or may have under any rule of law or statute now existing or hereafter adopted. To the extent notice is required by applicable law, Secured Party shall give TSI written notice at the address set forth herein (which shall satisfy any requirement of notice or reasonable notice in any applicable statute) of Secured Party's intention to make any such public or private sale. Such notice (if any is required by applicable law) shall be personally delivered or mailed, postage prepaid, at least ten (10) calendar days before the date fixed for a public sale, or at least (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 Secured Party may fix in the event that the Lessor takes possession notice of the Leased Property and assumes control of the Project as aforesaidsuch sale. At any sale, the Lessor Collateral may be sold in one lot as an entirety or in separate parcels as Secured Party may determine. Secured Party shall not be obligated to continue make any sale pursuant to any such notice. Secured Party 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 Secured Party until the selling price is paid by the purchaser thereof, but Secured Party shall not incur 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 Section shall constitute disposition in a commercially reasonable manner. Each Obligor, to the extent applicable, shall remain liable for any period deficiency.
(c) Secured Party shall have all the rights of a secured party after default under the Uniform Commercial Code of the state or states where the applicable Collateral is situated, and in conjunction with, in addition to or in substitution for those rights and remedies:
(i) Secured Party may require TSI to assemble the Collateral and make it available at a place Secured Party designates which is mutually convenient to allow Secured Party to take possession or dispose of the Collateral; and
(ii) it shall not be necessary that Secured Party take possession of the Collateral or any part thereof before the time longer that any sale pursuant to the provisions of this Article is conducted and it shall not be necessary that the Collateral or any part thereof be present at the location of such sale; and
(iii) before application of proceeds of disposition of the Collateral to the Debt, such proceeds shall be applied to the reasonable expenses of retaking, holding, preparing for sale or lease, selling, leasing, licensing, sublicensing and the like, as well as reasonable attorneys' fees and legal expenses incurred by Secured Party, each Obligor, to the extent applicable, to remain liable for any deficiency; and
(iv) the sale by Secured Party of less than the Lessor whole of the Collateral shall see fit (in its sole and absolute discretion)not exhaust the rights of Secured Party hereunder, and the Lessor may thereafter, at any time, abandon its efforts and refuse Secured Party is specifically empowered to make further payments for successive sale or sales hereunder until the account whole of the ProjectCollateral shall be sold; and, whether if the proceeds of such sale of less than the whole of the Collateral shall be less than the aggregate of the Debt, this Agreement and the security interest created hereby shall remain in full force and effect as to the unsold portion of the Collateral just as though no sale had been made; and
(v) in the event any sale hereunder is not completed or is defective in the reasonable opinion of Secured Party, such sale shall not exhaust the Project has been completed. In addition, at rights of Secured Party hereunder and Secured Party shall have the Lessor's option right to cause a subsequent sale or sales to be made hereunder; and
(vi) any and without demand, notice all statements of fact made in any bill of sale or protest, assignment or other instrument evidencing any foreclosure sale hereunder shall be taken as rebuttable evidence of the occurrence truth of any Event of Default shall also constitute a default under the facts so stated; and
(vii) Secured Party may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by Secured Party, including the sending of notices and the conduct of sale, but in the name and on behalf of Secured Party; and
(viii) demand of performance, advertisement and presence of property at sale are hereby WAIVED and Secured Party is hereby authorized to sell hereunder any evidence of debt it may hold as security for the Debt. Except as provided herein or in any other Loan Document, all demands and presentments of any kind or nature are expressly WAIVED by TSI. TSI WAIVES the right to require Secured Party to pursue any other remedy for the benefit of TSI and agrees that Secured Party may proceed against any Obligor for the amount of the Related Debt owed to Secured Party Agreementswithout taking any action against any other Obligor or any other person or entity and without selling or otherwise proceeding against or applying any of the Collateral in Secured Party's possession.
(d) Secured Party may apply to a court of competent jurisdiction for the appointment of a receiver, or a receiver and manager, over TSI, or any or all of the Collateral, with such duties, powers and obligations as the court making such appointment shall confirm, and TSI hereby irrevocably consents to the appointment of such receiver or such receiver and manager.
7.2 All remedies expressly provided for in the Agreement are cumulative of any and all other remedies existing at law or in equity and are cumulative of any and all other remedies provided for in any other instrument securing the payment of the Debt, or any part thereof, or otherwise benefiting Secured Party, and the resort to any remedy provided for hereunder or under any such other instrument or provided for by law shall not prevent the concurrent or subsequent employment of any other appropriate remedy or remedies.
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. 7.1 Upon the occurrence and during the continuation of an Event of Default:
(a) Secured Party is authorized, in any legal manner and without breach of the peace, to take possession of the Collateral.
(b) Secured Party 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 option place of the Lessorsale) for cash, which upon credit, or for future delivery, and at such price or prices as Secured Party may deem best, and Secured Party may be exercised at the purchaser of 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 Collateral so sold and remedies under may apply upon the Development Documents purchase price therefor any of the Debt and thereafter hold the Lease Documentssame absolutely free from any right or claim of whatsoever kind. Subject Secured Party is authorized at any such sale, if Secured Party deems it advisable or is required by applicable law so to do, (i) to disclaim and to refuse to give any warranty, and (ii) to impose such other limitations or conditions in connection with any such sale as Secured Party deems reasonably necessary or advisable in order to comply with applicable law. Debtor covenants and agrees that it will execute and deliver such documents and take such other action as Secured Party deems reasonably necessary or advisable in order that any such sale may be made in compliance with applicable law. Upon any such sale Secured Party shall have the right to deliver, assign and transfer to the requirements purchaser thereof the Collateral so sold. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption, stay or appraisal which Debtor has or may have under any rule of law or statute now existing or hereafter adopted. To the extent notice is required by applicable law, all materials Secured Party shall give Debtor written notice at that time on the address set forth herein (which shall satisfy any requirement of notice or near reasonable notice in any applicable statute) of Secured Party’s intention to make any such public or private sale. Such notice (if any is required by applicable law) shall be personally delivered or mailed, postage prepaid, at least ten (10) calendar days before the Leased Property date fixed for a public sale, or at least ten (10) calendar days before the date after which are the property of the Developer and which are private sale or other disposition is to be used made, unless the Collateral is of a type customarily sold on a recognized market, is perishable or threatens to decline speedily in connection with the completion of the Project shall be subject to the Liens created value. Such notice (if any is required 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 hereunderapplicable law); and the Lessee agrees to pay to the Lessor Rent under the Facility Lease, calculated, in partcase of public sale, 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 state 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 place fixed for such things in connection with the construction of the Project as the Lessorsale or, in its sole and absolute discretion, may deem advisable, including, without limitationcase of private sale or other disposition other than a public sale, the right time after which the private sale or other such disposition is to make any payments with respect to any obligation of be made. Any public sale shall be held at such time or times, within the Developer to the Lessor ordinary business hours and at such place or to any other Person in connection with the completion of construction of the Project and to make additions and changes places, as Secured Party may fix in the Project Plans to employ contractors, subcontractors and agents and to take notice of such sale. At any and all such action, either sale the Collateral may be sold in the Lessor's own name one lot as an entirety 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 foregoingseparate parcels as Secured Party may determine. 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 Secured Party shall not be obligated to continue make any sale pursuant to any such notice. Secured Party 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 Secured Party until the selling price is paid by the purchaser thereof, but Secured Party 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 Section shall constitute disposition
in a commercially reasonable manner. Each Obligor, to the extent applicable, shall remain liable for any period deficiency.
(c) Secured Party shall have all the rights of a secured party after default under the Uniform Commercial Code of Texas and in conjunction with, in addition to or in substitution for those rights and remedies:
(i) Secured Party may require Debtor to assemble the Collateral and make it available at a place Secured Party designates which is mutually convenient to allow Secured Party to take possession or dispose of the Collateral; and
(ii) it shall not be necessary that Secured Party take possession of the Collateral or any part thereof before the time longer that any sale pursuant to the provisions of this Article is conducted and it shall not be necessary that the Collateral or any part thereof be present at the location of such sale; and
(iii) before application of proceeds of disposition of the Collateral to the Debt, such proceeds shall be applied to the reasonable expenses of retaking, holding, preparing for sale or lease, selling, leasing and the like and the reasonable attorneys’ fees and legal expenses incurred by Secured Party, each Obligor, to the extent applicable, to remain liable for any deficiency; and
(iv) the sale by Secured Party of less than the Lessor whole of the Collateral shall see fit (in its sole and absolute discretion)not exhaust the rights of Secured Party hereunder, and the Lessor may thereafter, at any time, abandon its efforts and refuse Secured Party is specifically empowered to make further payments for successive sale or sales hereunder until the account whole of the ProjectCollateral shall be sold; and, whether if the proceeds of such sale of less than the whole of the Collateral shall be less than the aggregate of the Debt, this Agreement and the security interest created hereby shall remain in full force and effect as to the unsold portion of the Collateral just as though no sale had been made; and
(v) in the event any sale hereunder is not completed or is defective in the opinion of Secured Party, such sale shall not exhaust the Project has been completed. In addition, at rights of Secured Party hereunder and Secured Party shall have the Lessor's option right to cause a subsequent sale or sales to be made hereunder; and
(vi) any and without demand, notice all statements of fact or protest, other recitals made in any xxxx of sale or assignment or other instrument evidencing any foreclosure sale hereunder as to nonpayment of any indebtedness or as to the occurrence of any Event default, or as to Secured Party having declared all of Default such indebtedness to be due and payable, or as to notice of time, place and terms of sale and the Collateral to be sold having been duly given, as to any other act or thing having been duly done by Secured Party, shall also constitute a default under be taken as prima facie evidence of the truth of the facts so stated and recited; and
(vii) Secured Party may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by Secured Party, including the sending of notices and the conduct of sale, but in the name and on behalf of Secured Party.
7.2 All remedies herein expressly provided for are cumulative of any and all other remedies existing at law or in equity and are cumulative of any and all other remedies provided for in any other instrument securing the payment of the Related Debt or any part thereof, or otherwise benefiting Secured Party, and the resort to any remedy provided for hereunder or under any such other instrument or provided for by law shall not prevent the concurrent or subsequent employment of any other appropriate remedy or remedies.
7.3 In the event that Debtor or any other Obligor is the subject of any insolvency, bankruptcy, receivership, dissolution, reorganization or similar proceeding, federal or state, voluntary or involuntary, under any present or future law or act, Secured Party Agreementsis entitled to the automatic and absolute lifting of any automatic stay as to the enforcement of its remedies under this Agreement or the Purchase Agreement against the security for the Debt, including specifically the stay imposed by Section 362 of the United States Federal Bankruptcy Code, as amended. Debtor hereby consents to the immediate lifting of any such automatic stay, and will not contest any motion by Secured Party to lift such stay. Debtor expressly acknowledges that the Collateral is security for the Debt, and is not now, and will never be, necessary to any plan of reorganization of any type.
Appears in 1 contract
Remedies in Event of Default. Upon 7.1 In addition to the other rights and remedies provided for in the Credit Agreement, upon the occurrence and during the continuation of an Event of Default:
(a) Secured Party is authorized, in any legal manner and without breach of the peace, to take possession of the Collateral (TCS HEREBY WAIVES ALL CLAIMS FOR DAMAGES ARISING FROM OR CONNECTED WITH ANY SUCH TAKING, EXCEPT AS MAY BE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SECURED PARTY) and of all books, records and accounts relating thereto and to exercise without interference from TCS any and all rights which TCS has with respect to the management, possession, operation, protection, preservation, distribution or resale of the Collateral, including the right to sell or rent the same for the account of TCS and to deduct from such sale proceeds or such rents all costs, expenses and liabilities of every character incurred by Secured Party in collecting such sale proceeds or such rents, and in managing, operating, maintaining, protecting or preserving the Collateral and to apply the remainder of such sales proceeds or such rents on the Debt in such manner as Secured Party may elect. Before any sale, Secured Party may, at its option, complete the option processing of any of the LessorCollateral and/or repair or recondition the same to such extent as Secured Party may deem advisable and any reasonable sums expended therefor by Secured Party shall be reimbursed by TCS. Secured Party may take possession of TCS's premises to complete such processing, which may be exercised at repairing and/or reconditioning, using the facilities and other property of TCS to do so, to store any time after an Event of Default shall have occurredCollateral and to conduct any sale as provided for herein, the Lessor shall have all rights without compensation to TCS. All costs, expenses, and remedies available to itliabilities incurred by Secured Party in collecting such sales proceeds or such rents, at law or in equitymanaging, includingoperating, without limitationmaintaining, protecting or preserving such properties, or in processing, repairing and/or reconditioning the Collateral if not paid out of such sales proceeds or such rents as hereinabove provided, shall constitute a demand obligation owing by TCS and shall bear interest from the date of expenditure until paid at the Past Due Rate, 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 constitute a portion of the Development Fee due hereunder and (b) Debt. If necessary to charge all money expended obtain the possession provided 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 Leaseabove, 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, Secured Party 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 invoke any and all such actionlegal remedies to dispossess TCS, 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 Secured Party pursuant to this paragraph, being coupled with an interest, shall be irrevocable until all of the Development Obligations are fully paid and performed and Secured Party 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 TCS resulting from any failure to sell or let the Collateral, omissionor any part thereof, error in judgment or mistake from any other act or omission of law, except as Secured Party with respect to the same may result from its Collateral unless such loss is caused by the gross negligence or wilful misconductwillful misconduct of Secured Party, nor shall Secured Party 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) Secured Party 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 Secured Party may deem best, and Secured Party may be the purchaser of any and all of the Collateral so sold and may apply upon the purchase price therefor any of the Debt and thereafter hold the same absolutely free from any right or claim of whatsoever kind. Notwithstanding In any such public or private sale, Secured Party may (but shall not be obligated to) submit a bid in the foregoingform of a credit against the Debt owed to Secured Party, and Secured Party or its designee may accept title to property purchased at such public or private sale. Upon any such sale Secured Party 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 property sold absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption, stay or appraisal which TCS has or may have under any rule of law or statute now existing or hereafter adopted. To the extent notice is required by applicable law, Secured Party shall give TCS written notice at the address set forth herein (which shall satisfy any requirement of notice or reasonable notice in any applicable statute) of Secured Party's intention to make any such public or private sale. Such notice (if any is required by applicable law) shall be personally delivered or mailed, postage prepaid, at least ten (10) calendar days before the date fixed for a public sale, or at least (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 Secured Party may fix in the event that the Lessor takes possession notice of the Leased Property and assumes control of the Project as aforesaidsuch sale. At any sale, the Lessor Collateral may be sold in one lot as an entirety or in separate parcels as Secured Party may determine. Secured Party shall not be obligated to continue make any sale pursuant to any such notice. Secured Party 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 Secured Party until the selling price is paid by the purchaser thereof, but Secured Party shall not incur 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 Section shall constitute disposition in a commercially reasonable manner. Each Obligor, to the extent applicable, shall remain liable for any period deficiency.
(c) Secured Party shall have all the rights of a secured party after default under the Uniform Commercial Code of the state or states where the applicable Collateral is situated, and in conjunction with, in addition to or in substitution for those rights and remedies:
(i) Secured Party may require TCS to assemble the Collateral and make it available at a place Secured Party designates which is mutually convenient to allow Secured Party to take possession or dispose of the Collateral; and
(ii) it shall not be necessary that Secured Party take possession of the Collateral or any part thereof before the time longer that any sale pursuant to the provisions of this Article is conducted and it shall not be necessary that the Collateral or any part thereof be present at the location of such sale; and
(iii) before application of proceeds of disposition of the Collateral to the Debt, such proceeds shall be applied to the reasonable expenses of retaking, holding, preparing for sale or lease, selling, leasing, licensing, sublicensing and the like, as well as reasonable attorneys' fees and legal expenses incurred by Secured Party, each Obligor, to the extent applicable, to remain liable for any deficiency; and
(iv) the sale by Secured Party of less than the Lessor whole of the Collateral shall see fit not exhaust the rights of Secured Party hereunder, and Secured Party is specifically empowered to make successive sale or sales hereunder until the whole of the Collateral shall be sold; and, if the proceeds of such sale of less than the whole of the Collateral shall be less than the aggregate of the Debt, this Agreement and the security interest created hereby shall remain in full force and effect as to the unsold portion of the Collateral just as though no sale had been made; and
(v) in the event any sale hereunder is not completed or is defective in the reasonable opinion of Secured Party, such sale shall not exhaust the rights of Secured Party hereunder and Secured Party shall have the right to cause a subsequent sale or sales to be made hereunder; and
(vi) any and all statements of fact made in any bill of sale or assignment or other instrument evidencing any foreclosure sale hereunder shall be taken as rebuttable evidence of the truth of the facts so stated; and
(vii) Secured Party may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by Secured Party, including the sending of notices and the conduct of sale, but in the name and on behalf of Secured Party; and
(viii) demand of performance, advertisement and presence of property at sale are hereby WAIVED and Secured Party is hereby authorized to sell hereunder any evidence of debt it may hold as security for the Debt. Except as provided herein or in any other Loan Document, all demands and presentments of any kind or nature are expressly WAIVED by TCS. TCS WAIVES the right to require Secured Party to pursue any other remedy for the benefit of TCS and agrees that Secured Party may proceed against any Obligor for the amount of the Debt owed to Secured Party without taking any action against any other Obligor or any other person or entity and without selling or otherwise proceeding against or applying any of the Collateral in Secured Party's possession.
(d) Secured Party may apply to a court of competent jurisdiction for the appointment of a receiver, or a receiver and manager, over TCS, or any or all of the Collateral, with such duties, powers and obligations as the court making such appointment shall confirm, and TCS hereby irrevocably consents to the appointment of such receiver or such receiver and manager.
7.2 All remedies expressly provided for in the Agreement are cumulative of any and all other remedies existing at law or in equity and are cumulative of any and all other remedies provided for in any other instrument securing the payment of the Debt, or any part thereof, or otherwise benefiting Secured Party, and the resort to any remedy provided for hereunder or under any such other instrument or provided for by law shall not prevent the concurrent or subsequent employment of any other appropriate remedy or remedies.
7.3 Secured Party 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 Debt, in whole or in part, and in such portions and in such order as may seem best to Secured Party in its sole and absolute uncontrolled discretion), and any such action shall not in anywise be considered as a waiver of any of the Lessor rights, benefits or security interests evidenced by this Agreement.
7.4 To the full extent TCS may thereafterdo so, TCS agrees that TCS will not at any timetime insist upon, abandon its efforts plead, claim or take the benefit or advantage of any law now or hereafter in force providing for any appraisement, valuation, stay, extension or redemption, and refuse TCS, for TCS, TCS's successors, receivers, trustees and assigns, and for any and all persons ever claiming any interest in the Collateral, to make further payments for the account extent permitted by law, hereby WAIVE and release all rights of redemption, valuation, appraisement, stay of execution, notice of intention to mature or to declare due the whole of the Project, whether or not the Project has been completed. In addition, at the Lessor's option and without demandDebt, notice of election to mature or protest, to declare due the occurrence of any Event of Default shall also constitute a default under any one or more whole of the Related Party AgreementsDebt and all rights to a marshaling of the assets of TCS, including the Collateral, or to a sale in inverse order of alienation in the event of foreclosure of the security interest hereby created.
Appears in 1 contract
Remedies in Event of Default. Upon 7.1 During the occurrence continuation of an Event of Default, at :
(a) Secured Party shall have the option of declaring, without notice to any Person, all Debt to be immediately due and payable.
(b) Secured Party is authorized, in any legal manner and without breach of the Lessorpeace, which to take possession of the Collateral (Debtor hereby WAIVING all claims for damages arising from or connected with any such taking, except as may be exercised at caused by the gross negligence, bad faith or willful misconduct of Secured Party) and of all books, records and accounts relating thereto and to exercise, without interference from Debtor, any time after an Event of Default shall have occurred, the Lessor shall have and all rights which Debtor has with respect to the management, possession, operation, protection or preservation of the Collateral, including the right to sell or rent the same for the account of Debtor and remedies available to itdeduct from such sale proceeds or such rents all costs, expenses and liabilities of every character incurred by Secured Party in collecting such sale proceeds or such rents and in managing, operating, maintaining, protecting or preserving the Collateral and to apply the remainder of such sales proceeds or such rents on the Debt. Before any sale, Secured Party may, at law its option, complete the processing of any of the Collateral and/or repair or recondition the same to such extent as Secured Party may deem advisable. Secured Party may take possession of Debtor's premises to complete such processing, repairing and/or reconditioning, using the facilities and other Property of Debtor to do so, to store any Collateral and to conduct any sale as provided for herein, all without compensation to Debtor. All costs, expenses, and liabilities incurred by Secured Party in collecting such sales proceeds or such rents, or in equitymanaging, includingoperating, without limitationmaintaining, protecting or preserving such Properties, or in processing, repairing and/or reconditioning the Collateral if not paid out of such sales proceeds or such rents as hereinabove provided, shall constitute a demand obligation owing by Debtor and shall bear interest from the date of expenditure until paid at the Past Due Rate, 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 constitute a portion of the Development Fee due hereunder and (b) Debt. If necessary to charge all money expended obtain the possession provided 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 Leaseabove, 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, Secured Party 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 invoke any and all such actionlegal remedies to dispossess Debtor, 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 Secured Party pursuant to this paragraph, 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 neither Secured Party nor 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 Lender shall be liable for any actloss sustained by Debtor resulting from any failure to sell or let the Collateral, omissionor any part thereof, error in judgment or mistake from any other act or omission of lawSecured Party or any Lender with respect to the Collateral unless such loss is caused by the gross negligence, except as the same may result from its gross negligence willful misconduct or wilful misconduct. Notwithstanding the foregoingbad faith of Secured Party or any Lender, 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 nor shall not Secured Party be obligated to continue the construction of the Project for perform or discharge any period of time longer than the Lessor shall see fit (in its sole and absolute discretion)obligation, and the Lessor may thereafterduty, 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 liability under any one sale or more lease agreement covering the Collateral or any part thereof or under or by reason of this instrument or the Related Party Agreementsexercise of rights or remedies hereunder.
Appears in 1 contract
Samples: Security Agreement (Boots & Coots International Well Control Inc)
Remedies in Event of Default. Upon 7.1 In addition to the other rights and remedies provided for in the Credit Agreement, upon the occurrence and during the continuation of an Event of Default:
(a) Secured Party is authorized, in any legal manner and without breach of the peace, to take possession of the Collateral (DEBTOR HEREBY WAIVES ALL CLAIMS FOR DAMAGES ARISING FROM OR CONNECTED WITH ANY SUCH TAKING, EXCEPT AS MAY BE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SECURED PARTY) and of all books, records and accounts relating thereto and to exercise without interference from Debtor any and all rights which Debtor has with respect to the management, possession, operation, protection, preservation, distribution or resale of the Collateral, including the right to sell or rent the same for the account of Debtor and to deduct from such sale proceeds or such rents all costs, expenses and liabilities of every character incurred by Secured Party in collecting such sale proceeds or such rents, and in managing, operating, maintaining, protecting or preserving the Collateral and to apply the remainder of such sales proceeds or such rents on the Debt in such manner as Secured Party may elect. Before any sale, Secured Party may, at its option, complete the option processing of any of the LessorCollateral and/or repair or recondition the same to such extent as Secured Party may deem advisable and any reasonable sums expended therefor by Secured Party shall be reimbursed by Debtor. Secured Party may take possession of Debtor's premises to complete such processing, which may be exercised at repairing and/or reconditioning, using the facilities and other property of Debtor to do so, to store any time after an Event of Default shall have occurredCollateral and to conduct any sale as provided for herein, the Lessor shall have all rights without compensation to Debtor. All costs, expenses, and remedies available to itliabilities incurred by Secured Party in collecting such sales proceeds or such rents, at law or in equitymanaging, includingoperating, without limitationmaintaining, protecting or preserving such properties, or in processing, repairing and/or reconditioning the Collateral if not paid out of such sales proceeds or such rents as hereinabove provided, shall constitute a demand obligation owing by Debtor and shall bear interest from the date of expenditure until paid at the Past Due Rate, 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 constitute a portion of the Development Fee due hereunder and (b) Debt. If necessary to charge all money expended obtain the possession provided 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 Leaseabove, 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, Secured Party 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 invoke any and all such actionlegal remedies to dispossess Debtor, 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 Secured Party pursuant to this paragraph, being coupled with an interest, shall be irrevocable until all of the Development Obligations are fully paid and performed and Secured Party 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 Debtor resulting from any failure to sell or let the Collateral, omissionor any part thereof, error in judgment or mistake from any other act or omission of law, except as Secured Party with respect to the same may result from its Collateral unless such loss is caused by the gross negligence or wilful misconductwillful misconduct of Secured Party, nor shall Secured Party 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) Secured Party 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 Secured Party may deem best, and Secured Party may be the purchaser of any and all of the Collateral so sold and may apply upon the purchase price therefor any of the Debt and thereafter hold the same absolutely free from any right or claim of whatsoever kind. Notwithstanding In any such public or private sale, Secured Party may (but shall not be obligated to) submit a bid in the foregoingform of a credit against the Debt owed to Secured Party, and Secured Party or its designee may accept title to property purchased at such public or private sale. Upon any such sale Secured Party 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 property sold absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption, stay or appraisal which Debtor has or may have under any rule of law or statute now existing or hereafter adopted. To the extent notice is required by applicable law, Secured Party shall give Debtor written notice at the address set forth herein (which shall satisfy any requirement of notice or reasonable notice in any applicable statute) of Secured Party's intention to make any such public or private sale. Such notice (if any is required by applicable law) shall be personally delivered or mailed, postage prepaid, at least ten (10) calendar days before the date fixed for a public sale, or at least (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 Secured Party may fix in the event that the Lessor takes possession notice of the Leased Property and assumes control of the Project as aforesaidsuch sale. At any sale, the Lessor Collateral may be sold in one lot as an entirety or in separate parcels as Secured Party may determine. Secured Party shall not be obligated to continue make any sale pursuant to any such notice. Secured Party 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 Secured Party until the selling price is paid by the purchaser thereof, but Secured Party shall not incur 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 Section shall constitute disposition in a commercially reasonable manner. Each Obligor, to the extent applicable, shall remain liable for any period deficiency.
(c) Secured Party shall have all the rights of a secured party after default under the Uniform Commercial Code of the state or states where the applicable Collateral is situated, and in conjunction with, in addition to or in substitution for those rights and remedies:
(i) Secured Party may require Debtor to assemble the Collateral and make it available at a place Secured Party designates which is mutually convenient to allow Secured Party to take possession or dispose of the Collateral; and
(ii) it shall not be necessary that Secured Party take possession of the Collateral or any part thereof before the time longer that any sale pursuant to the provisions of this Article is conducted and it shall not be necessary that the Collateral or any part thereof be present at the location of such sale; and
(iii) before application of proceeds of disposition of the Collateral to the Debt, such proceeds shall be applied to the reasonable expenses of retaking, holding, preparing for sale or lease, selling, leasing, licensing, sublicensing and the like, as well as reasonable attorneys' fees and legal expenses incurred by Secured Party, each Obligor, to the extent applicable, to remain liable for any deficiency; and
(iv) the sale by Secured Party of less than the Lessor whole of the Collateral shall see fit not exhaust the rights of Secured Party hereunder, and Secured Party is specifically empowered to make successive sale or sales hereunder until the whole of the Collateral shall be sold; and, if the proceeds of such sale of less than the whole of the Collateral shall be less than the aggregate of the Debt, this Agreement and the security interest created hereby shall remain in full force and effect as to the unsold portion of the Collateral just as though no sale had been made; and
(v) in the event any sale hereunder is not completed or is defective in the reasonable opinion of Secured Party, such sale shall not exhaust the rights of Secured Party hereunder and Secured Party shall have the right to cause a subsequent sale or sales to be made hereunder; and
(vi) any and all statements of fact made in any bill of sale or assignment or other instrument evidencing any fxxxxlosure sale hereunder shall be taken as rebuttable evidence of the truth of the facts so stated; and
(vii) Secured Party may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by Secured Party, including the sending of notices and the conduct of sale, but in the name and on behalf of Secured Party; and
(viii) demand of performance, advertisement and presence of property at sale are hereby WAIVED and Secured Party is hereby authorized to sell hereunder any evidence of debt it may hold as security for the Debt. Except as provided herein or in any other Loan Document, all demands and presentments of any kind or nature are expressly WAIVED by Debtor. Debtor WAIVES the right to require Secured Party to pursue any other remedy for the benefit of Debtor and agrees that Secured Party may proceed against any Obligor for the amount of the Debt owed to Secured Party without taking any action against any other Obligor or any other person or entity and without selling or otherwise proceeding against or applying any of the Collateral in Secured Party's possession.
(d) Secured Party may apply to a court of competent jurisdiction for the appointment of a receiver, or a receiver and manager, over Debtor, or any or all of the Collateral, with such duties, powers and obligations as the court making such appointment shall confirm, and Debtor hereby irrevocably consents to the appointment of such receiver or such receiver and manager.
7.2 All remedies expressly provided for in the Agreement are cumulative of any and all other remedies existing at law or in equity and are cumulative of any and all other remedies provided for in any other instrument securing the payment of the Debt, or any part thereof, or otherwise benefiting Secured Party, and the resort to any remedy provided for hereunder or under any such other instrument or provided for by law shall not prevent the concurrent or subsequent employment of any other appropriate remedy or remedies.
7.3 Secured Party 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 Debt, in whole or in part, and in such portions and in such order as may seem best to Secured Party in its sole and absolute uncontrolled discretion), and any such action shall not in anywise be considered as a waiver of any of the Lessor rights, benefits or security interests evidenced by this Agreement.
7.4 To the full extent Debtor may thereafterdo so, Debtor agrees that Debtor will not at any timetime insist upon, abandon its efforts plead, claim or take the benefit or advantage of any law now or hereafter in force providing for any appraisement, valuation, stay, extension or redemption, and refuse Debtor, for Debtor, Debtor's successors, receivers, trustees and assigns, and for any and all persons ever claiming any interest in the Collateral, to make further payments for the account extent permitted by law, hereby WAIVE and release all rights of redemption, valuation, appraisement, stay of execution, notice of intention to mature or to declare due the whole of the Project, whether or not the Project has been completed. In addition, at the Lessor's option and without demandDebt, notice of election to mature or protest, to declare due the occurrence of any Event of Default shall also constitute a default under any one or more whole of the Related Party AgreementsDebt and all rights to a marshaling of the assets of Debtor, including the Collateral, or to a sale in inverse order of alienation in the event of foreclosure of the security interest hereby created.
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 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. 5.1 The terms "Default" and "Event of Default" as used in this instrument shall each mean the failure of Borrower to make any payment under the Note when due or the failure of Grantor to timely and properly observe, keep or perform any covenant, agreement or condition required to be observed, kept or performed under any Loan Document.
5.2 It is intended that the Loan Documents be cross-defaulted and cross-collateralized such that a Default under one Loan Document shall constitute a Default under every other Loan Document entitling Leader to avail itself of all remedies, legal or equitable, arising under any of the Loan Documents or under applicable law.
5.3 Upon the occurrence and during the continuance of any Event of Default, Lender may, at its sole option and sole remedy, without notice to Grantor, or either of them, declare the principal of and interest accrued on the Note to be forthwith due and payable, whereupon the same shall become due and payable without any presentment, demand, protest, notice of protest, notice of intent to accelerate, notice of acceleration or notice of any kind, all of which are all hereby waived.
5.4 Upon the occurrence of an Event of Default, Grantor, and each of them, hereby authorize(s) and empower(s) the Trustee, and each and all of his or its successors in this trust, at the option request of the LessorLender, at any time when Grantor, or either of them, shall be in Default in the performance of any covenant or agreement in the Note or hereunder to sell the Covered Properties at public venue to the highest bidder, for cash. Except as may be required by the laws of the jurisdiction in which any of the Covered Properties are located, this power of sale may be exercised by Lender or Trustee without judicial action or authority. The sale shall be made at the location, time and in accordance with the requirements of the laws of the jurisdiction where the Covered Properties are located. If the Covered Properties are located in a state where non-judicial foreclosure is allowed by power of sale granted in the mortgage document, the sale shall occur between the hours of 8:00 a.m. and 5:00 p.m. on the date specified in the written notice required by the laws of the jurisdiction where the said Covered Properties are located in the county in which the Covered Properties, or any time after part thereof are situated; provided, however, that if the Covered Properties are situated in more than one county such sale of the Covered Properties, or any part thereof, may be made in the county in the state of Utah wherein any part of the Covered Properties are situated. The sale shall be made at the area of the County Courthouse designated for such sales by either the Commissioner's Court, County Recorder’s Office or such other authorized government agency charged with such matters, of such county, in an instrument heretofore recorded in the real property records of that county; provided that, if the said Commissioner's Court, County Recorder's Office and/or governmental agencies has not hereto for recorded a written instrument designating the area in which such sales shall occur in the real property records of such county, then the sale shall take place at the area of the County Courthouse designated in the notice of sale. Upon the occurrence of an Event of Default shall have occurredDefault, Grantor, and each of them, hereby authorize(s) and empower(s) the Lessor shall have Trustee, and each and all rights and remedies available of Trustee’s successors in this trust, to itsell the Covered Properties, at law or any interest or estate in the Covered Properties together or in equitylots or parcels, includingas such Trustee shall deem expedient, without limitation, all and to execute and deliver to the purchaser or purchasers of the rights Covered Properties good and remedies under the Development Documents sufficient deed or deeds of conveyance thereof and the Lease Documents. Subject bills of sale with covenants of general warranty binding on Grantor and its successors and assigns, to the requirements of applicable law, all materials at that time on or near extent allowed by the Leased Property which are the property laws of the Developer and which jurisdiction where such Covered Properties are to be used in connection with located. The proceeds of said sale or sales received by the completion of the Project Trustee 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 (applied 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.follows:
Appears in 1 contract
Samples: Loan Agreement (SD Co 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 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, and to the creditors, Thermo Credit, LLC and YA Global Investments, L.P., 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 (Telkonet 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 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)
