REMEDIES OF LESSOR. All payments hereunder required to be made by Lessee to Lessor shall be deemed and considered as rent reserved upon contract, and all remedies now or hereafter given by the laws of the State of West Virginia for the collection of rent are reserved to Lessor in respect of the sums so payable, and a lien is hereby reserved and imposed upon all the personal property of Lessee at any time acquired for use in connection with Lessee’s operations on the Leased Premises and remaining thereon at the time of any default hereunder, as well as also upon this Lease and the leasehold estate hereby created, to secure the payment of any and all sums. If default be made by Lessee in (i) the payment of the rentals, royalties, taxes, wheelage fees, and any other payments or charges required to be paid under this Lease; or (b) in the performance of any of the other terms or conditions hereof required to be kept or performed by Lessee, including, without limitation, the requirement to conduct its operations in accordance with Section 6 of this Lease, to provide mine plans for approval in accordance with Section 6, to maintain insurance and indemnify Lessor as set forth in Section 5, to maintain lateral and subjacent support of the Leased Premises in accordance with Section 6, to avoid the loss of or bypassing coal in accordance with Section 6, to pay, perform and be responsible for any and all black lung benefits, to conduct its operations in compliance with applicable law, and perform any and all other covenants and obligations to be performed by Lessee hereunder; and in each or any such case, such default shall continue for a period of fifteen (15) days after written notification thereof has been posted to Lessee, then in such event and as often as the same occurs, Lessor may, at its option, terminate this Lease without any further notice and re-enter upon and take possession of the Leased Premises and hold and possess the same as its absolute property free and clear of any claims of, by, or through Lessee, and pursue any and all other remedies available under the laws of the State of West Virginia for violation of any covenant or condition hereof, and all such remedies shall be deemed cumulative and not exclusive. Lessee further agrees that if the interest of Lessee in the Leased Premises shall be sold on execution or judicial sale, or if bankruptcy proceedings be begun by Lessee, or if Lessee be adjudged a bankrupt, or it makes an assignment for the benefit of creditors, or a receiver be appointed for it or for the Leased Premises, or if an assignment occurs by operation of law, then, and in any such event, this Lease shall forthwith terminate and be forfeited and the Leased Premises and all improvements thereon shall forthwith become the property of Lessor, without compensation to Lessee, and without refund of any royalties paid hereunder.
Appears in 2 contracts
Samples: Lease (Ramaco Resources, Inc.), Lease (Ramaco Resources, Inc.)
REMEDIES OF LESSOR. All payments hereunder required to be made by Lessee to Lessor shall be deemed and considered as rent reserved upon contract, and all remedies now or hereafter given by the laws of the State of West Virginia for the collection of rent are reserved to Lessor in respect of the sums so payable, and a lien is hereby reserved and imposed upon all the personal property of Lessee at any time acquired for use in connection with Lessee’s operations on the Leased Premises and remaining thereon at the time of any default hereunder, as well as also upon this Lease and the leasehold estate hereby created, to secure the payment of any and all sums. If default be made by Lessee in (i) the payment of the rentals, royalties, taxes, wheelage fees, rentals and any other payments or charges required to be paid under this Lease; or (b) in the performance of any of the other terms or conditions hereof required to be kept or performed by Lessee, including, without limitation, the requirement to conduct its operations in accordance with Section 6 of this Lease, to provide mine plans for approval in accordance with Section 6, to maintain insurance royalties herein and indemnify Lessor as set forth in Section 5, to maintain lateral and subjacent support of the Leased Premises in accordance with Section 6, to avoid the loss of or bypassing coal in accordance with Section 6, to pay, perform and be responsible for any and all black lung benefits, to conduct its operations in compliance with applicable law, and perform any and all other covenants and obligations to be performed by Lessee hereunder; and in each or any such case, such default shall continue for a period of fifteen (15) days after written notification thereof has been posted to Lessee, then in each such event and as often as the same occursevent, Lessor may, at its option, terminate this Lease without any further notice and re-enter upon and take possession of the Leased Premises and hold and possess the same as its absolute property free and clear of any claims of, by, or through Lessee, and pursue any and all other remedies available under the laws of the State of West Virginia Illinois for violation of any covenant or condition hereof, and all such remedies shall be deemed cumulative and not exclusive. If default be made by Lessee in the performance of any of the other terms or conditions hereof required to be kept of performed by Lessee and such default shall continue for a period of thirty (30) days after written notification thereof has been posted to Lessee, and in the event that Lessee is not reasonably engaged in curing the said default, then in such event, Lessor may, at its option, terminate this Lease without any further notice and re-enter upon and take possession of the Leased Premises and hold and possess the same as its absolute property free and clear of any claims of, by or through Lessee, and pursue any and all other remedies available under the laws of the State of Illinois for violations of any covenant or condition hereof, and all such remedies shall be deemed cumulative and not exclusive. Lessee shall notify Lessor of its proposed cure actions and continue to keep Lessor informed on a regular basis of the actions taken and results thereof. No action by Lessor pursuant to this Section 7 shall impair the right to rental and royalties due or accrued up to the time of termination and re-entry hereunder, but none shall be charged for any period thereafter. Lessee further agrees that if the interest of Lessee in the Leased Premises shall be sold on execution or judicial sale, or if bankruptcy proceedings be begun by Lessee, or if Lessee be adjudged a bankrupt, or it makes an assignment for the benefit of creditors, or a receiver be appointed for it or for the Leased Premises, or if an assignment occurs by operation of law, then, and in any such event, this Lease shall forthwith terminate and be forfeited and the Leased Premises and all improvements thereon shall forthwith become the property of Lessor, without compensation to Lessee, and without refund of any royalties paid hereunder.
Appears in 2 contracts
Samples: Coal Mining Lease Agreement (Foresight Energy LP), Coal Mining Lease Agreement (Foresight Energy Partners LP)
REMEDIES OF LESSOR. All payments hereunder required to If default be made by Lessee to Lessor shall be deemed and considered as rent reserved upon contract, and all remedies now or hereafter given by in the laws payment of the State rentals and royalties herein and such default shall continue for a period of West Virginia for the collection 15 days after written notification thereof has been posted to Lessee, then in each such event, Lessor may, at its option, terminate this Lease without any further notice and re-enter upon and take possession of rent are reserved to Lessor in respect of the sums so payable, and a lien is hereby reserved and imposed upon all the personal property of Lessee at any time acquired for use in connection with Lessee’s operations on the Leased Premises and remaining thereon at hold and possess the time same as its absolute property free and dear of any default hereunderclaims of, as well as also upon this Lease by, or through Lessee, and the leasehold estate hereby created, to secure the payment of pursue any and all sumsother remedies available under the laws of State of Illinois for violation of any covenant or condition hereof, and all such remedies the shall be deemed cumulative and not exclusive. If default be made by Lessee in (i) the payment of the rentals, royalties, taxes, wheelage fees, and any other payments or charges required to be paid under this Lease; or (b) in the performance of any of the other terms or conditions hereof required to be kept or performed by Lessee, including, without limitation, the requirement to conduct its operations in accordance with Section 6 of this Lease, to provide mine plans for approval in accordance with Section 6, to maintain insurance and indemnify Lessor as set forth in Section 5, to maintain lateral and subjacent support of the Leased Premises in accordance with Section 6, to avoid the loss of or bypassing coal in accordance with Section 6, to pay, perform and be responsible for any and all black lung benefits, to conduct its operations in compliance with applicable law, and perform any and all other covenants and obligations to be performed by Lessee hereunder; and in each or any such case, such default shall continue for a period of fifteen (15) 30 days after written notification thereof has been posted to Lessee, and in the event that Lessee is not reasonably engaged in curing the said default, then in such event and as often as the same occursevent, Lessor may, at its option, terminate this Lease without any further notice and re-enter upon and take possession of the Leased Premises and hold and possess the same as its absolute property free and clear of any claims of, by, by or through Lessee, and pursue any and all other remedies available under the laws of the State of West Virginia Illinois for violation violations of any covenant or condition hereof, and all such remedies shall be deemed cumulative and not exclusive. Lessee shall notify Lessor of its proposed cure actions and continue to keep Lessor informed on a regular basis of the actions taken and results thereof. No action by Lessor pursuant to this Section 7 shall impair the right to rental and royalties due or accrued up to the time of termination and reentry hereunder, but none shall be charged for any period thereafter. Lessee further agrees that if the interest of Lessee in the Leased Premises shall be sold on execution or judicial sale, or if bankruptcy proceedings be begun by Lessee, or if Lessee be adjudged a bankrupt, or it makes an assignment for the benefit of creditors, or a receiver be appointed for it or for the Leased Premises, or if an assignment occurs by operation of law, then, and in any such event, this Lease shall forthwith terminate and be forfeited and the Leased Premises and all improvements thereon shall forthwith become the property of Lessor, without compensation to Lessee, and without refund of any royalties paid hereunder.
Appears in 2 contracts
Samples: Coal Mining Lease Agreement (Foresight Energy LP), Coal Mining Lease Agreement (Foresight Energy Partners LP)
REMEDIES OF LESSOR. All payments hereunder required In the event that during the term of this Lease (regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity, or before any administrative tribunal, which has prevented or might prevent compliance by Tenant with the terms of this Lease):
(a) Tenant shall have failed to be made by Lessee to Lessor pay any installment of rent or any other charge provided herein, or any portion thereof when the same shall be deemed due and considered as rent reserved upon contract, and all remedies now or hereafter given by the laws of the State of West Virginia for the collection of rent are reserved to Lessor in respect of the sums so payable, and the same shall remain unpaid for a lien is hereby reserved and imposed upon all the personal property period of Lessee at ten (10) days after written notice thereof;
(b) Tenant shall have failed to comply with any time acquired for use in connection with Lessee’s operations on the Leased Premises and remaining thereon at the time other provisions of any default hereunder, as well as also upon this Lease and shall not cure such failure within ten (10) days after Lessor, by written notice, has informed Tenant of such non-compliance; provided, however, in the leasehold estate hereby createdcase of a default other than payment, which cannot, with due diligence, be cured within a period of ten (10) days, Tenant shall have such additional time to secure the payment cure such default as may reasonably be necessary, but in no event in excess of sixty (60) days, provided, Tenant proceeds promptly and with due diligence to cure such default after receipt of said notice; or
(c) Tenant, or its guarantor, if any, shall become insolvent or unable to pay its debts as they mature, or suspends business or commences proceedings under any and all sums. If default be made by Lessee in (i) the payment bankruptcy, reorganization, arrangement, insolvency, or readjustment of debt, dissolution or liquidation laws, either of the rentals, royalties, taxes, wheelage fees, and United States or any other payments or charges required to be paid under this Leasestate thereof; or or
(bd) in the performance of if any of the other terms or conditions hereof required to be kept or performed by Lessee, including, without limitation, the requirement to conduct its operations in accordance with Section 6 of this Lease, to provide mine plans for approval in accordance with Section 6, to maintain insurance and indemnify Lessor such proceedings as set forth in Section 5subparagraph (c) of this paragraph 40 shall be commenced against Tenant, to maintain lateral and subjacent support of the Leased Premises in accordance with Section 6or its guarantor, to avoid the loss of or bypassing coal in accordance with Section 6, to pay, perform and be responsible for any and all black lung benefits, to conduct its operations in compliance with applicable lawif any, and perform that entity or individual consents thereto, or does not take affirmative action to have the proceedings dismissed within ten (10) days, or such proceeding remains undismissed for thirty (30) days, or an order is entered in any and all other covenants and obligations to be performed by Lessee hereunder; and in each proceeding adjudicating Tenant, or any such caseits guarantor, such default shall continue for if any, a period of fifteen (15) days after written notification thereof has been posted to Lessee, then bankrupt or insolvent or approving the petition in such event and as often as the same occurs, Lessor may, at its option, terminate this Lease without any further notice and re-enter upon and take possession of the Leased Premises and hold and possess the same as its absolute property free and clear of any claims of, byproceeding; or
(e) Tenant, or through Lesseeits guarantor, and pursue if any and all other remedies available under the laws of the State of West Virginia for violation of any covenant or condition hereof, and all such remedies shall be deemed cumulative and not exclusive. Lessee further agrees that if the interest of Lessee in the Leased Premises shall be sold on execution or judicial sale, or if bankruptcy proceedings be begun by Lessee, or if Lessee be adjudged a bankrupt, or it makes an assignment for the benefit of creditors, or a receiver be or trustee is appointed for it Tenant, or its guarantor, if any, or for any substantial part of a property of Tenant, or its guarantor, if any; or
(f) Tenant shall have ceased to conduct its normal business operations in the leased premises, or shall vacate or abandon the leased premises and leave the same vacated or abandoned for a period of ten (10) days, excepting vacation or abandonment due to fire or other casualty, or repairs or improvements by Lessor which necessitate such vacation or abandonment; or
(g) Tenant shall do or permit to be done anything which creates a lien upon the leased premises; provided, however, this subparagraph shall be subject to the provisions of paragraph 31; then Lessor upon five (5) days' written notice to Tenant may elect either (i) to cancel and terminate this Lease and this Lease shall not be treated as an asset of Tenant's estate, or (ii) to terminate Tenant's right to possession only without canceling and terminating this Lease. Notwithstanding the fact that initially Lessor elects under (iii) to terminate Tenant's right to possession only, Lessor shall have the continuing right to cancel and terminate this Lease by serving five (5) days' written notice on Tenant of such further election, and shall have the right to pursue any remedy at law or in equity that may be available to Lessor. In the event of election under (ii) to terminate Tenant's right to possession only, Lessor may, at Lessor's option, enter into the leased premises and take and hold possession thereof, without such entry into possession terminating this Lease or releasing Tenant in whole or in part from Tenant's obligation to pay the rent hereunder for the full stated term. Upon such reentry, Lessor may remove all persons and property from the leased premises and such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Tenant, without becoming liable for any loss or damage which may be occasioned thereby. Such re-entry shall be conducted in the following manner: without resort to judicial process or notice of any kind in the situation where Tenant has abandoned or voluntarily surrendered possession of the leased premises; and, otherwise by resort to judicial process. Upon and after entry into possession without termination of the Lease, Lessor shall use its best efforts to relet the premises, or any part thereof, for the account of Tenant, to any person, firm or corporation, other than Tenant, for such rent, for such time and upon such terms as Lessor, in Lessor's sole discretion, shall determine, but Lessor shall not be required to accept any tenant offered by Tenant or to observe any instruction given by Tenant about such reletting. Lessor may make alterations and repairs, and redecorate the leased premises to the extent deemed by Lessor necessary or desirable. Upon such re-entry, Tenant shall be liable to Lessor as follows:
(a) for the unpaid installments of rent and other unpaid sums which were due prior to such re-entry, which sums shall be payable forthwith;
(b) for the installments of rent and other sums falling due pursuant to the provisions of this Lease for the periods after re-entry during which the leased premises remain vacant, which sums shall be payable as they become due hereunder;
(c) for all expenses, including commissions, attorneys' fees, costs of alterations, repairs and redecorating, which shall be payable as they are incurred; and
(d) while the leased premises are subject to any new lease or leases made pursuant to this paragraph, for the amount by which the monthly installments payable under such new lease or leases is less than the monthly installment for all charges payable pursuant to this Lease, which deficiencies shall be payable monthly. No such re-entry or taking possession of the leased premises by Lessor shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding Lessor's election to terminate Tenant's right to possession only, and notwithstanding any reletting without termination, Lessor, at any timer thereafter, may elect to terminate this Lease, and to recover, in lieu of the amounts which would thereafter be payable pursuant to the foregoing, as damages for loss of the bargain and not as a penalty, an aggregate sum equal to the amount by which the rental value of the portion of the term unexpired at the time of such election is less than the entire amount of unpaid minimum guaranteed rent and all additional charges which would have been payable by Tenant hereunder for the unexpired portion of the term, which deficiency and all expenses incident thereto, including commissions, attorney's fees, expenses of alterations, repairs and redecorating, shall be due to Lessor as of the time Lessor exercises said election, notwithstanding that the term has not expired; and if Lessor, after such re-entry, leases said leased premises, then the rent payable under such new lease shall be conclusive evidence of the rental value of said unexpired portion of said term. If this Lease shall be terminated by reason of the bankruptcy or insolvency of Tenant, Lessor shall be entitled, notwithstanding any other provision of this Lease or any present or future law, to recover from Tenant or Tenant's estate, in lieu of the equivalent of the amount of all minimum guaranteed rent and all other charges payable hereunder, as damages for loss of the bargain and not as a penalty, an aggregate sum which, at the time of such termination of this Lease, represents the then present worth of the excess, if any, of the aggregate of the minimum guaranteed rent and all other charges payable pursuant to the provisions of this Lease over the aggregate rental value of the leased premises for the balance of the term, unless any statute or rule of law governing the proceedings in which such damages are to be proved shall limit the amount of such claim capable of being so proved, in which case, Lessor shall be entitled to prove, as and for liquidated damages, by reason of such breach and termination of this Lease, the maximum amount which may be allowed by or under such statute or rule of law. Nothing contained herein shall limit or prejudice Lessor's right to prove and obtain as liquidated damages arising out of such breach or termination the maximum amount allowed by any such statute or rule of law which may govern the proceedings in which such damages are to be proved whether or not such amount be greater, equal to, or less than the amount of excess of all charges over the rental value referred to above. If Lessor shall at any time be entitled to rent under this Lease pursuant to any of the covenants, conditions or agreements of this Lease either (i) after the termination of this Lease, or (ii) after termination of Tenant's right to possession without termination of this Lease, Lessor shall recover and Tenant agrees to pay the minimum guaranteed rent, the percentage rent and any other charges as provided for in this Lease. For the purpose of determining the percentage rent, in either case, such rent shall be computed prorata on the basis of the average sales for the twenty four (24) months immediately preceding the occurrence of either such event of default or for the Leased Premisesexpired portion of this Lease, whichever period is shorter. If Tenant shall default in the performance of any covenant required to be performed by it under this Lease, taking into consideration the grace periods provided in paragraphs 40 (a) and 40 (b), Lessor may perform the same for the account and at the expense of Tenant, upon giving notice to Tenant of its intention to do so. If Lessor at any time is compelled to pay, or elects to pay, any sum of money by reason of the failure of Tenant to comply with any provision of this Lease, or if Lessor is compelled to incur any expense, including, reasonable attorney's fees, in instituting, prosecuting or defending any action or proceeding instituted by reason of any default of Tenant hereunder, the sum or sums so paid by Lessor shall be due from Tenant to Lessor on the next date following the payment of such sums upon which a regular monthly rental payment is due, together with interest, at a rate which is the lesser of the maximum allowable legal rate or eighteen percent (18%) per annum, from the respective dates of each such payment. In addition, in the event Lessor performs construction work on behalf of Tenant, which is Tenants obligation pursuant to the provisions of this Lease, Lessor shall be entitled to an assignment occurs amount equal to fifteen percent (15%) of the amount of the costs and expenses of such construction as payment to Lessor for overhead and supervision, in addition to the costs and expenses of such construction. No right or remedy herein conferred upon or reserved to Lessor is intended to be exclusive of any other right or remedy herein or by operation of lawlaw provided, then, but each shall be cumulative and in any such event, this Lease shall forthwith terminate and be forfeited and the Leased Premises and all improvements thereon shall forthwith become the property of Lessor, without compensation addition to Lessee, and without refund of any royalties paid hereunderevery other right or remedy given herein or now or hereafter existing at law or in equity or by statute.
Appears in 1 contract
REMEDIES OF LESSOR. All payments hereunder required to be made by Lessee to Lessor shall be deemed and considered as rent reserved upon contract, and all remedies now or hereafter given by the laws of the State Commonwealth of West Virginia for the collection of rent are reserved to Lessor in respect of the sums so payable, and a lien is hereby reserved and imposed upon all the personal property of Lessee at any time acquired for use in connection with Lessee’s operations on the Leased Premises and remaining thereon at the time of any default hereunder, as well as also upon this Lease and the leasehold estate hereby created, to secure the payment of any and all sums. If default be made by Lessee in (i) the payment of the rentalsrentals and royalties herein reserved, royalties, taxes, wheelage fees, and any other payments or charges required to be paid under this Lease; or (b) in the performance of any of the other terms or conditions hereof required to be kept or performed by Lessee, including, without limitation, the requirement to conduct its operations in accordance with Section 6 of this Lease, to provide mine plans for approval in accordance with Section 6, to maintain insurance and indemnify Lessor as set forth in Section 5, to maintain lateral and subjacent support of the Leased Premises in accordance with Section 6, to avoid the loss of or bypassing coal in accordance with Section 6, to pay, perform and be responsible for any and all black lung benefits, to conduct its operations in compliance with applicable law, and perform any and all other covenants and obligations to be performed by Lessee hereunder; and in each or any such case, such default shall continue for a period of fifteen ten (1510) days with respect to payment of rentals and royalties, or thirty (30) days with respect to performance of any of the other terms or conditions, after written notification thereof has been posted to received by Lessee, then in such event and as often as the same occurs, Lessor may, at its option, terminate this Lease without any further notice and re-enter upon and take possession of the Leased Premises and hold and possess the same as its absolute property free and clear of any claims of, by, or through Lessee, and pursue any and all other remedies available under the laws of the State Commonwealth of West Virginia for violation of any covenant or condition hereof, and all such remedies shall be deemed cumulative and not exclusive. Notwithstanding the foregoing, should physical conditions on the Leased Premises prohibit cure of any default (other than payment of rental or royalty) by Lessee within the prescribed thirty (30) day period, then Lessee shall be required to have diligently and in good faith commenced curative measures and shall within ten (10) days of notice of default advise The symbol [***] is used to indicate that a portion of the exhibit has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portion. Lessor in detail in writing as to what physical conditions are prohibiting completion of such cure and setting forth a timetable for such cure. Such notice by Lessee to Lessor shall toll the thirty (30) day curative time until physical conditions permit completion of curative work in a diligent good faith fashion. No action by Lessor pursuant to this Section 7 shall impair the right to rental and royalties due or accrued up to the time of termination and re-entry hereunder, but none shall be charged for any period thereafter Lessee further agrees that if the interest of Lessee in the Leased Premises shall be sold on execution or judicial sale, or if bankruptcy proceedings be begun by Lessee, or if Lessee be adjudged a bankrupt, or it makes an assignment for the benefit of creditors, or a receiver be appointed for it or for the Leased Premises, or if an assignment occurs by operation of law, then, and in any such event, this Lease shall forthwith terminate and be forfeited and the Leased Premises and all improvements thereon shall forthwith become the property of Lessor, without compensation to Lessee, and without refund of any royalties paid hereunder.
Appears in 1 contract
REMEDIES OF LESSOR. All payments hereunder required In the event that during the term of this Lease (regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity, or before any administrative tribunal, which has prevented or might prevent compliance by Tenant with the terms of this Lease):
(a) Tenant shall have failed to be made by Lessee to Lessor pay any installment of rent or any other charge provided herein, or any portion thereof when the same shall be deemed due and considered as rent reserved upon contract, and all remedies now or hereafter given by the laws of the State of West Virginia for the collection of rent are reserved to Lessor in respect of the sums so payable, and the same shall remain unpaid for a lien is hereby reserved and imposed upon all the personal property period of Lessee at ten (10) days after written notice thereof;
(b) Tenant shall have failed to comply with any time acquired for use in connection with Lessee’s operations on the Leased Premises and remaining thereon at the time other provisions of any default hereunder, as well as also upon this Lease and shall not cure such failure within ten (10) days after Lessor, by written notice, has informed Tenant of such non-compliance; provided, however, in the leasehold estate hereby createdcase of a default other than payment, which cannot, with due diligence, be cured within a period of ten (10) days, Tenant shall have such additional time to secure the payment cure such default as may reasonably be necessary, but in no event in excess of sixty (60) days, provided, Tenant proceeds promptly and with due diligence to cure such default after receipt of said notice; or
(c) Tenant, or its guarantor, if any, shall become insolvent or unable to pay its debts as they mature, or suspends business or commences proceedings under any and all sums. If default be made by Lessee in (i) the payment bankruptcy, reorganization, arrangement, insolvency, or readjustment of debt, dissolution or liquidation laws, either of the rentals, royalties, taxes, wheelage fees, and United States or any other payments or charges required to be paid under this Leasestate thereof; or or
(bd) in the performance of if any of the other terms or conditions hereof required to be kept or performed by Lessee, including, without limitation, the requirement to conduct its operations in accordance with Section 6 of this Lease, to provide mine plans for approval in accordance with Section 6, to maintain insurance and indemnify Lessor such proceedings as set forth in Section 5subparagraph (c) of this paragraph 40 shall be commenced against Tenant, to maintain lateral and subjacent support of the Leased Premises in accordance with Section 6or its guarantor, to avoid the loss of or bypassing coal in accordance with Section 6, to pay, perform and be responsible for any and all black lung benefits, to conduct its operations in compliance with applicable lawif any, and perform that entity or individual consents thereto, or does not take affirmative action to have the proceedings dismissed within ten (10) days, or such proceeding remains undismissed for thirty (30) days, or an order is entered in any and all other covenants and obligations to be performed by Lessee hereunder; and in each proceeding adjudicating Tenant, or any such caseits guarantor, such default shall continue for if any, a period of fifteen (15) days after written notification thereof has been posted to Lessee, then bankrupt or insolvent or approving the petition in such event and as often as the same occurs, Lessor may, at its option, terminate this Lease without any further notice and re-enter upon and take possession of the Leased Premises and hold and possess the same as its absolute property free and clear of any claims of, byproceeding; or
(e) Tenant, or through Lesseeits guarantor, and pursue any and all other remedies available under the laws of the State of West Virginia for violation of any covenant or condition hereofif any, and all such remedies shall be deemed cumulative and not exclusive. Lessee further agrees that if the interest of Lessee in the Leased Premises shall be sold on execution or judicial sale, or if bankruptcy proceedings be begun by Lessee, or if Lessee be adjudged a bankrupt, or it makes an assignment for the benefit of creditors, or a receiver be or trustee is appointed for it Tenant, or its guarantor, if any, or for any substantial part of a property of Tenant, or its guarantor, if any; or
(f) Tenant shall have ceased to conduct its normal business operations in the leased premises, or shall vacate or abandon the leased premises and leave the same vacated or abandoned for a period of ten (10) days, excepting vacation or abandonment due to fire or other casualty, or repairs or improvements by Lessor which necessitate such vacation or abandonment; or
(g) Tenant shall do or permit to be done anything which creates a lien upon the leased premises; provided, however, this subparagraph shall be subject to the provisions of paragraph 31; then Lessor upon five (5) days' written notice to Tenant may elect either (i) to cancel and terminate this Lease and this Lease shall not be treated as an asset of Tenant's estate, or (ii) to terminate Tenant's right to possession only without cancelling and terminating this Lease. Notwithstanding the fact that initially Lessor elects under (ii) to terminate Tenant's right to possession only, Lessor shall have the continuing right to cancel and terminate this Lease by serving five (5) days' written notice on Tenant of such further election, and shall have the right to pursue any remedy at law or in equity that may be available to Lessor. In the event of election under (ii) to terminate Tenant's right to possession only, Lessor may, at Lessor's option, enter into the leased premises and take and hold possession thereof, without such entry into possession terminating this Lease or releasing Tenant in whole or in part from Tenant's obligation to pay the rent hereunder for the full stated term. Upon such reentry, Lessor may remove all persons and property from the leased premises and such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Tenant, without becoming liable, for any loss or damage which may be occasioned thereby. Such re-entry shall be conducted in the following manner: without resort to judicial process or notice of any kind in the situation where Tenant has abandoned or voluntarily surrendered possession of the leased premises; and, otherwise, by resort to judicial process. Upon and after entry into possession without termination of the Lease, Lessor shall use its best efforts to relet the premises, or any part thereof, for the account of Tenant, to any person, firm or corporation, other than Tenant, for such rent, for such time and upon such terms as Lessor, in Lessor's sole discretion, shall determine, but Lessor shall not be required to accept any tenant offered by Tenant or to observe any instruction given by Tenant about such reletting. Lessor may make alterations and repairs, and redecorate the leased premises to the extent deemed by Lessor necessary or desirable. Upon such re-entry, Tenant shall be liable to Lessor as follows:
(a) for the unpaid installments of rent and other unpaid sums which were due prior to such re-entry, which sums shall be payable forthwith;
(b) for the installments of rent and other sums falling due pursuant to the provisions of this Lease for the periods after re-entry during which the leased premises remain vacant, which sums shall be payable as they become due hereunder;
(c) for all expenses, including commissions, attorneys' fees, costs of alterations, repairs and redecorating, which shall be payable as they are incurred; and
(d) while the leased premises are subject to any new lease or leases made pursuant to this paragraph, for the amount by which the monthly installments payable under such new lease or leases is less than the monthly installment for all charges payable pursuant to this Lease, which deficiencies shall be payable monthly. No such re-entry or taking possession of the leased premises by Lessor shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding Lessor's election to terminate Tenant's right to possession only, and notwithstanding any reletting without termination, Lessor, at any time thereafter, may elect to terminate this Lease, and to recover, in lieu of the amounts which would thereafter be payable pursuant to the foregoing, as damages for loss of the bargain and not as a penalty, an aggregate sum equal to the amount by which the rental value of the portion of the term unexpired at the time of such election is less than the entire amount of unpaid minimum guaranteed rent and all additional charges which would have been payable by Tenant hereunder for the unexpired portion of the term, which deficiency and all expenses incident thereto, including commissions, attorney's fees, expenses of alterations, repairs and redecorating, shall be due to Lessor as of the time Lessor exercises said election, notwithstanding that the term has not expired; and if Lessor, after such reentry, leases said leased premises, then the rent payable under such new lease shall be conclusive evidence of the rental value of said unexpired portion of said term. If this Lease shall be terminated by reason of the bankruptcy or insolvency of Tenant, Lessor shall be entitled, notwithstanding any other provision of this Lease or any present or future law, to recover from Tenant or Tenant's estate, in lieu of the equivalent of the amount of all minimum guaranteed rent and all other charges payable hereunder, as damages for loss of the bargain and not as a penalty, an aggregate sum which, at the time of such termination of this Lease, represents the then present worth of the excess, if any, of the aggregate of the minimum guaranteed rent and all other charges payable pursuant to the provisions of this Lease over the aggregate rental value of the leased premises for the balance of the term, unless any statute or rule of law governing the proceedings in which such damages are to be proved shall limit the amount of such claim capable of being so proved, in which case, Lessor shall be entitled to prove, as and for liquidated damages, by reason of such breach and termination of this Lease, the maximum amount which may be allowed by or under such statute or rule of law. Nothing contained herein shall limit or prejudice Lessor's right to prove and obtain as liquidated damages arising out of such breach or termination the maximum amount allowed by any such statute or rule of law which may govern the proceedings in which such damages are to be proved whether or not such amount be greater, equal to, or less than the amount of the excess of all charges over the rental value referred to above. If Lessor shall at any time be entitled to rent under this Lease pursuant to any of the covenants, conditions or agreements of this Lease either (i) after the termination of this Lease, or (ii) after termination of Tenant's right to possession without termination of this Lease, Lessor shall recover and Tenant agrees to pay the minimum guaranteed rent, the percentage rent and any other charges as provided for in this Lease. For the purpose of determining the percentage rent, in either case, such rent shall be computed pro rata on the basis of the average sales for the twenty-four (24) months immediately preceding the occurrence of either such event of default or for the Leased Premisesexpired portion of this Lease, whichever period is shorter. If Tenant shall default in the performance of any covenant required to be performed by it under this Lease, taking into consideration the grace periods provided in paragraphs 40(a) and 40(b), Lessor may perform the same for the account and at the expense of Tenant, upon giving notice to Tenant of its intention to do so. If Lessor at any time is compelled to pay, or elects to pay, any sum of money by reason of the failure of Tenant to comply with any provision of this Lease, or if Lessor is compelled to incur any expense, including, reasonable attorney's fees, in instituting, prosecuting or defending any action or proceeding instituted by reason of any default of Tenant hereunder, the sum or sums so paid by Lessor shall be due from Tenant to Lessor on the next date following the payment of such sums upon which a regular monthly rental payment is due, together with interest, at a rate which is the lesser of the maximum allowable legal rate or eighteen percent (18%) per annum, from the respective dates of each such payment. In addition, in the event Lessor performs construction work on behalf of Tenant, which is Tenant's obligation pursuant to the provisions of this Lease, Lessor shall be entitled to an assignment occurs amount equal to fifteen percent (15%) of the amount of the costs and expenses of such construction as payment to Lessor for overhead and supervision, in addition to the costs and expenses of such construction. No right or remedy herein conferred upon or reserved to Lessor is intended to be exclusive of any other right or remedy herein or by operation of lawlaw provided, then, but each shall be cumulative and in any such event, this Lease shall forthwith terminate and be forfeited and the Leased Premises and all improvements thereon shall forthwith become the property of Lessor, without compensation addition to Lessee, and without refund of any royalties paid hereunderevery other right or remedy given herein or now or hereafter existing at law or in equity or by statute.
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REMEDIES OF LESSOR. All payments hereunder required to be made by Lessee to Lessor shall be deemed and considered as rent reserved upon contract, and all remedies now or hereafter given by the laws of the State of West Virginia for the collection of rent are reserved to Lessor in respect of the sums so payable, and a lien is hereby reserved and imposed upon all the personal property of Lessee at any time acquired for use in connection with Lessee’s operations on the Leased Premises and remaining thereon at the time of any default hereunder, as well as also upon this Lease and the leasehold estate hereby created, to secure the payment of any and all sums. If default be made by Lessee in (i) the payment of the rentalsrentals and royalties herein reserved, royalties, taxes, wheelage fees, and any other payments or charges required to be paid under this Lease; or (b) in the performance of any of the other terms or conditions hereof required to be kept or performed by Lessee, including, without limitation, the requirement to conduct its operations in accordance with Section 6 of this Lease, to provide mine plans for approval in accordance with Section 6, to maintain insurance and indemnify Lessor as set forth in Section 5, to maintain lateral and subjacent support of the Leased Premises in accordance with Section 6, to avoid the loss of or bypassing coal in accordance with Section 6, to pay, perform and be responsible for any and all black lung benefits, to conduct its operations in compliance with applicable law, and perform any and all other covenants and obligations to be performed by Lessee hereunder; and in each or any such case, such default shall continue for a period of fifteen ten (1510) days with respect to payment of rentals and royalties&, or thirty (30) days with respect to performance of any of the other terms or conditions, after written notification thereof has been posted to Lessee, then in such event and as often as the same occurs, Lessor may, at its option, terminate this Lease without any further M e r notice and re-enter upon and take possession of the Leased Premises and hold and possess the same as its absolute property free and clear of any claims of, by, or through Lessee, and pursue any and all other remedies available under the laws of the State of West Virginia for violation of any covenant or condition hereof, and all such remedies shall be deemed cumulative and not exclusive. Notwithstanding the foregoing, should physical conditions on the Leased Premises prohibit cure of any default (other than payment of rental or royalty) by Lessee within the prescribed thirty (30) day period, then Lessee shall be required to have diligently and in good faith commenced curative measures and shall within ten (10) days of notice of default advise Lessor in detail in writing as to what physical conditions are prohibiting completion of such cure and setting forth a timetable for such cure. Such notice by Lessee to Lessor shall toll the thirty (30) day curative time until physical conditions on the Leased Premises permit completion of curative work in a diligent good faith fashion. No action by Lessor pursuant to this Section 7 shall impair the right to rental and royalties due or accrued up to the time of termination and re-entry hereunder, but none shall be charged for any period thereafter Lessee further agrees that if the interest of Lessee in the Leased Premises shall be sold on execution or judicial sale, or if bankruptcy proceedings be begun by Lessee, or if Lessee be adjudged a bankrupt, or it makes an assignment for the benefit of creditors, or a receiver be appointed for it or for the Leased Premises, or if an assignment occurs by operation of law, then, and in any such event, this Lease shall forthwith terminate and be forfeited and the Leased Premises and all improvements thereon shall forthwith become the property of Lessor, without compensation to Lessee, and without refund of any royalties paid hereunder.
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REMEDIES OF LESSOR. All payments hereunder required to be made by Lessee to Lessor (i) If LESSEE shall be deemed and considered as default in the payment of the rent reserved upon contractherein, and all remedies now or hereafter given by the laws of the State of West Virginia for the collection of rent are reserved to Lessor in respect of the sums so payable, and a lien is hereby reserved and imposed upon all the personal property of Lessee at any time acquired for use in connection with Lessee’s operations on the Leased Premises and remaining thereon at the time of any default hereunder, as well as also upon this Lease and the leasehold estate hereby created, to secure the payment of any and all sums. If item of additional rent or other monies due hereunder, or any part of same, or LESSEE shall default be made by Lessee in (i) the payment of the rentals, royalties, taxes, wheelage fees, and any other payments or charges required to be paid under this Lease; or (b) in the performance observance of any of the other terms or terms, covenants and conditions hereof required to be kept or performed by Lessee, including, without limitation, the requirement to conduct its operations in accordance with Section 6 of this Lease, to provide mine plans for approval in accordance with Section 6, to maintain insurance Lease and indemnify Lessor as set forth in Section 5, to maintain lateral and subjacent support of the Leased Premises in accordance with Section 6, to avoid the loss of or bypassing coal in accordance with Section 6, to pay, perform and be responsible for any and all black lung benefits, to conduct its operations in compliance with applicable law, and perform any and all other covenants and obligations to be performed by Lessee hereunder; and in each or any such case, such default shall continue continues for a period of fifteen more than thirty (1530) days after written notification thereof has been posted to Lessee, then in notice of such event and as often as default; or
(ii) If the same occurs, Lessor may, at its option, terminate this Lease without any further notice and re-enter upon and take possession of the Leased Premises and hold and possess the same as its absolute property free and clear of any claims of, by, or through Lessee, and pursue any and all other remedies available under the laws of the State of West Virginia for violation of any covenant or condition hereof, and all such remedies demised Property shall be deemed cumulative and not exclusive. Lessee further agrees that if the interest of Lessee in the Leased Premises shall be sold on execution abandoned, deserted or judicial salevacated, or if bankruptcy proceedings be begun by Lessee, LESSEE shall sublet the demised Property or if Lessee be adjudged a bankrupt, or it makes assign this Lease to an unapproved party as hereinabove provided;
(iii) If LESSEE shall make an assignment for the benefit of creditors, of file a voluntary petition in bankruptcy, or be adjudicated as bankrupt by any court and such adjudication shall not be vacated within thirty (30) days, or LESSEE takes the benefit of any insolvency act, or LESSEE be dissolved voluntarily or involuntarily or have a receiver of LESSEE's property appointed in any proceedings other than bankruptcy proceedings, and such appointment shall not be appointed for vacated within thirty (30) days after it or for the Leased Premises, or if an assignment occurs by operation of lawhas been made, then, and in upon the happening of any such eventone or more of the defaults or events specified above, this Lease shall forthwith terminate and be forfeited Lease, and the Leased Premises term hereof, shall, upon the date specified in a written notice from LESSOR, which date shall not be less than thirty (30) days after the date of mailing of such notice by LESSOR, wholly cease and all improvements thereon shall forthwith become terminate with the property same force and effect as though the date so specified were the date hereinabove first set forth as the date of Lessorexpiration of the term of this Lease; and thereupon, without compensation to Lesseeor at any time thereafter, LESSOR may re-enter said Property and without refund have possession of any royalties paid hereunderthe same and/or may recover possession thereof by legal proceeding.
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Samples: Commercial Lease Agreement (Chefs International Inc)
REMEDIES OF LESSOR. All payments hereunder required to be made by Lessee to Lessor shall be deemed and considered as rent reserved upon contract, and all remedies now or hereafter given by the laws of the State Commonwealth of West Virginia for the collection of rent are reserved to Lessor in respect of the sums so payable, and a lien is hereby reserved and imposed upon all the personal property of Lessee at any time acquired for use in connection with Lessee’s operations on the Leased Premises and remaining thereon at the time of any default hereunder, as well as also upon this Lease and the leasehold estate hereby created, to secure the payment of any and all sums. If default be made by Lessee in (i) the payment of the rentalsrentals and royalties herein reserved, royalties, taxes, wheelage fees, and any other payments or charges required to be paid under this Lease; or (b) in the performance of any of the other terms or conditions hereof required to be kept or performed by Lessee, including, without limitation, the requirement to conduct its operations in accordance with Section 6 of this Lease, to provide mine plans for approval in accordance with Section 6, to maintain insurance and indemnify Lessor as set forth in Section 5, to maintain lateral and subjacent support of the Leased Premises in accordance with Section 6, to avoid the loss of or bypassing coal in accordance with Section 6, to pay, perform and be responsible for any and all black lung benefits, to conduct its operations in compliance with applicable law, and perform any and all other covenants and obligations to be performed by Lessee hereunder; and in each or any such case, such default shall continue for a period of fifteen ten (1510) days with respect to payment of rentals and royalties, or thirty (30) days with respect to performance of any of the other terms or conditions, after written notification thereof has been posted to received by Lessee, then in such event and as often as the same occurs, Lessor may, at its option, terminate this Lease without any further notice and re-enter upon and take possession of the Leased Premises and hold and possess the same as its absolute property free and clear of any claims of, by, or through Lessee, and pursue any and all other remedies available under the laws of the State Commonwealth of West Virginia for violation of any covenant or condition hereof, and all such remedies shall be deemed cumulative and not exclusive. Notwithstanding the foregoing, should physical conditions on the Leased Premises prohibit cure of any default (other than payment of rental or royalty) by Lessee within the prescribed thirty (30) day period, then Lessee shall be required to have diligently and in good faith commenced curative measures and shall within ten (10) days of notice of default advise Lessor in detail in writing as to what physical conditions are prohibiting completion of such cure and setting forth a timetable for such cure. Such notice by Lessee to Lessor shall toll the thirty (30) day curative time until physical conditions permit completion of curative work in a diligent good faith fashion. No action by Lessor pursuant to this Section 7 shall impair the right to rental and royalties due or accrued up to the time of termination and re-entry hereunder, but none shall be charged for any period thereafter Lessee further agrees that if the interest of Lessee in the Leased Premises shall be sold on execution or judicial sale, or if bankruptcy proceedings be begun by Lessee, or if Lessee be adjudged a bankrupt, or it makes an assignment for the benefit of creditors, or a receiver be appointed for it or for the Leased Premises, or if an assignment occurs by operation of law, then, and in any such event, this Lease shall forthwith terminate and be forfeited and the Leased Premises and all improvements thereon shall forthwith become the property of Lessor, without compensation to Lessee, and without refund of any royalties paid hereunder. The symbol [***] is used to indicate that a portion of the exhibit has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portion.
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REMEDIES OF LESSOR. All payments hereunder required to be made by Lessee to Lessor shall be deemed and considered as rent reserved upon contract, and all remedies now or hereafter given by the laws of the State of West Virginia for the collection of rent are reserved to Lessor in respect of the sums so payable, and a lien is hereby reserved and imposed upon all the personal property of Lessee at any time acquired for use in connection with Lessee’s operations on the Leased Premises and remaining thereon at the time of any default hereunder, as well as also upon this Lease and the leasehold estate hereby created, to secure the payment of any and all sums. If default be made by Lessee in (i) the payment of the rentalsrentals and royalties herein reserved, royalties, taxes, wheelage fees, and any other payments or charges required to be paid under this Lease; or (b) in the performance of any of the other terms or conditions hereof required to be kept or performed by Lessee, including, without limitation, the requirement to conduct its operations in accordance with Section 6 of this Lease, to provide mine plans for approval in accordance with Section 6, to maintain insurance and indemnify Lessor as set forth in Section 5, to maintain lateral and subjacent support of the Leased Premises in accordance with Section 6, to avoid the loss of or bypassing coal in accordance with Section 6, to pay, perform and be responsible for any and all black lung benefits, to conduct its operations in compliance with applicable law, and perform any and all other covenants and obligations to be performed by Lessee hereunder; and in each or any such case, such default shall continue for a period of fifteen ten (1510) days with respect to payment of rentals and royalties, or thirty (30) days with respect to performance of any of the other terms or conditions, after written notification thereof has been posted to Lessee, then in such event and as often as the same occurs, Lessor may, at its option, terminate this Lease without any further notice and re-enter upon and take possession of the Leased Premises and hold and possess the same as its absolute property free and clear of any claims of, by, or through Lessee, and pursue any and all other remedies available under the laws of the State of West Virginia for violation of any covenant or condition hereof, and all such remedies shall be deemed cumulative and not exclusive. Notwithstanding the foregoing, should physical conditions on the Leased Premises prohibit cure of any default (other than payment of rental or royalty) by Lessee within the prescribed thirty (30) day period, then Lessee shall be required to have diligently and in good faith commenced curative measures and shall within ten (10) days of notice of default advise Lessor in detail in writing as to what physical conditions are prohibiting completion of such cure and setting forth a timetable for such cure. Such notice by Lessee to Lessor shall toll the thirty (30) day curative time until physical conditions on the Leased Premises permit completion of curative work in a diligent good faith fashion. No action by Lessor pursuant to this Section 7 shall impair the right to rental and royalties due or accrued up to the time of termination and re-entry hereunder, but none shall be charged for any period thereafter Lessee further agrees that if the interest of Lessee in the Leased Premises shall be sold on execution or judicial sale, or if bankruptcy proceedings be begun by Lessee, or if Lessee be adjudged a The symbol [***] is used to indicate that a portion of the exhibit has been omitted and filed separately with the commission. Confidential treatment has been requested with respect to the omitted portion. bankrupt, or it makes an assignment for the benefit of creditors, or a receiver be appointed for it or for the Leased Premises, or if an assignment occurs by operation of law, then, and in any such event, this Lease shall forthwith terminate and be forfeited and the Leased Premises and all improvements thereon shall forthwith become the property of Lessor, without compensation to Lessee, and without refund of any royalties paid hereunder.
Appears in 1 contract
REMEDIES OF LESSOR. All payments hereunder required to be made by Lessee to Lessor shall be deemed and considered as rent reserved upon contract, and all remedies now or hereafter given by the laws of the State of West Virginia [ ] for the collection of rent are reserved to Lessor in respect of the sums so payable, and a lien is hereby reserved and imposed upon all the personal property of Lessee at any time acquired for use in connection with Lessee’s operations on the Leased Premises and remaining thereon at the time of any default hereunder, as well as also upon this Lease and the leasehold estate hereby created, to secure the payment of any and all such sums. If default be made by Lessee in (i) the payment of the rentals, royalties, taxes, wheelage feesrentals and royalties herein reserved, and any other payments such payment is not the subject of an arbitration proceeding initiated pursuant to Section 9 hereof, and such default shall continue for a twenty (20) day period after written notification thereof has been received by Lessee, or charges required to be paid under this Lease; or (b) a material default in the performance of any of the other terms or conditions hereof required to be kept or performed by Lessee, including, without limitation, the requirement to conduct its operations in accordance with Section 6 of this Lease, to provide mine plans for approval in accordance with Section 6, to maintain insurance and indemnify Lessor as set forth in Section 5, to maintain lateral and subjacent support of the Leased Premises in accordance with Section 6, to avoid the loss of or bypassing coal in accordance with Section 6, to pay, perform and be responsible for any and all black lung benefits, to conduct its operations in compliance with applicable law, and perform any and all other covenants and obligations to be performed by Lessee hereunder; and in each or any such case, such default shall continue for a period of fifteen thirty (1530) days after written notification thereof has been posted to received by Lessee, then in such event and as often as the same occurs, Lessor may, at its option, terminate this Lease without any further notice and re-enter upon and take possession of the Leased Premises and hold and possess the same as its absolute property free and clear of any claims of, by, or through Lessee, and pursue any and all other remedies available under the laws of the State of West Virginia [ ] for violation of any covenant or condition hereof, and all such remedies shall be deemed cumulative and not exclusive. No action by Lessor pursuant to this Section 6 shall impair the Lessor's right (i) to rental and royalties due or accrued hereunder up to the time of termination and re-entry, or (ii) Minimum Annual Royalties for each of the [ ] years of the initial term of the Lease, but none shall accrue or be charged for any period thereafter. Lessee further agrees that if the interest of Lessee in the Leased Premises shall be sold on execution or judicial sale, or if bankruptcy proceedings be begun by Lessee, or if Lessee be adjudged a bankrupt, or it makes an assignment for the benefit of creditors, or a receiver be appointed for it or for the Leased Premises, or if an assignment occurs by operation of law, then, and in any such event, this Lease shall forthwith terminate and be forfeited and the Leased Premises and all improvements thereon shall forthwith become the property of Lessor, without compensation to Lessee, and without refund of any royalties paid hereunder.
Appears in 1 contract
