Common use of Tenant Default and Remedies Clause in Contracts

Tenant Default and Remedies. a. There shall be a Tenant “Event of Default” if: i. the Tenant fails to pay any Minimum Rent or Additional Rent within five (5) days after due (provided, however, as to the first two (2) instances of a missed payment in each calendar year, Tenant shall not be considered in default until written notice is provided to Tenant and ten (10) days pass after such notice), Tenant fails to pay any other monetary amount due hereunder within thirty (30) days after the giving of Notice thereof by Landlord; ii. the Tenant defaults in the performance or observance of any covenant or agreement of this Lease (other than a default involving the payment of money), which default is not cured within thirty (30) days after the giving of Notice thereof by Landlord; provided, however, that Tenant shall not be deemed to be in default if Tenant has commenced curing the default within the thirty (30) day period, and thereafter diligently pursues the completion of such cure; or iii. there is any sale of Tenant’s interest in the Premises created by this Lease made under court execution or similar process, or if Tenant shall be adjudicated bankrupt or insolvent, or if a receiver or trustee shall be appointed for its business or property and if such receiver or trustee is not removed within ninety (90) days, or if an arrangement with its creditors shall be approved by a court under the United States Bankruptcy Code, or if Tenant shall make an assignment for the benefit of creditors, or if, in any manner, Tenant’s interest under this Lease shall pass involuntarily to another by operation of law. b. Upon the occurrence of any Tenant Event of Default Landlord, upon five (5) days Notice to Tenant (except where expressly provided for in this Lease or applicable law), may do any one or more of the following: i. Elect to terminate this Lease by giving a thirty (30) days prior Notice of such election to Tenant. In such an event the Landlord may then reenter the Premises after proper notice and the application of process of law, and remove Tenant and all other person and property from the Premises, and store such property in a public warehouse or elsewhere at the cost and for the account of Tenant. In such an event, the Landlord shall be permitted to recover damages for any Minimum Rent, Additional Rent, Prorata Share not paid by the Tenant or any other rights, recovery or obligations of Tenant arising prior to said termination date, and for any other damages (excepting any lost future revenue, losses for the reserved rents, or other losses based on, or to be calculated using the term remaining under the Lease) based on the breach of the Lease prior to the termination date; and thereafter, this Lease will terminate, and the parties will have no further rights as to each other; or ii. Without terminating the Lease, elect to immediately terminate the Tenant’s possession of the Premises. Thereafter, and after proper notice and the application of process of law, the Landlord may enter into and upon the Premises or any part thereof and repossess the same. Tenant covenants and agrees that notwithstanding any such re-entry by Landlord, it shall pay and be liable for (on the days originally fixed herein for the payment thereof) amounts equal to the several installments of rent and other charges reserved as they would, under the terms of this Lease, become due if Landlord had not re-entered as aforesaid, together with all reasonable costs, fees, and expenses, including but not limited to, reasonable attorneys’ fees, costs and expenses incurred by Landlord in pursuit of its remedies hereunder; or in renting the Premises to others from time to time, and whether the Premises be relet or remain vacant in whole or in part or for a period less than the remainder of the term, or for the whole thereof, but in the event the Premises are relet by Landlord or Tenant, Tenant shall be entitled to a credit in the net amount of rent received by Landlord in reletting, after deduction of all reasonable expenses incurred in reletting the Premises and in collecting the rent in connection therewith. c. In the event of a Default as set forth in subparagraph (b) above, Landlord shall use its good faith commercially reasonable efforts to relet the Premises or any part therefore, for such term and on such terms and conditions as Landlord, in its reasonable discretion, may determine. Landlord agrees, at the reasonable cost of Tenant, to take reasonable efforts to relet the Premises, specifically including: (i) putting “For Rent” signs on the Premises; and (ii) hiring a real estate broker who shall exercise due diligence in leasing the Premises. However the Landlord is not required to promote the Tenant’s space in a manner that is disproportionate to any other vacant or leasable space. d. Except as specifically limited in subparagraph (a) of this Article, the Landlord’s pursuit of any of the foregoing remedies shall not preclude pursuit of any other remedies provided in this Lease, or any other remedies provided by law, nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damage accruing to Landlord by reason of the violation of any of the terms, provisions and covenants herein contained. Forbearance by Landlord to enforce one or more of the remedies herein provided upon the occurrence of a Tenant Event of Default shall not be deemed or construed to constitute a waiver of such Event of Default.

Tenant Default and Remedies. a. There shall be a Tenant “Event In addition to and not in limitation of Default” if: i. all other remedies available to Landlord, if the Tenant fails to pay perform or observe any Minimum Rent or Additional Rent of the covenants contained herein on its part to be observed and performed within five (5) days after due (provided, however, as to the first two (2) instances of a missed payment in each calendar year, Tenant shall not be considered in default until written notice is provided to Tenant and ten (10) days pass after such notice)notice from Landlord upon any monetary default, Tenant fails to pay any other monetary amount due hereunder or within thirty (30) days after notice from Landlord upon any nonmonetary default, then Landlord shall have the giving duty to use reasonable efforts to mitigate damages and shall have the option to pursue any one of Notice thereof the following remedies: (a) Terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any other remedy which it may have for possession, by Landlord; iilegal process, enter upon and take possession and expel or remove Tenant and any other person who may be occupying said Premises or any part thereof. In the Tenant defaults in event of termination, Landlord may declare due and payable (x) the performance or observance of any covenant or agreement of remaining rent due under this Lease less (other than y) the current market rent available to the Landlord, expressly factoring in any foreseeable time delay for re-letting the Premises as determined by a default involving the payment of moneyQualified Real Estate Appraiser (as defined in Section 5(d) above), which default is not cured within thirty but both (30x) days after and (y) shall be discounted to present value using a discount rate of the giving then prime rate of Notice thereof by Landlord; providedBank of America, however, that Tenant shall not be deemed to be in default if Tenant has commenced curing the default within the thirty (30) day period, and thereafter diligently pursues the completion of such cureN.A.; or iii. there is any sale (b) Enter upon and take possession of Tenant’s interest in the Premises created by this Lease made under court execution or similar process, or if Tenant shall be adjudicated bankrupt or insolvent, or if a receiver or trustee shall be appointed for its business or property and if such receiver or trustee is not removed within ninety (90) days, or if an arrangement with its creditors shall be approved by a court under the United States Bankruptcy Code, or if Tenant shall make an assignment for the benefit of creditors, or if, in any manner, Tenant’s interest under this Lease shall pass involuntarily to another by operation of law. b. Upon the occurrence of any Tenant Event of Default Landlord, upon five (5) days Notice to Tenant (except where expressly provided for in this Lease or applicable law), may do any one or more of the following: i. Elect to terminate this Lease by giving a thirty (30) days prior Notice of such election to Tenant. In such an event the Landlord may then reenter the Premises after proper notice and the application of process of law, and remove Tenant and all any other person and property from the Premises, and store such property in a public warehouse or elsewhere at the cost and for the account of Tenant. In such an event, the Landlord shall who may be permitted to recover damages for any Minimum Rent, Additional Rent, Prorata Share not paid by the Tenant or any other rights, recovery or obligations of Tenant arising prior to said termination date, and for any other damages (excepting any lost future revenue, losses for the reserved rents, or other losses based on, or to be calculated using the term remaining under the Lease) based on the breach of the Lease prior to the termination date; and thereafter, this Lease will terminate, and the parties will have no further rights as to each other; or ii. Without terminating the Lease, elect to immediately terminate the Tenant’s possession of the Premises. Thereafter, and after proper notice and the application of process of law, the Landlord may enter into and upon occupying the Premises or any part thereof and repossess the same. Tenant covenants and agrees that notwithstanding any such re-entry by Landlordthereof, it shall pay and be liable for (on the days originally fixed herein for the payment thereof) amounts equal to the several installments of rent and other charges reserved as they would, under the terms of without terminating this Lease, become due if in which event Landlord had shall use Landlord's best efforts to relet the Premises on such terms as Landlord shall deem advisable and Landlord shall receive the rent thereof. Tenant hereby agrees to pay Landlord's unamortized costs for leasing commissions for this Lease but not re-entered as aforesaid, together with all reasonable costs, feesLandlord’s costs to relet the Premises since such costs are a normal cost of doing business and will be amortized over the term of the new lease. Landlord shall apply the rent received first to the Landlord's then unamortized leasing commissions costs for this Lease, and expensessecondly to any rent due Landlord from Tenant. Tenant agrees to pay to Landlord on demand any deficiency in rent that may arise. Notwithstanding any such reletting without termination, including but not limited toLandlord may, at any time thereafter elect to terminate this Lease for a previous uncured event of default. In addition, Landlord shall be entitled to recover from Tenant all reasonable attorneys’ fees, court costs and expenses incurred by Landlord in pursuit of its remedies hereunder; or in renting the Premises to others from time to time, and whether the Premises be relet or remain vacant in whole or in part or for a period less than the remainder of the term, or for the whole thereof, but in the event the Premises are relet by Landlord or Tenant, Tenant shall be entitled to a credit in the net amount of rent received by Landlord in reletting, after deduction of all reasonable other expenses incurred in reletting the Premises and in collecting the rent in connection therewith. c. In the event of a Default as set forth in subparagraph (b) above, Landlord shall use its good faith commercially reasonable efforts to relet the Premises or with any part therefore, for such term and on such terms and conditions as Landlord, in its reasonable discretion, may determine. Landlord agrees, at the reasonable cost default of Tenant, to take reasonable efforts to relet the Premises, specifically including: (i) putting “For Rent” signs on the Premises; and (ii) hiring a real estate broker who shall exercise due diligence in leasing the Premises. However the Landlord is not required to promote the Tenant’s space in a manner that is disproportionate to any other vacant or leasable space. d. Except as specifically limited in subparagraph (a) of this Article, the Landlord’s pursuit of any of the foregoing remedies shall not preclude pursuit of any other remedies provided in this Lease, or any other remedies provided by law, nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damage accruing to Landlord by reason of the violation of any of the terms, provisions and covenants herein contained. Forbearance by Landlord to enforce one or more of the remedies herein provided upon the occurrence an event of a Tenant Event of Default default shall not be deemed or construed to constitute a waiver of any such Event of Defaultviolation or default.

Tenant Default and Remedies. a. There 18.1 In addition to the breaches/defaults specified elsewhere in this Lease, the occurrence of any of the following shall be constitute a Tenant “Event material breach and default of Default” ifthis Lease by Tenant: i. the (a) Any failure by Tenant fails to pay when due any Minimum Rent or Additional Rent within five (5) days after due (provided, however, as to of the first two (2) instances of a missed payment in each calendar year, rent required be paid by Tenant shall not be considered in default until written notice is provided to Tenant and hereunder where such failure continues for ten (10) days pass after such notice), the same is due. (b) A failure by Tenant fails to pay observe and perform any other monetary amount due hereunder within provision of this Lease to be observed or performed by Tenant where such failure continues for thirty (30) days after written notice thereof from Landlord provided that if the giving nature of Notice thereof by Landlord; ii. the Tenant defaults in the performance or observance of any covenant or agreement of this Lease (other than a default involving the payment of money), which such default is such that the same cannot with due diligence be cured within thirty (30) days after the giving of Notice thereof by Landlord; provided, however, that said period Tenant shall not be deemed to be in default if Tenant has commenced it shall within said period commence such curing the default within the thirty (30) day period, and thereafter diligently pursues the completion of proceed to complete such cure; or. iii. there is (c) The abandonment or vacation of the Premises. (d) Tenant or any sale guarantor of Tenant’s interest 's obligations hereunder shall generally not pay its debts as they become due or shall admit in the Premises created by this Lease made under court execution writing its inability to pay its debts or similar process, or if Tenant shall be adjudicated bankrupt or insolvent, or if a receiver or trustee shall be appointed for its business or property and if such receiver or trustee is not removed within ninety (90) days, or if an arrangement with its creditors shall be approved by a court under the United States Bankruptcy Code, or if Tenant shall make an a general assignment for the benefit of creditors; or Tenant or any such guarantor shall commence any case, proceeding or other action seeking to have an order for relief on its behalf as debtor or to adjudicate it as bankrupt of insolvent, or ifseeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property; or Tenant or any such guarantor shall take any corporate action to authorize any of the action set forth above in this paragraph. (e) If in any mannercase, proceeding or other action against Tenant or any guarantor of Tenant’s interest 's obligations hereunder shall be commenced seeking to have an order for relief entered against it as debtor or to adjudicate it as bankrupt or insolvent or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy insolvency, reorganization or relief of debtors or seeking appointment of receiver trustee custodian or other similar appointment of a receiver trustee custodian or other similar official for it or for all or any substantial part of its property and such ease, proceeding or other action (i) results in the entry of any order for relief against it which is not fully satisfied within seven (7) business days after entry thereof or (ii) shall remain undismissed for a period of forty-five (45) days, Landlord may at its election and without further notice or demand, if permitted by law enter upon the Premises, and at its discretion cancel this Lease shall pass involuntarily and thereafter recover any past due rental and damages arising from its loss of rental calculated in the amount equal to another by operation the present value of lawthe rental obligation herein stated less the present value of the fair rental value of the Premises which it can obtain for the remainder of the stated Premises. b. Upon 18.2 In the occurrence event of any default as aforesaid by Tenant, then in addition to any and all other remedies available at law or in equity, Landlord shall have the right to immediately terminate this Lease and all rights Tenant Event of Default Landlord, upon five (5) days Notice hereunder by giving written notice to Tenant (except where expressly provided for in this Lease or applicable law), may of its election to do any one or more of the following: i. Elect so. If Landlord shall elect to terminate this Lease by giving a thirty then it may recover from Tenant: (30a) days prior Notice The worth at the date of judgment of the unpaid rent payable hereunder which had been earned at the date of such election termination; plus (b) The worth at the date of judgment of the amount by which the unpaid rent would have been earned after termination and until the time of the award exceeds the amount of such rental loss which Tenant proves could have been reasonably avoided; plus (c) The worth at the date of judgment of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of such rental loss which Tenant proves could be reasonably avoided; (d) Plus any other amount necessary to compensate Landlord for all detriment proximately caused by Tenant. In such an event 's failure to perform its obligations hereunder or which, in the Landlord may then reenter the Premises after proper notice and the application ordinary course of process of lawaffairs would likely result therefrom, and (e) At Landlord's election such other amounts in addition to or in lieu of the foregoing as may be permitted by applicable Idaho law from time to time. 18.3 As used in paragraphs (a) and (b) above, the "worth at the date of judgment" is computed by allowing interest at the rate of twelve percent (12%) per annum. As used in paragraph (c) above, the "worth at the date of judgment" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one percent (1%). 18.4 In the event of any default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the demised Premises and remove Tenant all property and all other person and property from the Premisespersons therefrom, and store any such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant. In such an event, the . 18.5 If Landlord shall be permitted elect to recover damages for re-enter as above provided or shall take possession of said Premises pursuant to legal proceedings or pursuant to any Minimum Rent, Additional Rent, Prorata Share not paid notice provided by the Tenant or any other rights, recovery or obligations of Tenant arising prior to said termination datelaw, and for any other damages (excepting any lost future revenue, losses for the reserved rents, or other losses based on, or if Landlord has not elected to be calculated using the term remaining under the Lease) based on the breach of the Lease prior to the termination date; and thereafter, terminate this Lease will terminate, and the parties will have no further rights as to each other; or ii. Without terminating the Lease, elect to immediately terminate the Tenant’s possession of the Premises. Thereafter, and after proper notice and the application of process of law, the Landlord may enter into and upon either recover all rental as it becomes due or relet the demised Premises or any part or parts thereof for such term or terms and repossess the same. Tenant covenants and agrees that notwithstanding any upon such re-entry by provisions as Landlord, it in its sole judgment may deem advisable and shall pay have the right to make repairs to and alterations of the demised Premises. 18.6 If Landlord shall elect to relet the demised Premises, then rentals received by Landlord therefrom shall be liable for applied as follows: (on the days originally fixed herein for a) To the payment thereofof any indebtedness other than rent due hereunder from Tenant; (b) amounts equal to To the several installments payment of rent and other charges reserved as they would, under the terms of this Lease, become due if Landlord had not re-entered as aforesaid, together with all reasonable costs, fees, and expenses, including but not limited to, reasonable attorneys’ fees, costs and expenses incurred by Landlord in pursuit of its remedies hereunderconnection with such re-entry and reletting; or in renting (c) To the Premises to others from time to time, and whether the Premises be relet or remain vacant in whole or in part or for a period less than the remainder payment of the term, or for the whole thereof, but in the event the Premises are relet by Landlord or Tenant, Tenant shall be entitled to a credit in the net amount of rent received by Landlord in reletting, after deduction of all reasonable expenses incurred in reletting the Premises and in collecting the rent in connection therewith. c. In the event of a Default as set forth in subparagraph (b) above, Landlord shall use its good faith commercially reasonable efforts to relet the Premises or any part therefore, for such term and on such terms and conditions as Landlord, in its reasonable discretion, may determine. Landlord agrees, at the reasonable cost of Tenant, any alterations of and repairs to take reasonable efforts to relet the Premises, specifically including: (i) putting “For Rent” signs on the Premises; and (ii) hiring a real estate broker who shall exercise due diligence in leasing the Premises. However the Landlord is not required to promote the Tenant’s space in a manner that is disproportionate to any other vacant or leasable space. d. Except as specifically limited in subparagraph (a) of this Article, the Landlord’s pursuit of any of the foregoing remedies shall not preclude pursuit of any other remedies provided in this Lease, or any other remedies provided by law, nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damage accruing to Landlord by reason of the violation of any of the terms, provisions and covenants herein contained. Forbearance by Landlord to enforce one or more of the remedies herein provided upon the occurrence of a Tenant Event of Default shall not be deemed or construed to constitute a waiver of such Event of Default.

Tenant Default and Remedies. a. There shall be a “Tenant “Event of Default” if: i. subject to Article 5, the Tenant fails fails: to pay any Minimum Rent or Additional Rent within five (5) days after due (provided, however, as to the first two (2) instances of a missed payment in each calendar year, Tenant shall not be considered in default until written notice is provided to Tenant and ten (10) days pass after such notice); or, Tenant fails to pay any other monetary amount due hereunder within thirty (30) days after the giving of Notice thereof by Landlord; ii. the Tenant defaults in the performance or observance of any covenant or agreement of this Lease (other than a default involving the payment of money), which default is not cured within thirty (30) days after the giving of Notice thereof by Landlord; provided, however, that Tenant shall not be deemed to be in default if Tenant has commenced curing the default within the thirty (30) day period, and thereafter diligently pursues the completion of such cure; or iii. there is any sale of Tenant’s interest in the Premises created by this Lease which is made under court execution or similar process, or if Tenant shall be is adjudicated bankrupt or insolvent, or if a receiver or trustee shall be appointed for its business or property and if such receiver or trustee is not removed within ninety (90) days, or if an arrangement with its creditors shall be approved by a court under the United States Bankruptcy Code, or if Tenant shall make an assignment for the benefit of creditors, or if, in any manner, Tenant’s interest under this Lease shall pass involuntarily to another by operation of law. b. Upon the occurrence of any Tenant Event of Default Landlord, upon and after the giving of a five (5) days day written Notice to Tenant (except where expressly provided for in this Lease or applicable law), Landlord may do any one or more of the following: i. Elect to terminate this Lease by giving a thirty (30) days prior Notice of such election to Tenant. In such an event the Landlord may then reenter the Premises Building and Property, after proper notice and the application of process of law, and remove Tenant and all other person and property from the PremisesBuilding and Property, and store such property in a public warehouse or elsewhere at the cost and for the account of Tenant. In such an event, the Landlord shall be permitted to recover damages for any Minimum Rent, Additional Rent, Rent and Prorata Share not paid by the Tenant or any other rights, recovery or obligations of Tenant arising prior to said termination date, and for any other damages (excepting any lost future revenue, losses for the reserved rents, or other losses based on, or to be calculated using the term remaining under the Lease) based on the breach of the Lease prior to the termination date; and thereafter, this Lease will terminate, and the parties will have no further rights as to each other; or ii. Without terminating the Lease, elect to immediately terminate the Tenant’s possession of the PremisesBuilding and Property. Thereafter, and after proper notice and the application of process of law, the Landlord may enter into and upon the Premises Building and Property or any part thereof and repossess the same. Tenant covenants and agrees that notwithstanding any such re-entry by Landlord, it shall pay and be liable for (on the days originally fixed herein for the payment thereof) amounts equal to the several installments of rent and other charges reserved as they would, under the terms of this Lease, become due if Landlord had not re-entered as aforesaid, together with all reasonable costs, fees, and expenses, including but not limited to, reasonable attorneys’ fees, costs and expenses incurred by Landlord in pursuit of its remedies hereunder; or in renting the Premises Building and Property to others from time to time, and whether the Premises Building and Property be relet or remain vacant in whole or in part or for a period less than the remainder of the term, or for the whole thereof, but in the event the Premises Building and Property are relet by Landlord or Tenant, Tenant shall be entitled to a credit in the net amount of rent received by Landlord in reletting, after deduction of all reasonable expenses incurred in reletting the Premises Building and Property and in collecting the rent in connection therewith. c. In the event of a Default as set forth in subparagraph (b) above, Landlord shall use its good faith commercially reasonable efforts to relet the Premises Building and Property or any part therefore, for such term and on such terms and conditions as Landlord, in its reasonable discretion, may determine. Landlord agrees, at the reasonable cost of Tenant, to take reasonable efforts to relet the PremisesBuilding and Property, specifically including: (i) putting “For Rent” signs on the PremisesBuilding and Property; and (ii) hiring a real estate broker who shall exercise due diligence in leasing the Premises. However the Landlord is not required to promote the Tenant’s space in a manner that is disproportionate to any other vacant or leasable spaceBuilding and Property. d. Except as specifically limited in subparagraph (a) of this Article, the Landlord’s pursuit of any of the foregoing remedies shall not preclude pursuit of any other remedies provided in this Lease, or any other remedies provided by law, nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damage accruing to Landlord by reason of the violation of any of the terms, provisions and covenants herein contained. Forbearance by Landlord to enforce one or more of the remedies herein provided upon the occurrence of a Tenant Event of Default shall not be deemed or construed to constitute a waiver of such Tenant Event of Default.