REMEDIES OF LANDLORD; WAIVER OF REDEMPTION. 15.01. In case of any such re-entry, expiration and/or dispossession by summary proceedings or other legal proceedings as set forth in Article 14 hereof (a) the rent shall become due thereupon and be paid up to the time of such re-entry, expiration and/or dispossession, together with such expenses as Landlord may reasonably incur for legal expenses, reasonable attorneys' fees, brokerage fees, and/or putting the demised premises into the condition in which Tenant would have been obligated to deliver the demised premises on the fixed expiration date of the term; (b) Landlord may re-let the demised premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms which may at Landlord's option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and may grant concessions or free rent; and/or (c) Tenant shall, in addition to the other rights and remedies Landlord has, or may claim by virtue of any other provision contained herein or by virtue of any statute or rule of law, also pay Landlord as liquidated damages (and not as a penalty) for the failure of Tenant to observe and perform said Tenant's covenants, agreements, terms, provisions and conditions herein contained: (y) any deficiency between the rent hereby reserved and/or covenanted to be paid and the net amount, if any, of the rents collected on account of the lease or leases of the demised premises (or, in the event that Landlord or any Affiliate of Landlord, at its or their option but without any obligation to do so, re-occupies any portion of the demised premises, the fair market rental value attributable to the portion of the demised premises so occupied for the period of such occupancy) for each month of the period which would otherwise have constituted the balance of the term of this Lease, or, at Landlord's option, but in lieu of any other damages which may otherwise be recoverable by Landlord hereunder with respect to the loss of the benefit of Landlord's bargain, (z) a sum which at the time of such termination of this Lease or at the time of any such re-entry by Landlord, as the case may be, represents the then present value of the excess (employing a discount factor equal to the Treasury Rate, as such term is hereinafter defined), if any, of (i) the aggregate amount of the basic annual rent and the additional rent which would have been payable by Tenant (conclusively presuming the average monthly additional rent to be the same as were payable for the last twelve (12) calendar months, or if fewer than twelve (12) calendar months have then elapsed from the last Rent Commencement Date, all of the calendar months immediately preceding such termination or re-entry) for the period commencing with such earlier termination of this Lease or the date of any such re-entry, as the case may be, and ending with the date contemplated as the expiration date hereof if this Lease had not so terminated or if Landlord had not so re-entered the demised premises, over (ii) the aggregate fair market rental value of the demised premises for the same period. The failure or refusal of Landlord to re-let the demised premises or any part or parts thereof shall not release or affect Tenant's liability for damages. In computing such liquidated damages there shall be added to the said deficiency such actual out-of-pocket expenses as Landlord may reasonably incur in connection with re-letting, such as legal expenses, reasonable attorneys' fees, brokerage fees and for keeping the demised premises in good order or for preparing the same re-letting. Any liquidated damages payable pursuant to clause (y) of this Section 15.01 shall be paid in monthly installments by Tenant on the rent days specified in this Lease and any suit brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Landlord to collect the deficiency for any subsequent month by a similar proceeding. Landlord, at Landlord's option, may make such alterations, repairs, replacements and/or decorations in the demised premises as Landlord, in Landlord's reasonable judgment, considers advisable and necessary for the purpose of re-letting the demised premises; and the making of such alterations and/or decorations shall not operate or be construed to release Tenant from liability hereunder as aforesaid. Landlord shall in no event be liable in any way whatsoever for failure or refusal to re-let the demised premises or any parts thereof, or, in the event that the demised premises are re-let, for failure to collect the rent thereof under such re-letting. 15.02. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant's being evicted or dispossessed for any cause, or in the event of Landlord's obtaining possession of the demised premises, by reason of the violation by Tenant of any of the covenants, terms, provisions and conditions of this Lease or otherwise (beyond applicable notice and grace periods). 15.03. Suit or suits for the recovery of such damages, or any installments thereof, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Article 14 or under any provision of law, or had Landlord not re-entered the demised premises. Except as expressly set forth in Section 15.01 and Section 44.07 hereof, nothing herein contained shall be construed to limit or preclude recovery by Landlord or Tenant against the other of any sums or damages to which, in addition to the damages particularly provided herein, such party may lawfully recover. 15.04. In the event of a breach or threatened breach by either Landlord or Tenant of any of the covenants, agreements, terms, provisions and conditions hereof, the non-breaching party shall have the right to seek an injunction and the right to invoke any remedy allowed at law or in equity, and the mention in this Lease of any particular remedy shall not preclude Landlord or Tenant from any other remedy, at law or in equity, except as expressly set forth in Section 15.01 and Section 44.07 hereof and except for consequential and punitive damage, which consequential and punitive damages Landlord and Tenant each hereby waive and release.
Appears in 1 contract
Samples: Lease Agreement (Credit Suisse First Boston Usa Inc)
REMEDIES OF LANDLORD; WAIVER OF REDEMPTION. 15.0100.00. In Xx case of any such re-entry, expiration and/or dispossession dispossess by summary proceedings or other legal proceedings otherwise as set forth in Article 14 hereof (a) 26 the rent shall become due thereupon and be paid up to the time of such re-entry, expiration dispossess and/or dispossessionexpiration, together with such reasonable expenses as Landlord may reasonably incur for legal expenses, reasonable attorneys' fees, brokerage feesbrokerage, and/or putting the demised premises into in good order or for preparing the condition in which Tenant would have been obligated to deliver the demised premises on the fixed expiration date of the termsame for re-rental; (b) Landlord may re-let let* the demised premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms terms, which may at Landlord's option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and may grant concessions or free rent; and/or (c) Tenant shall, in addition to the other rights and remedies Landlord has, or may claim by virtue of any other provision contained herein or by virtue of any statute or rule of law, shall also pay Landlord as liquidated damages (and not as a penalty) for the failure of Tenant to observe and perform said Tenant's covenants, agreements, terms, provisions and conditions covenants herein contained: (y) , any deficiency between the rent hereby reserved and/or covenanted to be paid and the net amount, if any, of the rents collected on account of the lease or leases of the demised premises (or, in the event that Landlord or any Affiliate of Landlord, at its or their option but without any obligation to do so, re-occupies any portion of the demised premises, the fair market rental value attributable to the portion of the demised premises so occupied for the period of such occupancy) for each month of the period which would otherwise have constituted the balance of the term of this Lease, or, at Landlord's option, but in lieu of any other damages which may otherwise be recoverable by Landlord hereunder with respect to the loss of the benefit of Landlord's bargain, (z) a sum which at the time of such termination of this Lease or at the time of any such re-entry by Landlord, as the case may be, represents the then present value of the excess (employing a discount factor equal to the Treasury Rate, as such term is hereinafter defined), if any, of (i) the aggregate amount of the basic annual rent and the additional rent which would have been payable by Tenant (conclusively presuming the average monthly additional rent to be the same as were payable for the last twelve (12) calendar months, or if fewer than twelve (12) calendar months have then elapsed from the last Rent Commencement Date, all of the calendar months immediately preceding such termination or re-entry) for the period commencing with such earlier termination of this Lease or the date of any such re-entry, as the case may be, and ending with the date contemplated as the expiration date hereof if this Lease had not so terminated or if Landlord had not so re-entered the demised premises, over (ii) the aggregate fair market rental value of the demised premises for the same period. The failure or refusal of Landlord to re-let the demised premises or any part or parts thereof shall not release or affect Tenant's liability for damages. In computing such liquidated damages there shall be added to the said deficiency such actual out-of-pocket reasonable expenses as Landlord may reasonably incur in connection with re-re- letting, such as legal expenses, reasonable attorneys' attorneys fees, brokerage fees and for keeping the demised premises in good order or for preparing the same for re-letting. Any liquidated such damages payable pursuant to clause (y) of this Section 15.01 shall be paid in monthly installments by Tenant on the rent days specified in this Lease and any suit brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Landlord to collect the deficiency for any subsequent month by a similar proceeding. Landlord, at Landlord's option, may make such alterations, repairs, replacements and/or decorations in the demised premises as Landlord, in Landlord's reasonable sole judgment, considers advisable and necessary for the purpose of re-re- letting the demised premises; and the making of such alterations and/or decorations shall not operate or be construed to release Tenant from liability hereunder as aforesaid. Landlord shall in no event be liable in any way whatsoever for failure or refusal to re-let the demised premises or any parts thereof, or, in the event that the demised premises are re-let, for failure to collect the rent thereof under such re-letting.
15.02. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant's being evicted or dispossessed for any cause, or in the event of Landlord's obtaining possession of the demised premises, by reason of the violation by Tenant of any of the covenants, terms, provisions and conditions of this Lease or otherwise (beyond applicable notice and grace periods).
15.03. Suit or suits for the recovery of such damages, or any installments thereof, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Article 14 or under any provision of law, or had Landlord not re-entered the demised premises. Except as expressly set forth in Section 15.01 and Section 44.07 hereof, nothing herein contained shall be construed to limit or preclude recovery by Landlord or Tenant against the other of any sums or damages to which, in addition to the damages particularly provided herein, such party may lawfully recover.
15.04. In the event of a breach or threatened breach by either Landlord or Tenant of any of the covenants, agreements, terms, covenants or provisions and conditions hereof, the non-breaching party Landlord shall have the right to seek an of injunction and the right to invoke any remedy allowed at law or in equityequity as if re-entry, summary proceedings and the mention other remedies were not herein provided for. Mention in this Lease of any particular remedy remedy, shall not preclude Landlord or Tenant from any other remedy, at in law or in equity, except as expressly set forth . * (Landlord shall seek to relet the demised premises provided there is no other comparable space in Section 15.01 and Section 44.07 hereof and except the Building then available for consequential and punitive damage, which consequential and punitive damages Landlord and Tenant each hereby waive and release.leasing by Landlord
Appears in 1 contract
REMEDIES OF LANDLORD; WAIVER OF REDEMPTION. 15.01. In case of any such re-entry, expiration and/or dispossession dispossess by summary proceedings or other legal proceedings otherwise as set forth in Article 14 hereof (a) the rent shall become due thereupon and be paid up to the time of such re-entry, expiration entry dispossess and/or dispossessionexpiration, together with such expenses as Landlord may reasonably incur for legal expenses, reasonable attorneys' fees, brokerage feesbrokerage, and/or putting the demised premises into in good order, or for preparing the condition in which Tenant would have been obligated to deliver the demised premises on the fixed expiration date of the termsame for re-rental; (b) Landlord may re-let the demised premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms which may at Landlord's option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and may grant concessions or free rent; and/or (c) Tenant shall, in addition to the other rights and remedies Landlord has, or may claim by virtue of any other provision contained herein or by virtue of any statute or rule of law, shall also pay Landlord as liquidated damages (and not as a penalty) for the failure of Tenant to observe and perform said Tenant's covenants, agreements, terms, provisions and conditions covenants herein contained: (y) , any deficiency between the rent hereby reserved and/or covenanted to be paid and the net amount, if any, of the rents collected on account of the lease or leases of the demised premises (or, in the event that Landlord or any Affiliate of Landlord, at its or their option but without any obligation to do so, re-occupies any portion of the demised premises, the fair market rental value attributable to the portion of the demised premises so occupied for the period of such occupancy) for each month of the period which would otherwise have constituted the balance of the term of this Lease, or, at Landlord's option, but in lieu of any other damages which may otherwise be recoverable by Landlord hereunder with respect to the loss of the benefit of Landlord's bargain, (z) a sum which at the time of such termination of this Lease or at the time of any such re-entry by Landlord, as the case may be, represents the then present value of the excess (employing a discount factor equal to the Treasury Rate, as such term is hereinafter defined), if any, of (i) the aggregate amount of the basic annual rent and the additional rent which would have been payable by Tenant (conclusively presuming the average monthly additional rent to be the same as were payable for the last twelve (12) calendar months, or if fewer than twelve (12) calendar months have then elapsed from the last Rent Commencement Date, all of the calendar months immediately preceding such termination or re-entry) for the period commencing with such earlier termination of this Lease or the date of any such re-entry, as the case may be, and ending with the date contemplated as the expiration date hereof if this Lease had not so terminated or if Landlord had not so re-entered the demised premises, over (ii) the aggregate fair market rental value of the demised premises for the same period. The failure or refusal of Landlord to re-let the demised premises or any part or parts thereof shall not release or affect Tenant's liability for damages. In computing such liquidated damages there shall be added to the said deficiency such actual out-of-pocket expenses as Landlord may reasonably incur in connection with re-letting, such as legal expenses, reasonable attorneys' fees, brokerage fees and for keeping the demised premises in good order or for preparing the same for re-letting. Any liquidated such damages payable pursuant to clause (y) of this Section 15.01 shall be paid in monthly installments by Tenant on the rent days specified in this Lease and any suit brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Landlord to collect the deficiency for any subsequent month by a similar proceeding. Landlord, at Landlord's option, may make such alterations, repairs, replacements and/or decorations in the demised premises as Landlord, in Landlord's reasonable sole judgment, considers advisable and necessary for the purpose of re-letting the demised premises; and the making of such alterations and/or decorations shall not operate or be construed to release Tenant from liability hereunder as aforesaid. Landlord shall in no event be liable in any way whatsoever for failure or refusal to re-let the demised premises or any parts thereof, or, in the event that the demised premises are re-let, for failure to collect the rent thereof under such re-letting. In the event of a breach or threatened breach by Tenant of any of the covenants or provisions hereof, Landlord shall have the right of injunction and the right to invoke any remedy allowed at law or in equity as if re-entry, summary proceedings and other remedies were not herein provided for. Mention in this Lease of any particular remedy, shall not preclude Landlord from any other remedy, in law or in equity.
15.02. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant's Tenant being evicted or dispossessed for any cause, or in the event of Landlord's Landlord obtaining possession of the demised premises, by reason of the violation by Tenant of any of the covenants, terms, provisions covenants and conditions of this Lease or otherwise (beyond applicable notice and grace periods)otherwise.
15.03. Suit or suits for the recovery of such damages, or any installments thereof, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Article 14 or under any provision of law, or had Landlord not re-entered the demised premises. Except as expressly set forth in Section 15.01 and Section 44.07 hereof, nothing herein contained shall be construed to limit or preclude recovery by Landlord or Tenant against the other of any sums or damages to which, in addition to the damages particularly provided herein, such party may lawfully recover.
15.04. In the event of a breach or threatened breach by either Landlord or Tenant of any of the covenants, agreements, terms, provisions and conditions hereof, the non-breaching party shall have the right to seek an injunction and the right to invoke any remedy allowed at law or in equity, and the mention in this Lease of any particular remedy shall not preclude Landlord or Tenant from any other remedy, at law or in equity, except as expressly set forth in Section 15.01 and Section 44.07 hereof and except for consequential and punitive damage, which consequential and punitive damages Landlord and Tenant each hereby waive and release.
Appears in 1 contract
REMEDIES OF LANDLORD; WAIVER OF REDEMPTION. 15.0120.1. In case If this Lease is terminated under the provisions of Article 19 hereof, or if Landlord shall reenter the demised premises under the provisions of Article 19 hereof, or in the event of the termination of this Lease, or of reentry, by or under any such re-entry, expiration and/or dispossession by summary proceedings dispossess or other legal proceedings as set forth in Article 14 hereof proceeding or action or any provision of law by reason of default hereunder on the part of Tenant, (a) the fixed annual rent and additional rent shall become due thereupon and be paid up to the time of such re-entry, expiration dispossess and/or dispossessionexpiration, together with such expenses as Landlord may reasonably incur for legal expenses, reasonable attorneys' ’ fees, brokerage feesbrokerage, and/or putting the demised premises into in good order, or for preparing the condition in which Tenant would have been obligated to deliver the demised premises on the fixed expiration date of the termsame for rental; (b) Landlord may re-let the demised premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms terms, which may at Landlord's ’s option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and may grant concessions or free rent; and/or and (c) Tenant shall, in addition to the other rights and remedies Landlord has, or may claim by virtue of any other provision contained herein or by virtue of any statute or rule of law, shall also pay Landlord as liquidated damages (and not as a penalty) for the failure of Tenant to observe and perform said Tenant's covenants’s obligations herein contained either:
(i) a sum which, agreementsat the time of such expiration or re-entry, termsor at the time Landlord ceases to collect the amounts provided for in subsection (ii) below, provisions as the case may be, represents the then value (assuming a discount at a rate per annum equal to the interest rate then applicable to 7-year Federal Treasury Bonds) of the excess of the aggregate of the fixed annual rent and conditions additional rent Under Articles 4 and 5 hereof (conclusively presuming the average monthly additional rent under Articles 4 and 5 hereof to be the same as were payable for the last 12 calendar months, or if less than 12 calendar months have then elapsed since the Commencement Date, all of the calendar months immediately preceding such termination or reentry) which would have been payable by Tenant for the period commencing with such expiration or re-entry, as the case may be, and ending on the scheduled expiration date of the term of this Lease, over the aggregate fair market rental value of the demised premises for the same period (which sum is sometimes herein contained: called “the lump sum payment”); or
(yii) sums equal to any deficiency between the rent hereby reserved and/or covenanted to be paid and the net amount, if any, of the rents collected on account of the lease or leases of the demised premises (or, in the event that Landlord or any Affiliate of Landlord, at its or their option but without any obligation to do so, re-occupies any portion of the demised premises, the fair market rental value attributable to the portion of the demised premises so occupied for the period of such occupancy) for each month of the period which would otherwise have constituted the balance of the term of this Lease, or, at Landlord's option, but in lieu of any other damages which may otherwise be recoverable by Landlord hereunder with respect to the loss of the benefit of Landlord's bargain, (z) a sum which at the time of such termination of this Lease or at the time of any such re-entry by Landlord, as the case may be, represents the then present value of the excess (employing a discount factor equal to the Treasury Rate, as such term is hereinafter defined), if any, of (i) the aggregate amount of the basic annual rent and the additional rent which would have been payable by Tenant (conclusively presuming the average monthly additional rent to be the same as were payable for the last twelve (12) calendar months, or if fewer than twelve (12) calendar months have then elapsed from the last Rent Commencement Date, all of the calendar months immediately preceding such termination or re-entry) for the period commencing with such earlier termination of this Lease or the date of any such re-entry, as the case may be, and ending with the date contemplated as the expiration date hereof if this Lease had not so terminated or if Landlord had not so re-entered the demised premises, over (ii) the aggregate fair market rental value of the demised premises for the same period. The failure or refusal of Landlord to re-let the demised premises or any part or parts thereof shall not release or affect Tenant's liability for damages. In computing such liquidated damages there shall be added to the said deficiency such actual out-of-pocket expenses as Landlord may reasonably incur in connection with re-letting, such as legal expenses, reasonable attorneys' fees, brokerage fees and for keeping the demised premises in good order or for preparing the same re-letting. Any liquidated damages payable pursuant to clause (y) of this Section 15.01 shall be paid in monthly installments by Tenant on the rent days specified in this Lease and any suit or proceeding brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Landlord to collect the deficiency for any subsequent month by a similar proceedingsuit or proceeding or to thereafter initiate a proceeding to collect the lump sum payment. In computing the damages payable under clause (i) or clause (ii) of the immediately preceding sentence, there shall be added to the lump sum payment or deficiency, as the case may be, such expenses as Landlord may incur or pay in connection with terminating this Lease or re-entering the demised premises and in securing possession thereof, including, without limitation, reasonable attorneys’ fees and disbursements, brokerage, and for keeping the demised premises in good order or for preparing the same for re-letting. In no event shall Tenant be entitled to receive the excess, if any, of any rentals from re-letting over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages pursuant to this Article 20 to a credit in respect of rentals from re-letting except to the extent that such rentals are actually received by Landlord. No such re-letting shall constitute or be deemed to constitute a surrender or the acceptance of a surrender. Landlord shall not be liable in any way whatsoever for its failure or refusal to relet the demised premises or any part thereof, or if the demised premises or any part thereof are relet, for its failure to collect the rent under such reletting, and no such refusal or failure to relet or failure to collect rent shall release or affect Tenant’s liability for damages or otherwise under this Lease. Landlord, at Landlord's ’s option, may make such alterations, repairs, replacements and/or decorations in the demised premises as Landlord, in Landlord's reasonable ’s sole judgment, considers advisable and necessary for the purpose of re-letting the demised premises; and the making of such alterations and/or decorations shall not operate or be construed to release Tenant from liability hereunder as aforesaid. Landlord shall in no event be liable in any way whatsoever for failure or refusal to re-let the demised premises or any parts thereof, or, in the event that the demised premises are re-let, for failure to collect the rent thereof under such re-letting.
15.0220.2. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant's Tenant being evicted or dispossessed for any cause, or in the event of Landlord's Landlord obtaining possession of the demised premises, by reason of the violation by Tenant of any of the covenants, terms, provisions covenants and conditions of this Lease or otherwise (beyond applicable notice and grace periods)otherwise.
15.0320.3. If Tenant is in arrears in payment of fixed annual rent or additional rent, Tenant waives Tenant’s right, if any, to designate the items to which any payments made by Tenant are to be credited, and Tenant agrees that Landlord may apply any payments made by Tenant to such items as Landlord sees fit, irrespective of and notwithstanding any designation or request by Tenant as to the items which any such payments shall be credited.
20.4. Suit or suits for the recovery of such damages, or any installments thereof, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Article 14 or under any provision of law19 hereof, or had Landlord not re-entered reentered the demised premises. Except as expressly set forth in Section 15.01 and Section 44.07 hereof, nothing Nothing herein contained shall be construed to limit or preclude recovery by Landlord or against Tenant against the other of any sums or damages to which, in addition to the damages particularly provided hereinabove, Landlord may lawfully be entitled by reason of any default hereunder on the part of Tenant. Nothing herein contained shall be construed to limit or prejudice the right of Landlord to prove for and obtain as damages by reason of the termination of this Lease or reentry on the demised premises for the default of Tenant under this Lease an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such party may lawfully recover.
15.04. In the event of a breach damages are to be proved whether or threatened breach by either Landlord or Tenant of not such amount be greater than any of the covenantssums referred to in Section 20.1 hereof.
20.5. In addition, agreements, terms, if this Lease is terminated under the provisions and conditions of Article 19 hereof, or if Landlord shall, reenter the non-breaching party demised premises under the provisions of Article 19 hereof, Tenant agrees that:
(a) the demised premises then shall be in the condition in which Tenant has agreed to surrender the same to Landlord at the expiration of the term hereof;
(b) Tenant shall have performed prior to any such termination any covenant of Tenant contained in this Lease for the right making of any Alterations or for restoring or rebuilding the demised premises or the Building, or any part thereof; and
(c) for the breach of any covenant of Tenant set forth above in this Section 20.4, Landlord shall be entitled immediately, without notice or other action by Landlord, to seek recover, and Tenant shall pay, as and for liquidated damages therefor, the cost of performing such covenant (as estimated by an injunction independent contractor selected by Landlord).
20.6. In addition to any other remedies Landlord may have under this Lease, and without reducing or adversely affecting any of Landlord’s rights and remedies under Article 19 hereof, if any fixed annual rent, additional rent or damages payable hereunder by Tenant to Landlord are not paid within five (5) days after the right to invoke any remedy allowed due date thereof, the same shall bear interest at law the rate of one and one half (1- 1/2%) percent per month or in equitythe maximum rate permitted by law, whichever is less, from the due date thereof until paid, and the mention amount of such interest shall be additional rent hereunder.
20.7. Mention in this Lease of any particular remedy shall not preclude Landlord or Tenant from any other remedy, at in law or in equity, except as expressly set forth in Section 15.01 and Section 44.07 hereof and except for consequential and punitive damage, which consequential and punitive damages Landlord and Tenant each hereby waive and release.
Appears in 1 contract
REMEDIES OF LANDLORD; WAIVER OF REDEMPTION. 15.01. 20.1 In case of any such re-entry, expiration and/or dispossession dispossess by summary proceedings or other legal proceedings otherwise as set forth in Article 14 19 hereof (a) the rent shall become due thereupon and be paid up to the time of such re-entry, expiration dispossess and/or dispossessionexpiration, together with such expenses as Landlord may reasonably incur for legal expenses, reasonable attorneys' attorneys fees, brokerage feesbrokerage, and/or and putting the demised premises into in good order and/or for preparing the condition in which Tenant would have been obligated to deliver the demised premises on the fixed expiration date of the termsame for re-rental; (b) Landlord may re-let the demised premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms terms, which may at Landlord's option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and may grant concessions or free rent; and/or and (c) Tenant shall, in addition to the other rights and remedies Landlord has, or may claim by virtue of any other provision contained herein or by virtue of any statute or rule of law, shall also pay Landlord as liquidated damages (and not as a penalty) for the failure of Tenant to observe and perform said Tenant's covenants, agreements, terms, provisions and conditions covenants herein contained: (y) , any deficiency between the rent hereby reserved and/or covenanted to be paid and the net amount, if any, of the rents collected on account of the lease or leases of the demised premises (or, in the event that Landlord or any Affiliate of Landlord, at its or their option but without any obligation to do so, re-occupies any portion of the demised premises, the fair market rental value attributable to the portion of the demised premises so occupied for the period of such occupancy) for each month of the period which would otherwise have constituted the balance of the term of this Lease, or, at Landlord's option, but in lieu of any other damages which may otherwise be recoverable by Landlord hereunder with respect to the loss of the benefit of Landlord's bargain, (z) a sum which at the time of such termination of this Lease or at the time of any such re-entry by Landlord, as the case may be, represents the then present value of the excess (employing a discount factor equal to the Treasury Rate, as such term is hereinafter defined), if any, of (i) the aggregate amount of the basic annual rent and the additional rent which would have been payable by Tenant (conclusively presuming the average monthly additional rent to be the same as were payable for the last twelve (12) calendar months, or if fewer than twelve (12) calendar months have then elapsed from the last Rent Commencement Date, all of the calendar months immediately preceding such termination or re-entry) for the period commencing with such earlier termination of this Lease or the date of any such re-entry, as the case may be, and ending with the date contemplated as the expiration date hereof if this Lease had not so terminated or if Landlord had not so re-entered the demised premises, over (ii) the aggregate fair market rental value of the demised premises for the same period. The failure or refusal of Landlord to re-let the demised premises or any part or parts thereof shall not release or affect Tenant's liability for damages. In computing such liquidated damages there shall be added to the said deficiency such actual out-of-pocket expenses as Landlord may reasonably incur in connection with re-letting, such as legal expenses, reasonable attorneys' fees', brokerage fees and for keeping the demised premises in good order or for preparing the same for re-letting. Any liquidated such damages payable pursuant to clause (y) of this Section 15.01 shall be paid in monthly installments by Tenant on the rent days specified in this Lease and any suit brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Landlord to collect the deficiency for any subsequent month by a similar proceeding. Landlord, at Landlord's option, may make such alterations, repairs, replacements and/or decorations in the demised premises as Landlord, in Landlord's reasonable sole judgment, considers advisable and necessary for the purpose of re-letting the demised premises; and the making of such alterations and/or decorations shall not operate or be construed to release Tenant from liability hereunder as aforesaid. Landlord shall in no event be liable in any way whatsoever for failure or refusal to re-let the demised premises or any parts thereof, or, in the event that the demised premises are re-let, for failure to collect the rent thereof hereof under such re-letting. In the event of a breach or threatened breach by Tenant of any of the covenants or provisions hereof, Landlord shall have the right of injunction and the right to invoke any remedy allowed at law or in equity as if re-entry, summary proceedings and other remedies were not herein provided for. Mention in this Lease of any particular remedy shall not preclude Landlord from any other remedy, in law or in equity.
15.02. 20.2 Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant's Tenant being evicted or dispossessed for any cause, or in the event of Landlord's Landlord obtaining possession of the demised premises, by reason of the violation by Tenant of any of the covenants, terms, provisions covenants and conditions of this Lease or otherwise (beyond applicable notice and grace periods)otherwise.
15.03. Suit or suits for the recovery of such damages, or any installments thereof, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Article 14 or under any provision of law, or had Landlord not re-entered the demised premises. Except as expressly set forth in Section 15.01 and Section 44.07 hereof, nothing herein contained shall be construed to limit or preclude recovery by Landlord or Tenant against the other of any sums or damages to which, in addition to the damages particularly provided herein, such party may lawfully recover.
15.04. In the event of a breach or threatened breach by either Landlord or Tenant of any of the covenants, agreements, terms, provisions and conditions hereof, the non-breaching party shall have the right to seek an injunction and the right to invoke any remedy allowed at law or in equity, and the mention in this Lease of any particular remedy shall not preclude Landlord or Tenant from any other remedy, at law or in equity, except as expressly set forth in Section 15.01 and Section 44.07 hereof and except for consequential and punitive damage, which consequential and punitive damages Landlord and Tenant each hereby waive and release.
Appears in 1 contract
REMEDIES OF LANDLORD; WAIVER OF REDEMPTION. 15.0120.1. In case If this Lease is terminated under the provisions of Article 19 hereof, or if Landlord shall reenter the demised premises under the provisions of Article 19 hereof, or in the event of the termination of this Lease, or of reentry, by or under any such re-entry, expiration and/or dispossession by summary proceedings dispossess or other legal proceedings as set forth in Article 14 hereof proceeding or action or any provision of law by reason of default hereunder on the part of Tenant, (a) the fixed annual rent and additional rent shall become due thereupon and be paid up to the time of such re-entry, expiration dispossess and/or dispossessionexpiration, together with such expenses as Landlord may reasonably incur for legal expenses, reasonable attorneys' ’ fees, brokerage feesbrokerage, and/or putting the demised premises into in good order, or for preparing the condition in which Tenant would have been obligated to deliver the demised premises on the fixed expiration date of the termsame for rental; (b) Landlord may re-let the demised premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms terms, which may at Landlord's ’s option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and may grant concessions or free rent; and/or and (c) Tenant shall, in addition to the other rights and remedies Landlord has, or may claim by virtue of any other provision contained herein or by virtue of any statute or rule of law, shall also pay Landlord as liquidated damages (and not as a penalty) for the failure of Tenant to observe and perform said Tenant's covenants’s obligations herein contained either:
(i) a sum which, agreementsat the time of such expiration or re-entry, termsor at the time Landlord ceases to collect the amounts provided for in subsection (ii) below, provisions as the case may be, represents the then value (assuming a discount at a rate per annum equal to the interest rate then applicable to 7-year Federal Treasury Bonds) of the excess of the aggregate of the fixed annual rent and conditions additional rent Under Articles 4 and 5 hereof (conclusively presuming the average monthly additional rent under Articles 4 and 5 hereof to be the same as were payable for the last 12 calendar months, or if less than 12 calendar months have then elapsed since the Commencement Date, all of the calendar months immediately preceding such termination or reentry) which would have been payable by Tenant for the period commencing with such expiration or re-entry, as the case may be, and ending on the scheduled expiration date of the term of this Lease, over the aggregate fair market rental value of the demised premises for the same period (which sum is sometimes herein contained: called “the lump sum payment“); or
(yii) sums equal to any deficiency between the rent hereby reserved and/or covenanted to be paid and the net amount, if any, of the rents collected on account of the lease or leases of the demised premises (or, in the event that Landlord or any Affiliate of Landlord, at its or their option but without any obligation to do so, re-occupies any portion of the demised premises, the fair market rental value attributable to the portion of the demised premises so occupied for the period of such occupancy) for each month of the period which would otherwise have constituted the balance of the term of this Lease, or, at Landlord's option, but in lieu of any other damages which may otherwise be recoverable by Landlord hereunder with respect to the loss of the benefit of Landlord's bargain, (z) a sum which at the time of such termination of this Lease or at the time of any such re-entry by Landlord, as the case may be, represents the then present value of the excess (employing a discount factor equal to the Treasury Rate, as such term is hereinafter defined), if any, of (i) the aggregate amount of the basic annual rent and the additional rent which would have been payable by Tenant (conclusively presuming the average monthly additional rent to be the same as were payable for the last twelve (12) calendar months, or if fewer than twelve (12) calendar months have then elapsed from the last Rent Commencement Date, all of the calendar months immediately preceding such termination or re-entry) for the period commencing with such earlier termination of this Lease or the date of any such re-entry, as the case may be, and ending with the date contemplated as the expiration date hereof if this Lease had not so terminated or if Landlord had not so re-entered the demised premises, over (ii) the aggregate fair market rental value of the demised premises for the same period. The failure or refusal of Landlord to re-let the demised premises or any part or parts thereof shall not release or affect Tenant's liability for damages. In computing such liquidated damages there shall be added to the said deficiency such actual out-of-pocket expenses as Landlord may reasonably incur in connection with re-letting, such as legal expenses, reasonable attorneys' fees, brokerage fees and for keeping the demised premises in good order or for preparing the same re-letting. Any liquidated damages payable pursuant to clause (y) of this Section 15.01 shall be paid in monthly installments by Tenant on the rent days specified in this Lease and any suit or proceeding brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Landlord to collect the deficiency for any subsequent month by a similar proceedingsuit or proceeding or to thereafter initiate a proceeding to collect the lump sum payment. In computing the damages payable under clause (i) or clause (ii) of the immediately preceding sentence, there shall be added to the lump sum payment or deficiency, as the case may be, such expenses as Landlord may incur or pay in connection with terminating this Lease or re-entering the demised premises and in securing possession thereof, including, without limitation, reasonable attorneys’ fees and disbursements, brokerage, and for keeping the demised premises in good order or for preparing the same for re-letting. In no event shall Tenant be entitled to receive the excess, if any, of any rentals from re-letting over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages pursuant to this Article 20 to a credit in respect of rentals from re-letting except to the extent that such rentals are actually received by Landlord. No such re-letting shall constitute or be deemed to constitute a surrender or the acceptance of a surrender. Landlord shall not be liable in any way whatsoever for its failure or refusal to relet the demised premises or any part thereof, or if the demised premises or any part thereof are relet, for its failure to collect the rent under such reletting, and no such refusal or failure to relet or failure to collect rent shall release or affect Tenant’s liability for damages or otherwise under this Lease. Landlord, at Landlord's ’s option, may make such alterations, repairs, replacements and/or decorations in the demised premises as Landlord, in Landlord's reasonable ’s sole judgment, considers advisable and necessary for the purpose of re-letting the demised premises; and the making of such alterations and/or decorations shall not operate or be construed to release Tenant from liability hereunder as aforesaid. Landlord shall in no event be liable in any way whatsoever for failure or refusal to re-let the demised premises or any parts thereof, or, in the event that the demised premises are re-let, for failure to collect the rent thereof under such re-letting.
15.0220.2. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant's Tenant being evicted or dispossessed for any cause, or in the event of Landlord's Landlord obtaining possession of the demised premises, by reason of the violation by Tenant of any of the covenants, terms, provisions covenants and conditions of this Lease or otherwise (beyond applicable notice and grace periods)otherwise.
15.0320.3. If Tenant is in arrears in payment of fixed annual rent or additional rent, Tenant waives Tenant’s right, if any, to designate the items to which any payments made by Tenant are to be credited, and Tenant agrees that Landlord may apply any payments made by Tenant to such items as Landlord sees fit, irrespective of and notwithstanding any designation or request by Tenant as to the items which any such payments shall be credited.
20.4. Suit or suits for the recovery of such damages, or any installments thereof, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Article 14 or under any provision of law19 hereof, or had Landlord not re-entered reentered the demised premises. Except as expressly set forth in Section 15.01 and Section 44.07 hereof, nothing Nothing herein contained shall be construed to limit or preclude recovery by Landlord or against Tenant against the other of any sums or damages to which, in addition to the damages particularly provided hereinabove, Landlord may lawfully be entitled by reason of any default hereunder on the part of Tenant. Nothing herein contained shall be construed to limit or prejudice the right of Landlord to prove for and obtain as damages by reason of the termination of this Lease or reentry on the demised premises for the default of Tenant under this Lease an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such party may lawfully recover.
15.04. In the event of a breach damages are to be proved whether or threatened breach by either Landlord or Tenant of not such amount be greater than any of the covenantssums referred to in Section 20.1 hereof.
20.5. In addition, agreements, terms, if this Lease is terminated under the provisions and conditions of Article 19 hereof, or if Landlord shall, reenter the non-breaching party demised premises under the provisions of Article 19 hereof, Tenant agrees that:
(a) the demised premises then shall be in the condition in which Tenant has agreed to surrender the same to Landlord at the expiration of the term hereof;
(b) Tenant shall have performed prior to any such termination any covenant of Tenant contained in this Lease for the right making of any Alterations or for restoring or rebuilding the demised premises or the Building, or any part thereof; and
(c) for the breach of any covenant of Tenant set forth above in this Section 20.4, Landlord shall be entitled immediately, without notice or other action by Landlord, to seek recover, and Tenant shall pay, as and for liquidated damages therefor, the cost of performing such covenant (as estimated by an injunction independent contractor selected by Landlord).
20.6. In addition to any other remedies Landlord may have under this Lease, and without reducing or adversely affecting any of Landlord’s rights and remedies under Article 19 hereof, if any fixed annual rent, additional rent or damages payable hereunder by Tenant to Landlord are not paid within five (5) days after the right to invoke any remedy allowed due date thereof, the same shall bear interest at law the rate of one and one-half (1½%) percent per month or in equitythe maximum rate permitted by law, whichever is less, from the due date thereof until paid, and the mention amount of such interest shall be additional rent hereunder. Notwithstanding anything to the contrary set forth in the immediately preceding sentence, interest shall not be payable by Tenant with respect to late payments by Tenant until the first time that Landlord shall have given notice to Tenant of a late payment (it being understood and agreed that a xxxx or statement that includes a specific reference to a past due amount shall satisfy such notice requirement) and Tenant shall have failed to make such payment within five (5) days after the giving of such notice by Landlord. Thereafter, notice by Landlord shall not be a prerequisite to Tenant’s obligation to pay interest as set forth in the first sentence of this Section 20.6 until Tenant shall have made all payments due under this Lease within five (5) days after the due date therefor for a period of twelve (12) consecutive months, following which, the provisions of the immediately preceding sentence and this sentence shall again apply. For the purposes of this Section 20.5, a rent xxxx sent by first class mail, to the address to which notices are to be given under this Lease, shall be deemed a proper demand for the payment of the amounts set forth therein (but nothing contained herein shall be deemed to require Landlord to send any rent xxxx or otherwise make any demand for the payment of rent except in those cases, if any, explicitly provided for in this Lease).
20.7. Mention in this Lease of any particular remedy shall not preclude Landlord or Tenant from any other remedy, at in law or in equity, except as expressly set forth in Section 15.01 and Section 44.07 hereof and except for consequential and punitive damage, which consequential and punitive damages Landlord and Tenant each hereby waive and release.
Appears in 1 contract
Samples: Lease Agreement (Blackrock Inc /Ny)
REMEDIES OF LANDLORD; WAIVER OF REDEMPTION. 15.01. (a) In case of any such re-entryreentry, expiration and/or dispossession dispossess by summary proceedings or other legal proceedings otherwise as set forth in Article 14 hereof (ai) the Fixed Rent and additional rent shall become due thereupon and be paid up to the time of such re-entryreentry, expiration dispossess and/or dispossession, together with such expenses as Landlord may reasonably incur for legal expenses, reasonable attorneys' fees, brokerage fees, and/or putting the demised premises into the condition in which Tenant would have been obligated to deliver the demised premises on the fixed expiration date of the termexpiration; (bii) Landlord may re-let the demised premises Demised Premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms terms, which may at Landlord's option be less than or exceed the period which would otherwise have constituted the balance of the term Term of this Lease and may grant concessions or free rent; and/or and (ciii) Tenant shall, in addition to the other rights and remedies Landlord has, or may claim by virtue of any other provision contained herein or by virtue of any statute or rule of law, shall also pay Landlord as liquidated damages (and not as a penalty) for the failure of Tenant to observe and perform said Tenant's covenants, agreements, terms, provisions and conditions covenants herein contained: , either:
(A) a sum payable on demand which at the time of such expiration, termination, re-entry and/or dispossess represents the excess, if any, of (x) the Fixed Rent and additional rent which would have been payable by Tenant for the period commencing with such earlier expiration, termination, re-entry and/or dispossess or, if later, the date through which monthly deficiencies have been paid in full pursuant to (B) below, and ending with the date of expiration of the Term of this Lease had this Lease not been so terminated or had Landlord not so reentered the Demised Premises or dispossessed Tenant, over (y) the aggregate fair rental value of the Demised Premises for the same period, such difference being discounted to the then present value at the same rate per annum as interest on United States Treasury Bonds or Notes of maturity equal to the unexpired Term, or
(B) until such time as Landlord may elect to and shall recover damages under (A) above, any deficiency between the Fixed Rent and additional rent hereby reserved and/or covenanted to be paid and the net amount, if any, of the rents collected on account of the lease or leases of the demised premises Demised Premises (or, in allocated on a square foot basis if the event that Landlord Demised Premises or any Affiliate of Landlord, at its or their option but without part thereof shall be relet in combination with any obligation to do so, re-occupies any portion of the demised premises, the fair market rental value attributable to the portion of the demised premises so occupied for the period of such occupancyother space) for each month of the period which would otherwise have constituted the balance of the term of this Lease, or, at Landlord's option, but in lieu of any other damages which may otherwise be recoverable by Landlord hereunder with respect to the loss of the benefit of Landlord's bargain, (z) a sum which at the time of such termination Term of this Lease or at the time of (without regard to any such re-entry by Landlord, as the case may be, represents the then present value of the excess (employing a discount factor equal to the Treasury Rate, as such term is hereinafter definedunexercised renewals thereof), if any, of (i) the aggregate amount of the basic annual rent and the additional rent which would have been payable by Tenant (conclusively presuming the average monthly additional rent to be the same as were payable for the last twelve (12) calendar months, or if fewer than twelve (12) calendar months have then elapsed from the last Rent Commencement Date, all of the calendar months immediately preceding such termination or re-entry) for the period commencing with such earlier termination of this Lease or the date of any such re-entry, as the case may be, and ending with the date contemplated as the expiration date hereof if this Lease had not so terminated or if Landlord had not so re-entered the demised premises, over (ii) the aggregate fair market rental value of the demised premises for the same period. The failure or refusal inability (but not the unreasonable refusal) of Landlord to re-let relet the demised premises Demised Premises or any part or parts thereof shall not release or affect Tenant's liability for damages. In computing such liquidated damages there shall be added to the said deficiency deficiency, but only to the extent actually incurred, such actual out-of-pocket normal, customary and reasonable expenses as Landlord may reasonably incur in connection with re-lettingreletting, such as legal expenses, reasonable attorneys' fees, brokerage fees commissions and reasonable expenses for keeping the demised premises Demised Premises in good order or for preparing the same re-lettingfor reletting. Any such liquidated damages payable pursuant to clause (y) of this Section 15.01 shall be paid in monthly installments by Tenant on the rent days specified in this Lease and any suit brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Landlord to collect the deficiency for any subsequent month by a similar proceeding. Landlord.
(b) For the purposes of subparagraph (a) of this Section 15.01, (a) additional rent shall be presumed to be the same as payable for the calendar year immediately preceding such earlier expiration, termination, re-entry or dispossess; and (b) if the Demised Premises or any part thereof be re-let by Landlord for the unexpired Term of this Lease, or any part thereof, in a bona fide, arms length transaction, before exercise by Landlord of its option under said clause (A) hereof, the amount of rent reserved upon such re-letting shall be prima facie the aggregate fair rental value of the Demised Premises for purposes of such clause (A) thereof.
(c) In case of any reentry, expiration and/or dispossess by summary proceedings or otherwise as set forth in Articles 13 and 14, provided Tenant shall surrender possession of the Demised Premises to Landlord and confirm its obligations hereunder, Landlord shall use reasonable efforts to relet the Demised Premises or any part or parts thereof either in the name of Landlord or otherwise, for a term or terms that may at Landlord's optionoption be less than or exceed the period which would otherwise constitute the balance of the Term of this Lease and may grant concessions or free rent. For purposes of this paragraph (c) and Section 13.02, may such refusal to relet shall not be deemed to be unreasonable if Landlord does not relet for any one or more of the reasons specified in clause (A) or (C) of subparagraph (c)(ii) of Section 10.01. In no event shall Landlord be expected to make such any effort to relet the Demised Premises if there is in the Building comparable space which is vacant or will be vacant within six (6) months from the date of repossession of the Demised Premises. The inability (but not the unreasonable refusal) of Landlord to relet the Demised Premises or any part or parts thereof shall not release or affect Tenant's liability for damages. Tenant's liability for the liquidated damages described in the preceding paragraph shall include the cost of only those alterations, repairs, replacements and/or and decorations in the demised premises Demised Premises as Landlord, Landlord in Landlord's reasonable judgment, considers fact makes and are advisable and reasonably necessary for the purpose of re-letting reletting the demised premisesDemised Premises and, in no event, shall the cost of such alterations and decorations for which Tenant shall be liable exceed the value of Landlord's then standard work letter or allowance; and the making of such alterations and/or and decorations shall not operate or be construed to release Tenant from liability hereunder as aforesaid. Landlord shall in no event not be liable in any way whatsoever for failure or refusal to re-let the demised premises or any parts thereof, orliable, in the event that the demised premises Demised Premises are re-letrelet, for failure inability to collect the rent thereof under such re-lettingreletting.
Section 15.02. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant's being evicted or dispossessed for any cause, or in the event of Landlord's obtaining possession of the demised premises, by reason of the violation by Tenant of any of the covenants, terms, provisions and conditions of this Lease or otherwise (beyond applicable notice and grace periods).
15.03. Suit or suits for the recovery of such damages, or any installments thereof, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Article 14 or under any provision of law, or had Landlord not re-entered the demised premises. Except as expressly set forth in Section 15.01 and Section 44.07 hereof, nothing herein contained shall be construed to limit or preclude recovery by Landlord or Tenant against the other of any sums or damages to which, in addition to the damages particularly provided herein, such party may lawfully recover.
15.04. In the event of a breach or threatened breach by either Landlord or Tenant of any of the covenants, agreements, terms, covenants or provisions and conditions hereof, Landlord, in the non-breaching party case of a breach or threatened breach by Tenant, and Tenant, in the case of a breach or threatened breach by Landlord, shall have the right to seek an of injunction and the right to invoke any remedy allowed at law or in equity, and the mention equity in addition to any other remedies herein provided for. Mention in this Lease of any particular remedy shall not preclude Landlord or Tenant from any other remedy, at in law or in equity.
Section 15.03. Tenant does hereby expressly waive any and all rights, except so far as expressly set forth in Section 15.01 and Section 44.07 hereof and except for consequential and punitive damageis permitted by law, which consequential Tenant might otherwise have to (a) redeem the Demised Premises or any interest therein, (b) re-enter or repossess the Demised Premises, or (c) restore the operation of this Lease, after Tenant shall have been dispossessed by a judgment or by a warrant of any court or judge, or after any termination of this Lease, whether such dispossess, re-entry by Landlord or termination shall be by operation of law or pursuant to the provisions of this Lease. The word "reenter", "re-entry" and punitive damages Landlord and Tenant each hereby waive and release"re-entered" as used in this Lease shall not be deemed to be restricted to their technical legal meanings.
Appears in 1 contract
REMEDIES OF LANDLORD; WAIVER OF REDEMPTION. 15.01. In case of any such re-entry, expiration and/or dispossession dispossess by summary proceedings or other legal proceedings otherwise as set forth in Article 14 hereof (a) the rent shall become due thereupon and be paid up to the time of such re-entry, expiration dispossess and/or dispossessionexpiration, together with such expenses as Landlord may reasonably incur for legal expenses, reasonable attorneys' fees, brokerage feesbrokerage, and/or putting the demised premises into in good order, or for preparing the condition in which Tenant would have been obligated to deliver the demised premises on the fixed expiration date of the termsame for re-- rental; (b) Landlord Land1o~d may re-let the demised premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms terms, which may at Landlord's option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and may grant concessions or free rent; and/or (cC) Tenant shall, in addition to the other rights and remedies Landlord has, or may claim by virtue of any other provision contained herein or by virtue of any statute or rule of law, shall also pay Landlord as liquidated damages (and not as a penalty) for the failure of Tenant to observe and perform said Tenant's covenants, agreements, terms, provisions and conditions covenants herein contained: (y) , any deficiency between the rent hereby reserved and/or covenanted to be paid and the net amount, if any, of the rents collected on account of the lease or leases of the demised premises (or, in the event that Landlord or any Affiliate of Landlord, at its or their option but without any obligation to do so, re-occupies any portion of the demised premises, the fair market rental value attributable to the portion of the demised premises so occupied for the period of such occupancy) for each month of the period which would otherwise have constituted the balance of the term of this Lease, or, at Landlord's option, but in lieu of any other damages which may otherwise be recoverable by Landlord hereunder with respect to the loss of the benefit of Landlord's bargain, (z) a sum which at the time of such termination of this Lease or at the time of any such re-entry by Landlord, as the case may be, represents the then present value of the excess (employing a discount factor equal to the Treasury Rate, as such term is hereinafter defined), if any, of (i) the aggregate amount of the basic annual rent and the additional rent which would have been payable by Tenant (conclusively presuming the average monthly additional rent to be the same as were payable for the last twelve (12) calendar months, or if fewer than twelve (12) calendar months have then elapsed from the last Rent Commencement Date, all of the calendar months immediately preceding such termination or re-entry) for the period commencing with such earlier termination of this Lease or the date of any such re-entry, as the case may be, and ending with the date contemplated as the expiration date hereof if this Lease had not so terminated or if Landlord had not so re-entered the demised premises, over (ii) the aggregate fair market rental value of the demised premises for the same period. The failure or refusal of Landlord to re-let the demised premises or any part or parts thereof shall not release or affect Tenant's liability for damages. In computing such liquidated damages there shall be added to the said deficiency such actual out-of-pocket expenses as Landlord may reasonably incur in connection with re---letting, such as legal expenses, reasonable attorneys' fees, brokerage fees and for keeping the demised premises in good order or for preparing the same for re-letting. Any such liquidated damages payable pursuant to clause (y) of this Section 15.01 shall be paid in monthly installments by Tenant on the rent days specified in this Lease and any suit brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Landlord to collect the deficiency for any subsequent month by a similar proceeding. Landlord, at Landlord's option, may make such alterations, repairs, replacements and/or decorations in the demised premises as Landlord, in Landlord's reasonable sole judgment, considers advisable and necessary for the purpose of re---letting the demised premises; and the making of such alterations and/or decorations shall not operate or be construed to release Tenant from liability hereunder as aforesaid. Landlord shall in no event be liable liable, in any way whatsoever for the failure or refusal to re---let the demised premises or any parts thereof, or, in the event that the demised premises are re---let, for failure to collect the rent thereof under such re--letting. In the event of a breach by Tenant of any of the covenants or provisions hereof, Landlord shall have the right to invoke any remedy allowed at law or in equity as if re-lettingentry, summary proceedings and other remedies were not herein provided for. Mention in this Lease of any particular remedy, shall not preclude Landlord from any other remedy, in law or in equity. Landlord shall take all reasonable steps to mitigate damages in the event of default by Tenant.
15.02. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant's Tenant being evicted or dispossessed dispossessed. for any cause, or in the event of Landlord's Landlord obtaining possession of the demised premises, by reason of the violation by Tenant of any of the covenants, terms, provisions covenants and conditions of this Lease or otherwise (beyond applicable notice and grace periods)otherwise.
15.03. Suit or suits for the recovery of such damages, or any installments thereof, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Article 14 or under any provision of law, or had Landlord not re-entered the demised premises. Except as expressly set forth in Section 15.01 and Section 44.07 hereof, nothing herein contained shall be construed to limit or preclude recovery by Landlord or Tenant against the other of any sums or damages to which, in addition to the damages particularly provided herein, such party may lawfully recover.
15.04. In the event of a breach or threatened breach by either Landlord or Tenant of any of the covenants, agreements, terms, provisions and conditions hereof, the non-breaching party shall have the right to seek an injunction and the right to invoke any remedy allowed at law or in equity, and the mention in this Lease of any particular remedy shall not preclude Landlord or Tenant from any other remedy, at law or in equity, except as expressly set forth in Section 15.01 and Section 44.07 hereof and except for consequential and punitive damage, which consequential and punitive damages Landlord and Tenant each hereby waive and release.
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REMEDIES OF LANDLORD; WAIVER OF REDEMPTION. 15.01. 15.01 In case of any such re-entry, expiration and/or dispossession dispossess by summary proceedings or other legal proceedings of otherwise, as set forth in sin Article 14 hereof hereof, (a) the rent shall become due thereupon and be paid up to the time of such re-entry, expiration dispossess and/or dispossessionexpiration, together with such expenses as Landlord may reasonably incur for legal expenses, reasonable attorneys' , fees, brokerage feesbrokerage, and/or putting the demised premises into Demised Premises in good order, or for preparing the condition in which Tenant would have been obligated to deliver the demised premises on the fixed expiration date of the termsame for re-rental; (b) Landlord may re-let the demised premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms terms, which may at Landlord's option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and may grant concessions or free rent; and/or (c) Tenant shall, in addition to the other rights and remedies Landlord has, or may claim by virtue of any other provision contained herein or by virtue of any statute or rule of law, shall also pay Landlord as liquidated damages (and not as a penalty) for the failure of Tenant to observe and perform said Tenant's covenants, agreements, terms, provisions and conditions covenants herein contained: (y) , any deficiency between the rent hereby reserved and/or covenanted to be paid and the net amount, if any, of the rents collected on account of the lease or leases of the demised premises (or, in the event that Landlord or any Affiliate of Landlord, at its or their option but without any obligation to do so, re-occupies any portion of the demised premises, the fair market rental value attributable to the portion of the demised premises so occupied for the period of such occupancy) Demised Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease, or, at Landlord's option, but in lieu of any other damages which may otherwise be recoverable by Landlord hereunder with respect to the loss of the benefit of Landlord's bargain, (z) a sum which at the time of such termination of this Lease or at the time of any such re-entry by Landlord, as the case may be, represents the then present value of the excess (employing a discount factor equal to the Treasury Rate, as such term is hereinafter defined), if any, of (i) the aggregate amount of the basic annual rent and the additional rent which would have been payable by Tenant (conclusively presuming the average monthly additional rent to be the same as were payable for the last twelve (12) calendar months, or if fewer than twelve (12) calendar months have then elapsed from the last Rent Commencement Date, all of the calendar months immediately preceding such termination or re-entry) for the period commencing with such earlier termination of this Lease or the date of any such re-entry, as the case may be, and ending with the date contemplated as the expiration date hereof if this Lease had not so terminated or if Landlord had not so re-entered the demised premises, over (ii) the aggregate fair market rental value of the demised premises for the same period. The failure or refusal of Landlord to re-let the demised premises or any part or of parts thereof shall not release or affect Tenant's liability for damages. In computing such liquidated damages there shall be added to the said deficiency such actual out-of-pocket expenses as Landlord may reasonably incur in connection with re-letting, such as legal expenses, reasonable attorneys' , fees, brokerage fees and for keeping the demised premises Demised Premises in good order or for preparing the same for re-letting. Any such liquidated damages payable pursuant to clause (y) of this Section 15.01 shall be paid in monthly installments by Tenant on the rent days specified in this Lease and any suit brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Landlord to collect the deficiency for any subsequent month by a similar proceeding. Landlord, Landlord at Landlord's option, option may make such alterations, repairs, replacements and/or decorations in the demised premises Demises Premises as Landlord, in Landlord's reasonable sole judgment, considers advisable and necessary for the purpose of re-letting the demised premisesDemised Premises; and the making of such alterations and/or decorations shall not operate or be construed to release Tenant from liability hereunder as aforesaid. Landlord agrees, however, to use reasonable efforts to re-let the Demised Premises and agree that in no event will it unreasonably refuse to re-let to any person. In no event shall Landlord be expected to make any effort to relet the Demised Premises if there is in the Building comparable space which is vacant or will be vacant within one year from the COMMERCIAL USE ONLY - NO LIVING ALLOWED --------------------------------------- date of repossession of the Demised Premises. Landlord shall in no event be liable in any way whatsoever for failure or refusal to re-let the demised premises Demised Premises or any parts thereof, or, in the event that the demised premises Demised Premises are re-let, let for failure to collect the rent thereof under such reletting. In the event of a breach or threatened breach by Tenant of any of the covenants or provisions hereof, Landlord shall have the right of injunction and the right to invoke any remedy allowed at law or in equity as a result of re-lettingentry, summary proceedings and other remedies were not herein provided for. Mention in this Lease of any particular remedy, shall not preclude Landlord from any other remedy, in law or in equity.
15.02. 15.02 Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant's Tenant being evicted or dispossessed for any cause, or in the event of Landlord's Landlord obtaining possession of the demised premisesDemised Premises, by reason of the violation by Tenant of any of the covenants, terms, provisions covenants and conditions of this Lease or otherwise (beyond applicable notice and grace periods)otherwise.
15.03. Suit or suits for the recovery of such damages, or any installments thereof, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Article 14 or under any provision of law, or had Landlord not re-entered the demised premises. Except as expressly set forth in Section 15.01 and Section 44.07 hereof, nothing herein contained shall be construed to limit or preclude recovery by Landlord or Tenant against the other of any sums or damages to which, in addition to the damages particularly provided herein, such party may lawfully recover.
15.04. In the event of a breach or threatened breach by either Landlord or Tenant of any of the covenants, agreements, terms, provisions and conditions hereof, the non-breaching party shall have the right to seek an injunction and the right to invoke any remedy allowed at law or in equity, and the mention in this Lease of any particular remedy shall not preclude Landlord or Tenant from any other remedy, at law or in equity, except as expressly set forth in Section 15.01 and Section 44.07 hereof and except for consequential and punitive damage, which consequential and punitive damages Landlord and Tenant each hereby waive and release.
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Samples: Lease Agreement (Global Sources LTD)
REMEDIES OF LANDLORD; WAIVER OF REDEMPTION. 15.0120.1. In case If this Lease is terminated under the provisions of Article 19 hereof, or if Landlord shall reenter the demised premises under the provisions of Article 19 hereof, or in the event of the termination of this Lease, or of reentry, by or under any such re-entry, expiration and/or dispossession by summary proceedings dispossess or other legal proceedings as set forth in Article 14 hereof proceeding or action or any provision of law by reason of default hereunder on the part of Tenant, (a) the fixed annual rent and additional rent shall become due thereupon and be paid up to the time of such re-entry, expiration dispossess and/or dispossessionexpiration, together with such expenses as Landlord may reasonably incur for legal expenses, reasonable attorneys' ’ fees, brokerage feesbrokerage, and/or putting the demised premises into in good order, or for preparing the condition in which Tenant would have been obligated to deliver the demised premises on the fixed expiration date of the termsame for rental; (b) Landlord may re-let the demised premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms terms, which may at Landlord's ’s option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and may grant concessions or free rent; and/or and (c) Tenant shall, in addition to the other rights and remedies Landlord has, or may claim by virtue of any other provision contained herein or by virtue of any statute or rule of law, shall also pay Landlord as liquidated damages (and not as a penalty) for the failure of Tenant to observe and perform said Tenant's covenants’s obligations herein contained either:
(i) a sum which, agreementsat the time of such expiration or re-entry, termsor at the time Landlord ceases to collect the amounts provided for in subsection (ii) below, provisions as the case may be, represents the then value (assuming a discount at a rate per annum equal to 2% in excess of the interest rate then applicable to 10-year Federal Treasury Bonds) of the excess of the aggregate of the fixed annual rent and conditions additional rent Under Articles 4 and 5 hereof (conclusively presuming the average monthly additional rent under Articles 4 and 5 hereof to be the same as were payable for the last 12 calendar months, or if less than 12 calendar months have then elapsed since the Commencement Date, all of the calendar months immediately preceding such termination or reentry) which would have been payable by Tenant for the period commencing with such expiration or re-entry, as the case may be, and ending on the scheduled expiration date of the term of this Lease, over the aggregate fair market rental value of the demised premises for the same period (which sum is sometimes herein contained: called “the lump sum payment”); or
(yii) sums equal to any deficiency between the rent hereby reserved and/or covenanted to be paid and the net amount, if any, of the rents collected on account of the lease or leases of the demised premises (or, in the event that Landlord or any Affiliate of Landlord, at its or their option but without any obligation to do so, re-occupies any portion of the demised premises, the fair market rental value attributable to the portion of the demised premises so occupied for the period of such occupancy) for each month of the period which would otherwise have constituted the balance of the term of this Lease, or, at Landlord's option, but in lieu of any other damages which may otherwise be recoverable by Landlord hereunder with respect to the loss of the benefit of Landlord's bargain, (z) a sum which at the time of such termination of this Lease or at the time of any such re-entry by Landlord, as the case may be, represents the then present value of the excess (employing a discount factor equal to the Treasury Rate, as such term is hereinafter defined), if any, of (i) the aggregate amount of the basic annual rent and the additional rent which would have been payable by Tenant (conclusively presuming the average monthly additional rent to be the same as were payable for the last twelve (12) calendar months, or if fewer than twelve (12) calendar months have then elapsed from the last Rent Commencement Date, all of the calendar months immediately preceding such termination or re-entry) for the period commencing with such earlier termination of this Lease or the date of any such re-entry, as the case may be, and ending with the date contemplated as the expiration date hereof if this Lease had not so terminated or if Landlord had not so re-entered the demised premises, over (ii) the aggregate fair market rental value of the demised premises for the same period. The failure or refusal of Landlord to re-let the demised premises or any part or parts thereof shall not release or affect Tenant's liability for damages. In computing such liquidated damages there shall be added to the said deficiency such actual out-of-pocket expenses as Landlord may reasonably incur in connection with re-letting, such as legal expenses, reasonable attorneys' fees, brokerage fees and for keeping the demised premises in good order or for preparing the same re-letting. Any liquidated damages payable pursuant to clause (y) of this Section 15.01 shall be paid in monthly installments by Tenant on the rent days specified in this Lease and any suit or proceeding brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of Landlord to collect the deficiency for any subsequent month by a similar proceedingsuit or proceeding or to thereafter initiate a proceeding to collect the lump sum payment. In computing the damages payable under clause (i) or clause (ii) of the immediately preceding sentence, there shall be added to the lump sum payment or deficiency, as the case may be, such expenses as Landlord may incur or pay in connection with terminating this Lease or re-entering the demised premises and in securing possession thereof, including, without limitation, reasonable attorneys’ fees and disbursements, brokerage, and for keeping the demised premises in good order or for preparing the same for re-letting. In no event shall Tenant be entitled to receive the excess, if any, of any rentals from re-letting over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages pursuant to this Article 20 to a credit in respect of rentals from re-letting except to the extent that such rentals are actually received by Landlord. No such re-letting shall constitute or be deemed to constitute a surrender or the acceptance of a surrender. Landlord shall not be liable in any way whatsoever for its failure to relet the demised premises or any part thereof, or if the demised premises or any part thereof are relet, for its failure to collect the rent under such reletting, and no such failure to relet or failure to collect rent shall release or affect Tenant’s liability for damages or otherwise under this Lease. Landlord, at Landlord's ’s option, may make such alterations, repairs, replacements and/or decorations in the demised premises as Landlord, in Landlord's reasonable ’s sole judgment, considers advisable and necessary for the purpose of re-letting the demised premises; and the making of such alterations and/or decorations shall not operate or be construed to release Tenant from liability hereunder as aforesaid. Landlord shall in no event be liable in any way whatsoever for failure or refusal to re-let the demised premises or any parts thereof, or, in the event that the demised premises are re-let, for failure to collect the rent thereof under such re-letting.
15.0220.2. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant's Tenant being evicted or dispossessed for any cause, or in the event of Landlord's Landlord obtaining possession of the demised premises, by reason of the violation by Tenant of any of the covenants, terms, provisions covenants and conditions of this Lease or otherwise (beyond applicable notice and grace periods)otherwise.
15.0320.3. If Tenant is in arrears in payment of fixed annual rent or additional rent, Tenant waives Tenant’s right, if any, to designate the items to which any payments made by Tenant are to be credited, and Tenant agrees that Landlord may apply any payments made by Tenant to such items as Landlord sees fit, irrespective of and notwithstanding any designation or request by Tenant as to the items which any such payments shall be credited.
20.4. Suit or suits for the recovery of such damages, or any installments thereof, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Article 14 or under any provision of law19 hereof, or had Landlord not re-entered reentered the demised premises. Except as expressly set forth in Section 15.01 and Section 44.07 hereof, nothing Nothing herein contained shall be construed to limit or preclude recovery by Landlord or against Tenant against the other of any sums or damages to which, in addition to the damages particularly provided hereinabove, Landlord may lawfully be entitled by reason of any default hereunder on the part of Tenant. Nothing herein contained shall be construed to limit or prejudice the right of Landlord to prove for and obtain as damages by reason of the termination of this Lease or reentry on the demised premises for the default of Tenant under this Lease an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such party may lawfully recover.
15.04. In the event of a breach damages are to be proved whether or threatened breach by either Landlord or Tenant of not such amount be greater than any of the covenantssums referred to in Section 20.1 hereof.
20.5. In addition, agreements, terms, if this Lease is terminated under the provisions and conditions of Article 19 hereof, or if Landlord shall, reenter the non-breaching party demised premises under the provisions of Article 19 hereof, Tenant agrees that:
(a) the demised premises then shall be in the condition in which Tenant has agreed to surrender the same to Landlord at the expiration of the term hereof;
(b) Tenant shall have performed prior to any such termination any covenant of Tenant contained in this Lease for the right making of any Alterations or for restoring or rebuilding the demised premises or the Building, or any part thereof; and
(c) for the breach of any covenant of Tenant set forth above in this Section 20.4, Landlord shall be entitled immediately, without notice or other action by Landlord, to seek an injunction recover, and Tenant shall pay, as and for liquidated damages therefor, the right actual out-of-pocket cost paid by Landlord to invoke perform such covenant.
20.6. In addition to any remedy allowed other remedies Landlord may have under this Lease, and without reducing or adversely affecting any of Landlord’s rights and remedies under Article 19 hereof, if any fixed annual rent, additional rent or damages payable hereunder by Tenant to Landlord are not paid within five (5) days after the due date thereof, the same shall bear interest at law the prime rate of Citibank, N.A. plus 2% per annum or in equitythe maximum rate permitted by law, whichever is less, from the due date thereof until paid, and the mention amount of such interest shall be additional rent hereunder.
20.7. Mention in this Lease of any particular remedy shall not preclude Landlord or Tenant from any other remedy, at in law or in equity, except as expressly set forth in Section 15.01 and Section 44.07 hereof and except for consequential and punitive damage, which consequential and punitive damages Landlord and Tenant each hereby waive and release.
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