Tenants Default and Landlords Remedies. This Lease is made on condition that if Tenant should neglect or fail to pay the rent due hereunder within ten (10) days after receipt by Tenant of notice from Municipality of such nonpayment, or if the Tenant shall neglect or fail to perform or observe any of the other terms, provisions, conditions or covenants herein contained and on the Tenant’s part to be performed or observed for a period of thirty (30) days after receipt by the Tenant of notice of such neglect or failure; provided that Tenant shall have such extended period as may be required beyond thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and Tenant commences the cure within the initial thirty (30) day period and thereafter continuously and diligently pursues the cure to completion,, or if any assignment shall be made of the Tenant’s property for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer shall be appointed to take charge of all or any part of the Tenant’s property by a Court of competent jurisdiction, or if a petition is filed by the Tenant under any bankruptcy laws for relief or composition of its debts, or if the Tenant is declared bankrupt then, and in any of said cases, the Municipality lawfully may immediately or at any time thereafter and without demand or notice enter upon the Premises or any part thereof in the name of the whole and repossess the same, including all equipment and trade fixtures therein and/or annexed thereto, as of the Municipality’s former estate and expel the Tenant and those claiming through or under the Tenant and remove its effects, forcibly if necessary, without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or proceeding breach of covenants, and upon such entry, may terminate this Lease; and the Tenant covenants in case of such termination to pay and be liable for, on the days originally fixed for the payment thereof, amounts equal to the several installments of rent and other charges reserved as would under the terms of this Lease become due for the remainder of the then current term if this Lease had not been terminated or if Municipality had not entered or reentered as aforesaid, and the Tenant covenants to pay and be liable for all losses and damages suffered by reason of such termination, including, but not limited to, the reasonable documented costs of legal counsel retained by the Municipality and all reasonable documented expenses of the Municipality for enforcement hereunder. In addition to all other legal and equitable, remedies, Landlord shall have the right to remove equipment/structures at Tenant’s expense, and the right to declare equipment/structures abandoned and take ownership thereof, all without liability to Landlord. Landlord shall also have the right to declare any surety forfeited and to apply same to any reasonable documented expenses Landlord incurs on account of Tenant’s default.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
Tenants Default and Landlords Remedies. This 24.1 An event of default (“Event of Default”) shall exist under this Lease if:
(a) Tenant fails to pay any rent or any other charges due and payable by Tenant under this Lease when due and such failure continues for more than five (5) days following Tenant’s receipt of written notice thereof from Landlord (provided, however, that no such notice shall be required in the event that Landlord has given two (2) such notices to Tenant within the preceding 365 days);
(b) Tenant’s estate created by this Lease is made on condition that if taken by execution or other legal process;
(c) Tenant should neglect is adjudicated bankrupt or fail insolvent according to pay the rent due hereunder within ten (10) days after receipt by Tenant of notice from Municipality of such nonpayment, law; or if the Tenant shall neglect or fail to perform or observe any of the other terms, provisions, conditions or covenants herein contained and on the Tenant’s part to be performed or observed for a period of thirty (30) days after receipt by the Tenant of notice of such neglect or failure; provided that Tenant shall have such extended period as may be required beyond thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and Tenant commences the cure within the initial thirty (30) day period and thereafter continuously and diligently pursues the cure to completion,, or if any assignment shall be is made of the Tenant’s property of Tenant for the benefit of creditors, ; or if a receiver, guardian, conservator, trustee in voluntary bankruptcy or other similar officer shall be is appointed to take charge of all or any substantial part of the Tenant’s property by a Court court of competent jurisdiction, ; or if a petition is filed by for the reorganization of Tenant or any guarantor of Tenant’s obligations hereunder under any bankruptcy laws provisions of the Bankruptcy Act now or hereafter enacted, and such proceeding is not dismissed within 60 days after it is begun; or Tenant files a petition for relief or composition of its debtsreorganization, or if the Tenant is declared bankrupt then, and in for arrangements under any of said cases, the Municipality lawfully may immediately or at any time thereafter and without demand or notice enter upon the Premises or any part thereof in the name provisions of the whole Bankruptcy Act now or hereafter enacted and repossess providing a plan for a debtor to settle, satisfy or extend the same, including all equipment and trade fixtures therein and/or annexed thereto, as of the Municipality’s former estate and expel the Tenant and those claiming through or under the Tenant and remove its effects, forcibly if necessary, without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or proceeding breach of covenants, and upon such entry, may terminate this Lease; and the Tenant covenants in case of such termination to pay and be liable for, on the days originally fixed time for the payment thereof, amounts equal of debts; or
(d) Tenant fails to the several installments perform or observe any of rent and its other charges reserved as would obligations under the terms of this Lease become due for within thirty (30) days after written notice from Landlord to Tenant specifying the remainder failure, provided, however, if such obligation(s) cannot reasonably be performed or observed within said thirty (30) day period, Tenant shall not be in default so long as Tenant has commenced curative action and is continuously and diligently prosecuting such curative action to completion and same is capable of completion within ninety (90) days.
24.2 If an Event of Default shall exist hereunder, in addition to any and all other rights or remedies of Landlord in this Lease or at law or in equity, Landlord may do any or all of the then current term if this Lease had not been terminated following, without further notice or if Municipality had not entered demand to Tenant or reentered as aforesaid, and the Tenant covenants to pay and be liable for all losses and damages suffered by reason of such termination, including, but not limited to, the reasonable documented costs of legal counsel retained by the Municipality and all reasonable documented expenses of the Municipality for enforcement hereunder. In addition to all any other legal and equitable, remedies, Landlord shall have the right to remove equipment/structures at Tenant’s expense, and the right to declare equipment/structures abandoned and take ownership thereof, all without liability to Landlord. Landlord shall also have the right to declare any surety forfeited and to apply same to any reasonable documented expenses Landlord incurs on account of Tenant’s default.person:
Appears in 1 contract
Samples: Lease Agreement (Gene Logic Inc)
Tenants Default and Landlords Remedies. This 29.1 Tenant will be in default under the Lease is made on condition that if any of the following occurs, and same shall be deemed an “Event of Default”:
(a) If Tenant should neglect or fail fails to pay the rent due hereunder Minimum Monthly Rent or make any other payment required by the Lease within ten three (103) business days after receipt Landlord sends Tenant a written notice or demand for payment. Landlord: 10 Tenant:
(b) If Tenant assigns the Lease or mortgages its interest in the Lease or sublets any part of the Premises without first obtaining Landlord’s written consent, as required by Article 24.
(c) If Tenant of notice from Municipality of such nonpaymentabandons the Premises, or if the Tenant shall neglect or fail ceases to perform or observe any of the other terms, provisions, conditions or covenants herein contained and operate its business on the Tenant’s part to be performed or observed for a period of thirty (30) days after receipt by the Tenant of notice of such neglect or failure; provided that Tenant shall have such extended period as may be required beyond thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and Tenant commences the cure within the initial thirty (30) day period and thereafter continuously and diligently pursues the cure to completion,Premises, or if becomes bankrupt or insolvent, or makes any general assignment shall be made of the Tenant’s all or a substantial part of its property for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer shall be receiver is appointed to operate Tenant’s business or to take charge possession of all or a substantial part of Tenant’s property.
(d) If a lien attaches to the Lease or to Tenant’s interest in the Premises, and Tenant fails to post a bond or other security or to have the lien released within ten (10) days of its notification thereof, or if a mortgagee institutes proceedings to foreclose its mortgage against Tenant’s leasehold interest or other property and Tenant fails to have the foreclosure proceedings dismissed within ten (10) calendar days after the entry of any judgment or order declaring the mortgage to be valid and Tenant to be in default on the obligation secured thereby, or directing enforcement of the mortgage.
(e) If Tenant fails to maintain any of the insurance as required by the Lease.
(f) If Tenant breaches any other provision of the Lease and fails to cure the breach within fifteen (15) calendar days after Landlord sends it written notice of the breach, or if the breach cannot be cured within fifteen (15) calendar days, then if Tenant does not proceed with reasonable diligence to cure the breach within such additional time as may be reasonably necessary under the circumstances, not to exceed sixty (60) calendar days.
29.2 If Tenant is in default, then Landlord may take any one or more of the following actions:
(a) Landlord may re-enter and take possession of all or any part of the Premises and remove Tenant and any person claiming under Tenant from the Premises, using reasonable force, if necessary, and without committing a trespass or becoming liable for any loss or damage that may be occasioned thereby. Landlord may also change the locks to the Premises without notice at Tenant’s property expense. Re-entry and possession of the Premises will not by themselves terminate the Lease.
(b) Landlord may remove any property, including fixtures, from the Premises and store the same at Tenant’s expense in a Court of competent jurisdictionwarehouse or any other location, or if a petition is filed by Landlord may lease the Tenant under any bankruptcy laws for relief property on the Premises pending sale or composition of its debts, or if other disposition. If Landlord leaves the Tenant is declared bankrupt then, and in any of said cases, the Municipality lawfully may immediately or at any time thereafter and without demand or notice enter upon property on the Premises or stores it at another location owned or controlled by Landlord, then Landlord may charge Tenant a reasonable fee for storing and handling the property comparable to what Landlord would have had to pay to a third party for such services. Landlord will not be liable under any part thereof circumstance to Tenant or to anyone else for any damage to the property. Landlord may proceed to sell Tenant’s property, which shall be sold in accordance with the name laws of the whole state in which the Premises are located.
(c) Landlord may collect any rents or other payments that become due from any subtenant, concessionaire or licensee, and repossess may in its own name or in Tenant’s name bring suit for such amounts, and settle any claims therefore, without approving the same, including all equipment and trade fixtures therein and/or annexed thereto, as terms of the Municipalitysublease or Tenant’s former estate and expel agreement with the Tenant and those claiming through concessionaire or under the Tenant and remove its effects, forcibly if necessary, without being deemed guilty of any manner of trespass licensee and without prejudice to Landlord’s right to terminate the sublease or agreement without cause and remove the subtenant, concessionaire or licensee from the Premises.
(d) Landlord may relet the Premises at whatever rent and on whatever terms and conditions it deems advisable. The term of any remedies which might otherwise new lease may be used shorter or longer than the remaining term of this Lease. In reletting the Premises, Landlord may make any alterations or repairs to the Premises it feels necessary or desirable; may subdivide the Premises into more than one unit and lease each portion separately; may sell Tenant’s improvements, fixtures and other property located on the Premises to the new tenant, or include such improvements, fixtures and property as part of the Premises without additional cost; may advertise the Premises for arrears sale or lease; may hire brokers or other agents; and, may do anything else it deems necessary or helpful in reletting the Premises. Tenant will be liable to Landlord for all costs and expenses of rent or proceeding breach of covenantsthe reletting including but not limited to rental concessions to the new tenant, broker’s commissions and tenant improvements, and upon such entrywill remain liable for the Minimum Monthly Rent and all other charges arising under the Lease, less any income received from the new tenant, unless the Lease is terminated as set forth below. In the event an existing tenant of the project is moved into the Premises, Tenant will be liable for the damages suffered by Landlord (as calculated herein) as the result of the vacancy of the premises occupied by the existing tenant.
(e) Landlord may terminate this the Lease at any time after Tenant defaults by sending a written notice to Tenant expressly stating that the Lease is being terminated. Termination will be effective on the date of the notice or on any other date set forth in the notice. Until Landlord sends Tenant such a notice, the Lease will remain in full force and effect, and Tenant will remain liable for paying the Minimum Monthly Rent and other charges that come due under the Lease and for performing all other terms and conditions of the Lease; . No other action by Landlord, including repossession of the Premises, removing or selling Tenant’s separate property, reletting the Premises, or filing suit for possession or for damages, will terminate the Lease or release Tenant from its continuing liability for complying with the terms and conditions. Landlord: 11 Tenant:
(f) Landlord may recover from Tenant all costs and expenses Landlord incurs as a direct or indirect consequence of Tenant’s breach, including the cost of storing and selling Tenant’s property, reletting the Premises, and bringing suit against Tenant for possession or damages. If Landlord made or paid for any improvements to the Premises, or granted Tenant any improvement allowance or credit against the Minimum Monthly Rent or other charges due hereunder for Tenant’s improvements, then Landlord shall also be entitled to recover the unamortized portion of the cost of such improvements or the amount of such allowance or credit, determined by multiplying the total amount of such cost or allowance or credit by a fraction, the denominator of which is the total number of months of the initial Lease Term and the numerator of which is the number of months of the Lease Term remaining at the time of Tenant’s default. Also, if the Lease provides for any months for which no Minimum Monthly Rent or a reduced Minimum Monthly Rent is payable, or for any other rent concession to Tenant, then, upon default, Tenant covenants in case of such termination to pay and be shall become liable for, on the days originally fixed for the payment thereoffull amount of the Minimum Monthly Rent (or other rent concession), amounts equal plus applicable taxes, for such months, and Landlord shall be entitled to recover as additional rent the several installments of amount that would have been payable by Tenant for such months if the Minimum Monthly Rent provided for herein had been payable by Tenant throughout the entire Lease Term. Unless Landlord terminates the Lease, Tenant will also remain liable for any difference between the Minimum Monthly Rent and other charges called for by the Lease and the rent and other charges reserved as collected by Landlord from any new tenant. For any month in which Landlord collects less from a successor tenant than is payable under this Lease, Landlord may demand that Tenant immediately make up the difference, and Landlord may bring suit against Tenant if Tenant fails to do so. If Landlord does terminate the Lease, then Tenant will no longer be liable on a continuing monthly basis for the Minimum Monthly Rent and other charges that would have become due under the terms of this Lease become due for the remainder of the then current term if this Lease had not been terminated or if Municipality had not entered or reentered as aforesaidthereafter, and the but Tenant covenants to pay and be will remain liable for all losses and damages suffered by reason sums accrued under the Lease to the date of such termination, including, but not limited to, the reasonable documented as well as for all costs of legal counsel retained and expenses incurred by the Municipality and all reasonable documented expenses of the Municipality for enforcement hereunder. In addition to all other legal and equitable, remedies, Landlord shall have the right to remove equipment/structures at Tenant’s expenseLandlord, and the right to declare equipment/structures abandoned and take ownership thereofany other damages sustained by Landlord, all without liability to Landlord. Landlord shall also have the right to declare any surety forfeited and to apply same to any reasonable documented expenses Landlord incurs on account as a consequence of Tenant’s defaultbreach. Also Landlord may recover from Tenant the difference between the present value at the date of termination to the end of the Lease Term and the present value of the Minimum Monthly Rent and other charges Landlord could have obtained if Landlord had rented the Premises for the same period at its fair rental value at the end of termination. The present value of the amounts referred to in the preceding sentence shall be computed using a discount rate equal to the prime rate charged by Xxxxx Fargo Bank (or its successor) at the date of termination.
(g) Landlord may xxx Tenant for possession of the Premises, for damages for breach of the Lease, and for other appropriate relief, either in the same or in separate actions. Landlord may recover all costs and expenses it incurs in any such suit, including reasonable attorneys’ fees.
(h) Landlord may exercise any other right or remedy available at law or in equity for breach of contract, damages or other appropriate relief. The rights and remedies described herein are cumulative, and Landlord’s exercise of any one right will not preclude the simultaneous exercise of any other right or remedy.
Appears in 1 contract
Tenants Default and Landlords Remedies. This Lease is made on condition that if A. In the event Tenant should neglect or fail fails to pay the rent due hereunder any monthly installment of Base Rent or any other sum required to be paid under this Lease and such failure is not cured within ten (10) days after receipt by from the date Tenant of receives written notice from Municipality of such nonpayment, Landlord shall, in addition to its other remedies provided by law and in equity, have the remedies set forth in Subparagraph 18(C) below.
B. If Tenant fails to perform any of its obligations under this Lease other than the payment of rent or any other obligation involving the payment of money, Landlord shall give Tenant written notice of such default, and if the Tenant shall neglect or fail to perform or observe any of the other terms, provisions, conditions or covenants herein contained and on the Tenant’s part to be performed or observed for a period of cure such default within thirty (30) days after the receipt by the Tenant of notice of such neglect notice, or failure; provided that Tenant shall have such extended period as may be required beyond thirty (30) days if the nature default is of the cure is such that it reasonably requires a character as to require more than thirty (30) days and to cure, then if Tenant commences the cure shall fail within the initial said thirty (30) day period to commence and thereafter continuously proceed diligently to cure such default, then and diligently pursues in either of such events, Landlord shall, in addition to its other remedies provided at law or in equity, have the remedies set forth in Paragraph 18(C) below. After notice to Tenant and failure of Tenant to commence curing such default within the notice period, Landlord may (at its option and in addition to its other legal remedies) cure to completion,such default for the account of Tenant, or if and any assignment sums expended by Landlord, together with interest thereon at the rate of ten (10%) percent per annum until paid, shall be made additional rent and shall be paid by Tenant with the next monthly installment of Base Rent.
C. In the Tenant’s event Tenant shall be in default under Subparagraph 18(A) or 18(B) above, then Landlord, in addition to all other remedies provided under this Lease, at law or in equity, shall have the immediate right to re-enter the Building and Premises to remove all persons and property within the Building and Premises. Such property may be removed and stored in a public warehouse or elsewhere at the cost of, and for the benefit of creditorsaccount of, Tenant. Should Landlord elect to re-enter or if a receivertake possession pursuant to legal proceedings or any notice provided for by law, trustee in bankruptcy or similar officer Landlord shall be appointed either terminate this Lease or, without terminating this Lease, take commercially reasonable actions to take charge of relet all or any part portion of the Building and/or Premises on commercially reasonable terms and conditions and take other reasonable actions to mitigate Tenant’s damages. The proceeds of such reletting shall be applied, first, to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder; second, to the payment of any reasonable costs of such reletting, including broker’s fees and the cost of any reasonable alterations and repairs to the Building; third, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Landlord and applied toward the payment of future rent as it becomes due and payable. Should the proceeds of such reletting during any month be less than the monthly installment of Base Rent required under this Lease, then Tenant shall during each such month pay the deficiency to Landlord. In the event any rentals or other sums received from reletting exceed those sums to be paid by Tenant, such excess shall belong to and be the sole property of Landlord. No such re-entry or taking possession of the Building and/or Premises, or acceptance of the keys to the Building by Landlord, shall be construed as an election to terminate this Lease unless Landlord provides Tenant with written notice of its election to terminate the Lease, or unless the termination is decreed by a Court court of competent jurisdiction. If Landlord elects to relet the Building and/or Premises without terminating the Lease, or if a petition is filed by the Tenant under any bankruptcy laws for relief or composition of its debts, or if the Tenant is declared bankrupt then, and in any of said cases, the Municipality lawfully Landlord may immediately or at any time thereafter elect to terminate this Lease for any previous breach.
D. Tenant shall pay all reasonable attorneys' fees and all other expenses incurred by Landlord in enforcing any of Tenant’s obligations under this Lease, or in any litigation in which Landlord shall, without demand or notice enter upon the Premises or any part thereof in the name of the whole and repossess the sameits fault, including all equipment and trade fixtures therein and/or annexed thereto, as of the Municipality’s former estate and expel the Tenant and those claiming become involved through or under the Tenant and remove its effects, forcibly if necessary, without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or proceeding breach of covenants, and upon such entry, may terminate this Lease; and the Tenant covenants in case of such termination to pay and be liable for, on the days originally fixed for the payment thereof, amounts equal to the several installments of rent and other charges reserved as would under the terms of this Lease become due for the remainder of the then current term if this Lease had not been terminated or if Municipality had not entered or reentered as aforesaid, and the Tenant covenants to pay and be liable for all losses and damages suffered by reason of such termination, including, but not limited to, the reasonable documented costs of legal counsel retained by the Municipality and all reasonable documented expenses of the Municipality for enforcement hereunder. In addition to all other legal and equitable, remedies, Landlord shall have the right to remove equipment/structures at Tenant’s expense, and the right to declare equipment/structures abandoned and take ownership thereof, all without liability to Landlord. Landlord shall also have the right to declare any surety forfeited and to apply same to any reasonable documented expenses Landlord incurs on account of Tenantthis Lease.
E. All Landlord’s defaultrights and remedies shall be cumulative and none shall be exclusive of any other rights and remedies allowed by law or in equity.
Appears in 1 contract
Tenants Default and Landlords Remedies. This 29.1 The following shall constitute a default by Tenant under this Lease: (a) if Tenant fails to pay any installment of the Minimum Monthly Rent or additional rent herein provided or any other sum required by this Lease to be paid to Landlord, or any part thereof, within ten (10) days of the time or in the manner provided; or (b) if Tenant fails to perform any other covenants or obligations to be performed by Tenant under this Lease and such failure shall continue for ten (10) days after notice thereof from Landlord to Tenant; or (c) if a petition or proceeding under the Federal Bankruptcy Act or any other applicable state or federal law relating to bankruptcy or reorganization or other relief for debtors is filed or commenced by or against Tenant or any guarantor of this Lease, and if against Tenant, said proceedings shall not be dismissed within ten (10) days following commencement thereof; or (d) if Tenant or any guarantor of this Lease is made adjudged insolvent, makes an assignment for the benefit of its creditors or enters into an arrangement with its creditors; or (e) if a writ of attachment or execution is levied on condition that the leasehold estate hereby created and is not released or satisfied within ten (10) days thereafter; or (f) if a receiver is appointed in any proceeding or action to which Tenant is a party with authority to take possession or control of the Premises or the business conducted thereon by Tenant or the property of any guarantor of this Lease and such receiver is not discharged within a period of ten (10) days after his appointment; or (g) if Tenant should neglect abandons or fail vacates the Premises (abandonment shall be presumed if the Premises are not occupied by at least two (2) employees of Tenant four (4) days a week, six (6) hours a day).
29.2 Upon a default of Tenant as defined in Section 29.1, Landlord or ------------ Landlord's agents and employees shall have the right and option to:
(a) Prosecute and maintain an action or actions, as often as Landlord deems advisable, for collection of Minimum Monthly Rent, additional rent, other charges, and damages as the same accrue, without entering into possession and without terminating this Lease. No judgment obtained shall constitute a merger or otherwise bar prosecution of subsequent actions for Minimum Monthly Rent, additional rent, other charges, and damages as they accrue.
(b) Immediately or at any time thereafter reenter and take possession of the Premises and remove Tenant or Tenant's Permittees and any or all of their property from the Premises. Reentry and removal may be effected by summary proceedings or any other action or proceedings at law, by force or otherwise. Landlord shall not be liable in any way in connection with any action taken under this paragraph. Landlord ________ Tenant __________ No action taken, commenced, or prosecuted by Landlord, no execution on any judgment and no act or forbearance on the part of Landlord in taking or accepting possession of the Premises shall be construed as an election to terminate this Lease unless Landlord expressly exercises this option under Section 29.2(c). Upon taking possession of the Premises Landlord may from time --------------- to time, without termination of this Lease, relet the Premises or any part thereof as agent for Tenant for such rental terms and conditions (which may be for a term extending beyond the Lease Term and/or at a higher rental rate) as Landlord, in its sole discretion, may deem advisable, with the right to make alterations and repairs to said Premises required for reletting. The rents received by Landlord from such reletting shall be applied first to the payment of any costs of reletting and second to the payment of rent and other charges due and unpaid hereunder. The residue, if any, shall be held by Landlord and applied in payment of future rent and other charges as the same may become due and payable hereunder. If the rents received from such reletting during any month are insufficient to reimburse Landlord for any costs of reletting or rent and other charges due and payable hereunder, Tenant shall pay any deficiency to Landlord as additional rent hereunder. Such deficiency shall be calculated and paid monthly as additional rent hereunder. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach.
(c) Elect to terminate this Lease by written notice to Tenant. In the event of such termination, Tenant shall immediately surrender possession of the Premises. If Tenant fails or refuses to surrender the Premises, Landlord may take possession in accordance with Section 29.2(b). Should Landlord --------------- terminate this Lease, Tenant shall have no further interest in this Lease or in the Premises. In addition, whether or not this Lease is terminated, Tenant agrees to pay Landlord as additional rent all damages Landlord may incur by reason of Tenant's default, including without limitation (1) the cost of repairs, alterations, redecorating, leasing commissions, tenant improvement allowances, rental concessions and Landlord's other expenses incurred in reletting the Premises to a view tenant, as well as to reimburse Landlord for the amount of all of said expenses in originally procuring Tenant for occupancy of the Premises, and (2) the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in this Lease for the remainder of the Lease Term over the then reasonable rental value of the Premises for the remainder of the Lease Term, all of which amounts shall be immediately due hereunder and payable at Landlord's election from Tenant to Landlord.
(d) Obtain the appointment of a receiver in any court of competent jurisdiction, and the receiver may take possession of any personal property belonging to Tenant and used in the conduct of the business of Tenant being carried on in the Premises. Tenant agrees that the entry upon the Premises or possession of said personal property by said receiver shall not constitute an eviction of Tenant from the Premises or any portion thereof, and Tenant agrees to hold the Landlord safe and harmless from any claim of any character by any person arising out of or in any way connected with the entry by said receiver in taking possession of the Premises or said personal property.
29.3 No act or conduct of the Landlord, whether consisting of reentry, taking possession, or reletting the Premises or obtaining appointment of a receiver or accepting the keys to the Premises, or otherwise, prior to the expiration of the Lease Term shall be deemed to be or constitute an acceptance of the surrender of the Premises by the Landlord or an election to terminate this Lease unless Landlord exercises its election under Section 29.2(c) of this -------------- Lease. Such acceptance or election by Landlord shall only be effected, and must be evidenced, by written acknowledgement of acceptance of surrender or notice of election to terminate signed by Landlord.
29.4 Tenant agrees that in the event it is due to render performance in accordance with any term, condition, covenant, or provision of this Lease and it fails to render such performance within ten (10) days after receipt by Tenant of written notification from Landlord that such performance is past due, in accordance with the notice from Municipality of such nonpayment, provision hereof or immediately if the Tenant shall neglect or fail to perform or observe any required for protection of the other termsPremises, provisions, conditions or covenants herein contained and on the Tenant’s part to be performed or observed for a period of thirty (30) days after receipt by the Tenant of notice of such neglect or failure; provided that Tenant shall have such extended period as may be required beyond thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and Tenant commences the cure within the initial thirty (30) day period and thereafter continuously and diligently pursues the cure to completion,, or if any assignment shall be made of the Tenant’s property for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer shall be appointed to take charge of all or any part of the Tenant’s property by a Court of competent jurisdiction, or if a petition is filed by the Tenant under any bankruptcy laws for relief or composition of its debts, or if the Tenant is declared bankrupt then, and in any of said cases, the Municipality lawfully may immediately or at any time thereafter and without demand or notice enter upon the Premises or any part thereof in the name of the whole and repossess the same, including all equipment and trade fixtures therein and/or annexed thereto, as of the Municipality’s former estate and expel the Tenant and those claiming through or under the Tenant and remove its effects, forcibly if necessary, without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or proceeding breach of covenants, and upon such entry, may terminate this Lease; and the Tenant covenants in case of such termination to pay and be liable for, on the days originally fixed for the payment thereof, amounts equal to the several installments of rent and other charges reserved as would under the terms of this Lease become due for the remainder of the then current term if this Lease had not been terminated or if Municipality had not entered or reentered as aforesaid, and the Tenant covenants to pay and be liable for all losses and damages suffered by reason of such termination, including, but not limited to, the reasonable documented costs of legal counsel retained by the Municipality and all reasonable documented expenses of the Municipality for enforcement hereunder. In addition to all of Landlord's other legal rights and equitable, remedies, Landlord shall have the right right, but not the obligation, to remove equipment/structures render such performance and to charge all costs and expense incurred in connection therewith to Tenant. All amounts so charged together with interest thereon at Tenant’s the Delinquency Interest Rate shall be considered additional rent and shall be due and payable immediately to Landlord within ten (10) days after presentment of a statement to Tenant indicating the amount and nature of such cost or expense.
29.5 No remedy herein conferred upon Landlord shall be considered exclusive of any other remedy, but the same shall be cumulative and the right shall be in addition to declare equipment/structures abandoned and take ownership thereof, all without liability to Landlordevery other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Landlord may exercise its remedies in any order or combination selected by Landlord in its sole discretion. No delay or omission of Landlord to exercise any right or power arising from any default shall also have the impair any such right or power, or shall be construed to declare be a waiver of any surety forfeited and to apply same to any reasonable documented expenses Landlord incurs on account of Tenant’s defaultsuch default or an acquiescence therein.
Appears in 1 contract
Samples: Office Lease Agreement (United Panam Financial Corp)
Tenants Default and Landlords Remedies. This 28.1 Tenant will be in default under this Lease is made on condition that if any of the following occurs, and same shall be deemed an “Event of Default”:
(a) If Tenant should neglect or fail fails to pay the rent due hereunder Minimum Monthly Rent or make any other payment required by this Lease when due, and such payment default is not cured within ten five (105) days Business Days after receipt by Tenant of notice from Municipality of such nonpayment, or if the Tenant shall neglect or fail to perform or observe any of the other terms, provisions, conditions or covenants herein contained and on the Tenant’s part to be performed or observed for a period of thirty (30) days after receipt by the Tenant of Landlord provides notice of such neglect failure.
(b) If Tenant assigns this Lease or failure; provided that Tenant shall have such extended period as may be required beyond thirty (30) days if the nature mortgages its interest in this Lease or sublets any part of the cure is such that it reasonably requires more than thirty Premises without first obtaining Landlord's written consent.
(30c) days and If Tenant commences abandons the cure within the initial thirty (30) day period and thereafter continuously and diligently pursues the cure to completion,Premises or becomes bankrupt or insolvent, or if makes any general assignment shall be made of the Tenant’s all or a substantial part of its property for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer shall be receiver is appointed to operate Tenant's business or to take charge possession of all or a substantial part of Tenant's property.
(d) If a lien attaches to this Lease or to Tenant's interest in the Premises, and Tenant fails to post a bond or other security or to have the lien released within twenty (20) Business Days of its notification thereof, or if a mortgagee institutes proceedings to foreclose its mortgage against Tenant's leasehold interest or other property and Tenant fails to have the foreclosure proceedings dismissed within twenty (20) Business Days after the entry of any judgment or order declaring the mortgage to be valid and Tenant to be in default on the obligation secured thereby, or directing enforcement of the mortgage.
(e) If Tenant breaches any other provision of this Lease, and fails to perform and cure the breach within thirty (30) days after Landlord sends written notice of the breach, or if performance cannot reasonably be completed within thirty (30) days, then if Tenant does not proceed with reasonable diligence to cure the breach within such additional time as may be reasonably necessary under the circumstances.
28.2 Upon an Event of Default by Tenant, then Landlord may take any one or more of the following actions:
(a) Landlord may re-enter and take possession of all or any part of the Premises and remove Tenant and any person claiming under Tenant from the Premises, using reasonable force, if necessary, and without committing a trespass or becoming liable for any loss or damage that may be occasioned thereby. Landlord may also change the locks to the Premises without notice at Tenant’s property 's expense. Tenant specifically acknowledges and agrees that any re-entry and re-possession of the Premises by Landlord will not by themselves terminate this Lease.
(b) Landlord may remove any property, including fixtures, from the Premises and store the same at Tenant's expense in a Court of competent jurisdictionwarehouse or any other location, or if a petition is filed by Landlord may lease the Tenant under any bankruptcy laws for relief property on the Premises pending sale or composition of its debts, or if other disposition. If Landlord leaves the Tenant is declared bankrupt then, and in any of said cases, the Municipality lawfully may immediately or at any time thereafter and without demand or notice enter upon property on the Premises or stores it at another location owned or controlled by Landlord, then Landlord may charge Tenant a reasonable fee for storing and handling the property comparable to what Landlord would have had to pay to a third party for such services. Landlord will not be liable under any part thereof circumstance to Tenant or to anyone else for any damage to the property. Landlord may proceed to sell Tenant's property, which shall be sold in accordance with the name laws of the whole State.
(c) Landlord may collect any rents or other payments that become due from any subtenant, concessionaire or licensee, and repossess may in its own name or in Tenant's name bring suit for such amounts, and settle any claims therefore, without approving the same, including all equipment and trade fixtures therein and/or annexed thereto, as terms of the Municipality’s former estate and expel sublease or Tenant's agreement with the Tenant and those claiming through concessionaire or under the Tenant and remove its effects, forcibly if necessary, without being deemed guilty of any manner of trespass licensee and without prejudice to Landlord's right to terminate the sublease or agreement without cause and remove the subtenant, concessionaire or licensee from the Premises. All of the foregoing amounts shall be applied to Tenant’s obligations under this Lease.
(d) Landlord may re-let the Premises at whatever rent and on whatever terms and conditions it deems advisable. The term of any remedies which might otherwise new lease may be used shorter or longer than the remaining Lease Term. In reletting the Premises, Landlord may make any alterations or repairs to the Premises it feels necessary or desirable; may subdivide the Premises into more than one unit and lease each portion separately; may sell Tenant's improvements, fixtures and other property located on the Premises to the new tenant, or include such improvements, fixtures and property as part of the Premises without additional cost; may advertise the Premises for arrears sale or lease; may hire brokers or other agents; and, may do anything else it deems necessary or helpful in reletting the Premises. Tenant will be liable to Landlord for all costs and expenses of rent or proceeding breach of covenantsthe reletting including but not limited to rental concessions to the new tenant, broker's commissions and tenant improvements, and upon such entrywill remain liable for the Minimum Monthly Rent and all other charges arising under this Lease, less any income received from the new tenant, unless this Lease is terminated as set forth below.
(e) Landlord may terminate this Lease at any time after Tenant defaults by sending a written notice to Tenant expressly stating that this Lease is being terminated. Termination will be effective on the date of the notice or on any other date set forth in the notice. Until Landlord sends Tenant such a notice, this Lease will remain in full force and effect, and Tenant will remain liable for paying the Minimum Monthly Rent and other charges that come due under this Lease and for performing all other terms and conditions of this Lease; . No other action by Landlord, including repossession of the Premises, removing or selling Tenant's separate property, reletting the Premises, or filing suit for possession or for damages, will terminate this Lease or release Tenant from its continuing liability for complying with the terms and conditions.
(f) Landlord may recover from Tenant all costs and expenses Landlord incurs as a direct or indirect consequence of Tenant's breach, including the cost of storing and selling Tenant's property, reletting the Premises, and bringing suit against Tenant for possession or damages. If Landlord made or paid for any improvements to the Premises, or granted Tenant any improvement allowance or credit against the Minimum Monthly Rent or other charges due hereunder for Tenant's improvements, then Landlord shall also be entitled to recover the unamortized portion of the cost of such improvements or the amount of such allowance or credit, determined by multiplying the total amount of such cost or allowance or credit by a fraction, the denominator of which is the total number of months of the initial Lease Term and the numerator of which is the number of months of the Lease Term remaining at the time of Tenant's default. Also, if this Lease provides for any months for which no Minimum Monthly Rent or a reduced Minimum Monthly Rent is payable, or for any other rent concession to Tenant, then, upon default, Tenant covenants in case of such termination to pay and be shall become liable for, on the days originally fixed for the payment thereofunamortized amount of the Minimum Monthly Rent (or other rent concession), amounts equal plus applicable taxes, for such months, and Landlord shall be entitled to recover as additional rent the several installments of amount that would have been payable by Tenant for such months if the Minimum Monthly Rent provided for herein had been payable by Tenant throughout the entire Lease Term. Unless Landlord terminates this Lease, Tenant will also remain liable for any difference between the Minimum Monthly Rent and other charges called for by this Lease and the rent and other charges reserved as would under collected by Landlord from any new tenant. For any month in which
(g) Landlord may xxx Tenant for possession of the terms Premises, for damages for breach of this Lease become due for the remainder of the then current term if this Lease had not been terminated or if Municipality had not entered or reentered as aforesaidLease, and for other appropriate relief, either in the Tenant covenants to pay same or in separate actions. Landlord may recover all costs and be liable expenses it incurs in any such suit, including reasonable attorneys' fees.
(h) Landlord may exercise any other right or remedy available at Colorado law or in equity for all losses breach of contract, damages or other appropriate relief. The rights and damages suffered by reason of such termination, including, but not limited to, the reasonable documented costs of legal counsel retained by the Municipality and all reasonable documented expenses of the Municipality for enforcement hereunder. In addition to all other legal and equitable, remedies, Landlord shall have the right to remove equipment/structures at Tenant’s expenseremedies described herein are cumulative, and Landlord's exercise of any one right will not preclude the simultaneous or subsequent exercise of any other right or remedy.
28.3 If Tenant is in arrears in payment of Rent, Tenant waives its right, if any, to declare equipment/structures abandoned designate the items to which any payments made by Tenant are to be credited, and take ownership thereofLandlord may apply any payments made by Tenant to such items as Landlord sees fit in its commercially reasonable discretion, all without liability irrespective of any designation or request by Tenant as to Landlord. Landlord the items to which any such payment shall also have the right to declare any surety forfeited and to apply same to any reasonable documented expenses Landlord incurs on account of Tenant’s defaultbe credited.
Appears in 1 contract
Tenants Default and Landlords Remedies. This Lease is made on condition that 29.1 The following shall constitute a default by Tenant under this Lease: (a) if Tenant should neglect or fail fails to pay any installment of the rent due hereunder Minimum Monthly Rent within ten (10) days after receipt written notice that the same is past due or, if Landlord has previously provided notice two (2) times in such sixty (60) month period during the Term (or any additional sixty (60) month period during a Renewal Term, if any), when such amounts are due; or (b) if Tenant fails to pay any installment of Additional Rent herein provided or any other sum required by this Lease to be paid to Landlord, or any part thereof, within ten (10) days of written notice that the same is past due or, if Landlord has previously provided such notice two (2) times in such sixty (60) month period, when such amounts are due; or (c) if Tenant fails to perform any other covenants or obligations to be performed by Tenant of under this Lease and such failure shall continue for ten (10) days after notice thereof from Municipality of such nonpaymentLandlord to Tenant, or if the Tenant such failure shall neglect or fail to perform or observe any of the other terms, provisions, conditions or covenants herein contained and on the Tenant’s part to be performed or observed continue for a period of thirty (30) days after receipt notice thereof from Landlord to Tenant if such default cannot reasonably be cured within ten (10) days; or (d) if a petition or proceeding under the Federal Bankruptcy Act or any other applicable state or federal law relating to bankruptcy or reorganization or other relief for debtors is filed or commenced by the or against Tenant or any guarantor of notice of such neglect or failure; provided that Tenant this Lease, and if against Tenant, said proceedings shall have such extended period as may not be required beyond thirty dismissed within twenty (3020) days following commencement thereof; or (e) if the nature Tenant or any guarantor of the cure this Lease is such that it reasonably requires more than thirty (30) days and Tenant commences the cure within the initial thirty (30) day period and thereafter continuously and diligently pursues the cure to completion,adjudged insolvent, or if any makes an assignment shall be made of the Tenant’s property for the benefit of its creditors or enters into an arrangement with its creditors, ; or (f) if a receiver, trustee writ of attachment or execution is levied on the leasehold estate hereby created and is not released or satisfied within twenty (20) days thereafter; or (g) if a receiver is appointed in bankruptcy any proceeding or similar officer shall be appointed action to which Tenant is a party with authority to take charge of all possession or any part control of the Tenant’s Premises or the business conducted thereon by Tenant or the property by of any guarantor of this Lease and such receiver is not discharged within a Court period of competent jurisdictiontwenty (20) days after his appointment.
29.2 Upon a default of Tenant as defined in Section 29.1, Landlord or if a petition is filed by Landlord's agents and employees shall have the Tenant under any bankruptcy laws right and option to:
(a) Prosecute and maintain an action or actions, as often as Landlord deems advisable, for relief or composition collection of its debtsMinimum Monthly Rent, or if the Tenant is declared bankrupt thenAdditional Rent, other charges, and in any damages as the same accrue, without entering into possession and without terminating this Lease. No judgment obtained shall constitute a merger or otherwise bar prosecution of said casessubsequent actions for Minimum Monthly Rent, the Municipality lawfully may immediately Additional Rent, other charges, and damages as they accrue.
(b) Immediately or at any time thereafter reenter and take possession of the Premises and remove Tenant or Tenant's Permittees and any or all of their property from the Premises. Reentry and removal may be effected by summary proceedings or any other action or proceedings at law, by force or otherwise. Landlord shall not be liable in any way in connection with any action taken under this paragraph. No action taken, commenced, or prosecuted by Landlord, no execution on any judgment and no act or forbearance on the part of Landlord in taking or accepting possession of the Premises shall be construed as an election to terminate this Lease unless Landlord expressly exercises this option under Section 29.2(c). Upon taking possession of the Premises Landlord may from time to time, without demand or notice enter upon termination of this Lease, relet the Premises or any part thereof as agent for Tenant for such rental terms and conditions (which may be for a term extending beyond the Lease Term) as Landlord, in its sole discretion, may deem advisable, with the name right to make alterations and repairs to said Premises required for reletting. The rents received by Landlord from such reletting shall be applied first to the payment of any costs of reletting and second to the payment of Rent and other charges due and unpaid hereunder. The residue, if any, shall be held by Landlord and applied in payment of future Rent and other charges as the same may become due and payable hereunder. If the rents received from such reletting during any month are insufficient to reimburse Landlord for any costs of reletting or Rent and other charges due and payable hereunder, Tenant shall pay any deficiency to Landlord. Such deficiency shall be calculated and paid monthly. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach.
(c) Elect to terminate this Lease by written notice to Tenant. In the event of such termination, Tenant shall immediately surrender possession of the whole and repossess Premises. If Tenant fails or refuses to surrender the samePremises, including all equipment and trade fixtures therein and/or annexed thereto, as of the Municipality’s former estate and expel the Tenant and those claiming through or under the Tenant and remove its effects, forcibly if necessary, without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or proceeding breach of covenants, and upon such entry, Landlord may take possession in accordance with Section 29.2(b). Should Landlord terminate this Lease; , Tenant shall have no further interest in this Lease or in the Premises, and the Landlord may recover from Tenant covenants in case all damages it may incur by reason of Tenant's default, including (1) the cost of reletting the Premises, and (2) the worth at the time of such termination to pay and be liable forof the excess, on if any, of the days originally fixed for the payment thereof, amounts equal to the several installments amount of rent and other charges equivalent to rent reserved as would under the terms of in this Lease become due for the remainder of the Lease Term over the then current term if this reasonable rental value of the Premises for the remainder of the Lease had not been terminated or if Municipality had not entered or reentered as aforesaidTerm, all of which amounts shall be immediately due and payable at Landlord's election from Tenant to Landlord.
(d) Obtain the appointment of a receiver in any court of competent jurisdiction, and the receiver may take possession of any personal property belonging to Tenant covenants and used in the conduct of the business of Tenant being carried on in the Premises. Tenant agrees that the entry upon the Premises or possession of said personal property by said receiver shall not constitute an eviction of Tenant from the Premises or any portion thereof, and Tenant agrees to pay indemnify, defend and hold Landlord harmless for, from and against any claim of any character by any person arising out of or in any way connected with the entry by said receiver in taking possession of the Premises or said personal property.
29.3 No act or conduct of the Landlord, whether consisting of reentry, taking possession, or reletting the Premises or obtaining appointment of a receiver or accepting the keys to the Premises, or otherwise, prior to the expiration of the Lease Term shall be liable for all losses and damages suffered by reason deemed to be or constitute an acceptance of such termination, including, but not limited to, the reasonable documented costs surrender of legal counsel retained the Premises by the Municipality Landlord or an election to terminate this Lease unless Landlord exercises its election under Section 29.2(c) of this Lease. Such acceptance or election by Landlord shall only be effected, and all reasonable documented expenses must be evidenced, by written acknowledgement of acceptance of surrender or notice of election to terminate signed by Landlord.
29.4 Tenant agrees that in the event it is due to render performance in accordance with any term, condition, covenant, or provision of this Lease and it fails to render such performance within ten (10) days after written notification from Landlord that such performance is past due, in accordance with the notice provision hereof or immediately if required for protection of the Municipality for enforcement hereunder. In Premises, in addition to all of Landlord's other legal rights and equitable, remedies, Landlord shall have the right right, but not the obligation, to remove equipment/structures render such performance and to charge all costs and expenses incurred in connection therewith to Tenant. All amounts so charged together with interest thereon at Tenant’s the Delinquency Interest Rate shall be considered Additional Rent and shall be due and payable immediately to Landlord within ten (10) days after presentment of a statement to Tenant indicating the amount and nature of such cost or expense.
29.5 No remedy herein conferred upon Landlord shall be considered exclusive of any other remedy, but the same shall be cumulative and the right shall be in addition to declare equipment/structures abandoned and take ownership thereof, all without liability to Landlordevery other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Landlord may exercise its remedies in any order or combination selected by Landlord in its sole discretion. No delay or omission of Landlord to exercise any right or power arising from any default shall also have the impair any such right or power, or shall be construed to declare be a waiver of any surety forfeited and to apply same to any reasonable documented expenses Landlord incurs on account of Tenant’s defaultsuch default or an acquiescence therein.
Appears in 1 contract
Tenants Default and Landlords Remedies. This 28.1 Tenant will be in default under the Lease is made on condition that if any of the following occurs, and same shall be deemed an “Event of Default”:
(a) If Tenant should neglect or fail fails to pay the rent due hereunder Minimum Monthly Rent or make any other payment required by the Lease within ten three (103) days Business Days after receipt Landlord sends Tenant a written notice or demand for payment.
(b) If on three or more occasions in any twelve month period Landlord does not receive either Tenant’s regular monthly payment of Minimum Monthly Rent and other regularly recurring charges on or before the First Business Day of the month or any other payment on or before the date it is due.
(c) If Tenant assigns the Lease or mortgages its interest in the Lease or sublets any part of the Premises without first obtaining Landlord’s written consent, as required by Article 23.
(d) If Tenant of notice from Municipality of such nonpaymentabandons the Premises, or if the Tenant shall neglect becomes bankrupt or fail to perform or observe any of the other terms, provisions, conditions or covenants herein contained and on the Tenant’s part to be performed or observed for a period of thirty (30) days after receipt by the Tenant of notice of such neglect or failure; provided that Tenant shall have such extended period as may be required beyond thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and Tenant commences the cure within the initial thirty (30) day period and thereafter continuously and diligently pursues the cure to completion,insolvent, or if makes any general assignment shall be made of the Tenant’s all or a substantial part of its property for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer shall be receiver is appointed to operate Tenant’s business or to take charge possession of all or a substantial part of Tenant’s property (provided, however, that if a petition for bankruptcy is filed against Tenant, then such filing shall not be an Event of Default unless Tenant fails to have the proceeding, initiated by such petition dismissed within 60 days after the filing thereof).
(e) If a lien attaches to the Lease or to Tenant’s interest in the Premises, and Tenant fails to post a bond or other security or to have the lien released within ten (10) days of its notification thereof, or if a mortgagee institutes proceedings to foreclose its mortgage against Tenant’s leasehold interest or other property and Tenant fails to have the foreclosure proceedings dismissed within ten (10) calendar days after the entry of any judgment or order declaring the mortgage to be valid and Tenant to be in default on the obligation secured thereby, or directing enforcement of the mortgage.
(f) If Tenant fails to maintain any of the insurance as required by the Lease.
(g) If Tenant breaches any other provision of the Lease and fails to cure the breach within thirty (30) days after Landlord sends it written notice of the breach, or if the breach cannot be cured within thirty (30) days, then if Tenant does not proceed with reasonable diligence to cure the breach within such additional time as may be reasonably necessary under the circumstances, not to exceed one hundred fifty (150) days.
28.2 If Tenant is in default, then Landlord may take any one or more of the following actions:
(a) Terminate this Lease by giving Tenant written notice thereof or by making entry thereon for the express purpose of terminating this Lease, and upon the delivery of such notice or the making of such entry this Lease shall terminate.
(b) Landlord may re-enter and take possession of all or any part or the Premises without committing a trespass or becoming liable for any loss or damage that may be occasioned thereby. Except if expressly intended by Landlord as described in Section 28.2(a), re-entry and possession of the Premises will not by themselves terminate the Lease.
(c) If Landlord shall have taken possession of the Premises, Landlord may remove any property. including fixtures, from the Premises and store the same at Tenant’s property by expense in a Court of competent jurisdictionwarehouse or any other location, or if a petition is filed by Landlord may lease the Tenant under any bankruptcy laws for relief property on the Premises pending sale or composition of its debts, or if other disposition. If Landlord leaves the Tenant is declared bankrupt then, and in any of said cases, the Municipality lawfully may immediately or at any time thereafter and without demand or notice enter upon property on the Premises or stores it at another location owned or controlled by Landlord, then Landlord may charge Tenant a reasonable fee for storing and handling the property comparable to what Landlord would have had to pay to a third party for such services. Landlord will not be liable under any part thereof circumstance to Tenant or to anyone else for any damage to the property. Landlord may proceed to sell Tenant’s property, which shall be sold in accordance with the name laws of the whole state in which the Premises are located.
(d) Landlord may collect any rents or other payments that become due from any subtenant, concessionaire or licensee, and repossess may in its own name or in Tenant’s name bring suit for such amounts, and settle any claims therefore, without approving the same, including all equipment and trade fixtures therein and/or annexed thereto, as terms of the Municipalitysublease or Tenant’s former estate and expel agreement with the Tenant and those claiming through concessionaire or under the Tenant and remove its effects, forcibly if necessary, without being deemed guilty of any manner of trespass licensee and without prejudice to Landlord’s right to terminate the sublease or agreement without cause and remove the subtenant, concessionaire or licensee from the Premises.
(e) Landlord may relet the Premises at whatever rent and on whatever terms and conditions it deems advisable. The term of any remedies which might otherwise new lease may be used shorter or longer than the remaining term or this Lease. In reletting the Premises, Landlord may make any alterations or repairs to the Premises it feels necessary or desirable; may subdivide the Premises into more than one unit and lease each portion separately; may sell Tenant’s improvements, fixtures and other property located on the Premises to the new tenant, or include such improvements, fixtures and property as part of the Premises without additional cost; may advertise the Premises for arrears sale or lease; and may hire brokers or other agents. Tenant will be liable to Landlord for all costs and expenses of rent or proceeding breach of covenantsthe reletting including but not limited to rental concessions to the new tenant, broker’s commissions and tenant improvements, and upon will remain liable for the Minimum Monthly Rent and all other charges arising under the Lease, less any income received from the new tenant, unless the Lease is terminated as set forth below.
(f) Landlord may recover from Tenant all costs and expenses Landlord incurs as a direct or indirect consequence of Tenant’s breach, including the cost of storing and selling Tenant’s property, reletting the Premises, and bringing suit against Tenant for possession or damages. If Landlord made or paid for any improvements to the Premises, or granted Tenant any improvement allowance or credit against the Minimum Monthly Rent or other charges due hereunder for Tenant’s improvements, then Landlord shall also be entitled to recover the unamortized portion of the cost of such entryimprovements or the amount of such allowance or credit, may terminate this Lease; determined by multiplying the total amount of such cost or allowance or credit by a fraction, the denominator of which is the total number of months of the initial Lease Term and the numerator of which is the number of months of the Lease Term remaining at the time of Tenant’s default. Also, if the Lease provides for any months for which no Minimum Monthly Rent or a reduced Minimum Monthly Rent is payable, or for any other rent concession to Tenant, then, upon default, Tenant covenants in case shall become liable for the full amount of the Minimum Monthly Rent (or other rent concession), plus applicable taxes, for such months, and Landlord shall be entitled to recover as additional rent the amount that would have been payable by Tenant for such months if the Minimum Monthly Rent provided for herein had been payable by Tenant throughout the entire Lease Term. If Landlord does terminate the Lease, then Tenant will remain liable for all sums accrued under the Lease to the date of termination, as well as for all costs and expenses incurred by Landlord and any other damages sustained by Landlord as a consequence of Tenant’s breach. Also Landlord may elect to recover from Tenant the difference between the present value at the date of termination of the Minimum Monthly Rent and other charges that were to have been due under this Lease from such termination date to the end of the Lease Term and the present value as of such termination to pay date of the Minimum Monthly Rent and be liable for, on other charges Landlord could have obtained if Landlord had rented the days originally fixed Premises for the payment thereof, same period at its fair rental value. The present value of the amounts referred to in the preceding sentence shall be computed using a discount rate equal to the several installments prime rate charged by Xxxxx Fargo Bank (or its successor) at the date of termination. Tenant shall be liable to Landlord for any difference between the Minimum Monthly Rent and other charges called for by the Lease and the rent and other charges reserved as would collected by Landlord from any new tenant. For any month in which Landlord collects less from a successor tenant than is payable under this Lease, Landlord may demand that Tenant immediately make up the difference, and Landlord may bring suit against Tenant if Tenant fails to do so, provided that Landlord shall give Tenant credit for any sums collected by Landlord, if any, from Tenant under the terms fourth sentence of this Lease become due paragraph.
(g) Landlord may xxx Tenant for the remainder possession of the then current term if this Lease had not been terminated or if Municipality had not entered or reentered as aforesaidPremises, for damages for breach of the Lease, and for other appropriate relief, either in the Tenant covenants to pay same or in separate actions. Landlord may recover all costs and be liable expenses it incurs in any such suit, including reasonable attorneys’ fees.
(h) Landlord may exercise any other right or remedy available at law or in equity for all losses breach of contract, damages or other appropriate relief. The rights and damages suffered by reason of such termination, including, but not limited to, the reasonable documented costs of legal counsel retained by the Municipality and all reasonable documented expenses of the Municipality for enforcement hereunder. In addition to all other legal and equitable, remedies, Landlord shall have the right to remove equipment/structures at Tenant’s expenseremedies described herein are cumulative, and Landlord’s exercise of any one right will not preclude the simultaneous exercise of any other right to declare equipment/structures abandoned and take ownership thereof, all without liability to Landlord. Landlord shall also have the right to declare any surety forfeited and to apply same to any reasonable documented expenses Landlord incurs on account of Tenant’s defaultor remedy.
Appears in 1 contract
Tenants Default and Landlords Remedies. This Lease is made on condition that if A. In the event Tenant should neglect or fail fails to pay the rent due hereunder any monthly installment of Base Rent or any other sum required to be paid under this Lease and such failure is not cured within ten (10) days after receipt by from the date Tenant of receives written notice from Municipality of such nonpayment, Landlord shall, in addition to its other remedies provided by law and in equity, have the remedies set forth in Subparagraph 18(C) below.
B. If Tenant fails to perform any of its obligations under this Lease other than the payment of rent or any other obligation involving the payment of money, Landlord shall give Tenant written notice of such default, and if the Tenant shall neglect or fail to perform or observe any of the other terms, provisions, conditions or covenants herein contained and on the Tenant’s part to be performed or observed for a period of cure such default within thirty (30) days after the receipt by the Tenant of notice of such neglect notice, or failure; provided that Tenant shall have such extended period as may be required beyond thirty (30) days if the nature default is of the cure is such that it reasonably requires a character as to require more than thirty (30) days and to cure, then if Tenant commences the cure shall fail within the initial said thirty (30) day period to commence and thereafter continuously proceed diligently to cure such default, then and diligently pursues in either of such events, Landlord shall, in addition to its other remedies provided at law or in equity, have the remedies set forth in Paragraph 18(C) below. After notice to Tenant and failure of Tenant to commence curing such default within the notice period, Landlord may (at its option and in addition to its other legal remedies) cure to completion,such default for the account of Tenant, or if and any assignment sums expended by Landlord, together with interest thereon at the rate of ten (10%) percent per annum until paid, shall be made additional rent and shall be paid by Tenant with the next monthly installment of Base Rent.
C. In the Tenant’s event Tenant shall be in default under Subparagraph 18(A) or 18(B) above, then Landlord, in addition to all other remedies provided under this Lease, at law or in equity, shall have the immediate right to re-enter the Building and Premises to remove all persons and property within the Building and Premises. Such property may be removed and stored in a public warehouse or elsewhere at the cost of, and for the benefit of creditorsaccount of, Tenant. Should Landlord elect to re-enter or if a receivertake possession pursuant to legal proceedings or any notice provided for by law, trustee in bankruptcy or similar officer Landlord shall be appointed either terminate this Lease or, without terminating this Lease, take commercially reasonable actions to take charge of relet all or any part portion of the Building and/or Premises on commercially reasonable terms and conditions and take other reasonable actions to mitigate Tenant’s 's damages. The proceeds of such reletting shall be applied, first, to the payment of any indebtedness of Tenant to Landlord other than rent due hereunder; second, to the payment of any reasonable costs of such reletting, including broker's fees and the cost of any reasonable alterations and repairs to the Building; third, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Landlord and applied toward the payment of future rent as it becomes due and payable. Should the proceeds of such reletting during any month be less than the monthly installment of Base Rent required under this Lease, then Tenant shall during each such month pay the deficiency to Landlord. In the event any rentals or other sums received from reletting exceed those sums to be paid by Tenant, such excess shall belong to and be the sole property of Landlord. No such re-entry or taking possession of the Building and/or Premises, or acceptance of the keys to the Building by Landlord, shall be construed as an election to terminate this Lease unless Landlord provides Tenant with written notice of its election to terminate the Lease, or unless the termination is decreed by a Court court of competent jurisdiction. If Landlord elects to relet the Building and/or Premises without terminating the Lease, or if a petition is filed by the Tenant under any bankruptcy laws for relief or composition of its debts, or if the Tenant is declared bankrupt then, and in any of said cases, the Municipality lawfully Landlord may immediately or at any time thereafter elect to terminate this Lease for any previous breach.
D. Tenant shall pay all reasonable attorneys' fees and all other expenses incurred by Landlord in enforcing any of Tenant's obligations under this Lease, or in any litigation in which Landlord shall, without demand or notice enter upon the Premises or any part thereof in the name of the whole and repossess the sameits fault, including all equipment and trade fixtures therein and/or annexed thereto, as of the Municipality’s former estate and expel the Tenant and those claiming become involved through or under the Tenant and remove its effects, forcibly if necessary, without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or proceeding breach of covenants, and upon such entry, may terminate this Lease; and the Tenant covenants in case of such termination to pay and be liable for, on the days originally fixed for the payment thereof, amounts equal to the several installments of rent and other charges reserved as would under the terms of this Lease become due for the remainder of the then current term if this Lease had not been terminated or if Municipality had not entered or reentered as aforesaid, and the Tenant covenants to pay and be liable for all losses and damages suffered by reason of such termination, including, but not limited to, the reasonable documented costs of legal counsel retained by the Municipality and all reasonable documented expenses of the Municipality for enforcement hereunder. In addition to all other legal and equitable, remedies, Landlord shall have the right to remove equipment/structures at Tenant’s expense, and the right to declare equipment/structures abandoned and take ownership thereof, all without liability to Landlord. Landlord shall also have the right to declare any surety forfeited and to apply same to any reasonable documented expenses Landlord incurs on account of Tenant’s defaultthis Lease.
E. All Landlord's rights and remedies shall be cumulative and none shall be exclusive of any other rights and remedies allowed by law or in equity.
Appears in 1 contract
Tenants Default and Landlords Remedies. This All rights and remedies of the Landlord herein enumerated shall be cumulative, and none shall exclude any other right or remedy allowed by law. In addition to the other remedies in this Lease is made on condition that if Tenant should neglect provided, the Landlord shall be entitled to restraint by injunction of the violation or fail to pay the rent due hereunder within ten (10) days after receipt by Tenant attempted violation of notice from Municipality of such nonpayment, or if the Tenant shall neglect or fail to perform or observe any of the other termscovenants, provisions, agreements or conditions or covenants herein contained and on of this Lease.
(a) Any one of the Tenant’s part following events shall be deemed to be performed an “Event of Default” by Tenant under this Lease:
(i) Tenant fails to pay any installment of Annual Base Rental or observed Additional Rent when due, or any other payment or reimbursement to Landlord required herein when due, and such failure shall continue for a period of five (5) days from the date such payment was due and Landlord shall provide Tenant notice of said non-payment and allow an additional five (5) day period to cure; however, Landlord shall only be required to provide said notice once to Tenant in any twelve (12) month period;
(ii) Tenant defaults in the prompt and full performance of any other provision of this Lease and such default continues for thirty (30) days after receipt by the Tenant of notice of from Landlord to Tenant; or, if such neglect breach or failure; provided that Tenant shall have noncompliance cannot be reasonably cured within such extended period as may be required beyond thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and Tenant commences the cure within the initial thirty (30) day period and thereafter continuously and diligently pursues period, Tenant does not, in good faith, commence to cure such breach or noncompliance within such thirty (30) day period;
(iii) If the cure Tenant shall (a) apply for consent to completion,the appointment of a receiver, trustee or if any assignment shall be made liquidator of the Tenant’s property Tenant or of all or a substantial part of its assets; (b) admit in writing its inability to pay its debts as they come due; (c) make a general assignment for the benefit of creditors; (d) file a petition or any answer seeking reorganization or arrangement with creditors or to take advantage of any insolvency law other than the Federal Bankruptcy Code; (e) file an answer admitting the material allegations of a petition filed against the Tenant in any reorganization or insolvency proceeding, other than a proceeding commenced pursuant to the Federal Bankruptcy Code, or if any order, judgment or decree shall be entered by any court of competent jurisdiction, except for a bankruptcy court or a federal court sitting as a bankruptcy court, adjudicating the Tenant insolvent or approving a petition seeking reorganization of the Tenant or appointing a receiver, trustee in bankruptcy or similar officer shall be appointed to take charge liquidator of the Tenant or of all or a substantial part of its assets; or (f) make a transfer in fraud of creditors, then in any part such events, in addition to other rights provided for herein, Landlord may give to the Tenant a notice of intention to end the Term of this Lease, specifying a day not earlier than ten (10) days thereafter, and upon the giving of such notice the Term of this Lease and all rights, title and interest of the Tenant hereunder shall expire as fully and completely on the day so specified as if that day were the date herein specifically fixed for the expiration of the Term;
(iv) Intentionally Omitted;
(v) Tenant’s interest under this Lease or in the Premises is transferred or passes to, or devolves upon, any other person or entity in violation of Section 17 of this Lease;
(vi) Tenant shall fail to discharge any lien placed upon the Premises or upon Tenant’s interest in the Premises by any creditor and such lien is not discharged or disposed of in accordance with this Lease; or
(vii) Except in such circumstances that would constitute a Permitted Transfer pursuant to the provisions of Section 17(n) hereof, the commencement of steps or proceedings toward the dissolution, winding up, or other termination of the existence of the Tenant or of any guarantor of the Tenant’s property by a Court of competent jurisdictionobligations, or if a petition is filed by toward the liquidation of either of their respective assets.
(b) Upon the occurrence of any of such Event of Default described herein, Landlord shall have the option to pursue any or all of the following remedies:
(i) If Tenant fails to make any payment or perform any other act on its part to be made or performed under this Lease, the Landlord may, but shall not be obligated to, after reasonable notice to Tenant and without waiving or releasing the Tenant from any obligation under any bankruptcy laws for relief this Lease, make such payment or composition of its debts, or if perform such other act to the Tenant is declared bankrupt thenextent the Landlord may deem desirable, and in connection therewith to pay expenses and employ counsel. The Tenant agrees to pay reasonable attorney’s fees if legal action is required to enforce performance by Tenant of any condition, obligation or requirement hereunder. All sums so paid by the Landlord and all expenses in connection therewith, together with interest thereon at the rate of said casesTwelve Percent (12%) per annum from the date of payment, shall be deemed Additional Rent hereunder and payable at the time of any installment of Rent thereafter becoming due, and the Landlord shall have the same rights and remedies for the non-payment thereof, or of any other Additional Rent, as in the case of default in the payment of Rent.
(ii) Terminate this Lease by giving to the Tenant a notice of intention to end the Term of this Lease, specifying a day not earlier than three (3) days thereafter, and, upon the giving of such notice, this Lease shall terminate on the day so specified, except as to Tenant’s liability to pay rent and other charges for the remaining Term of this Lease, together with all arrearages, whereupon Tenant shall immediately surrender possession of the Premises to Landlord, and hereby grants to the Landlord full and free license to enter into and upon the Premises in such event with or without process of law and to repossess the Premises as the Landlord’s former estate and, if Tenant fails so to do, Landlord may, without prejudice to any other remedy which it may have for possession or arrearages in Annual Base Rent, Additional Rent, or other charges, enter upon and take possession of the Premises and expel or remove Tenant, as well as any other person who may be occupying such Premises or any part thereof, by force if necessary, including removal of all personal property therein, without being liable for prosecution or any claim of damages therefor, and change the locks on the Premises.
(iii) If the Landlord becomes entitled so to elect, and the Landlord elects, without terminating the Lease, to endeavor to relet the Premises, the Municipality lawfully Landlord may, at the Landlord’s option, enter into the Premises, remove the Tenant’s signs, personal property, and other evidence of tenancy, and take and hold possession thereof, without such entry and possession terminating the Lease or releasing the Tenant, in whole or in part, from the Tenant’s obligation to pay the Rent hereunder for the full Term as provided in the Lease. Upon and after entry into possession without termination of the Lease, the Landlord may immediately or at any time thereafter and without demand or notice enter upon relet the Premises or any part thereof in for the name account of the whole and repossess the sameTenant to any person, including all equipment and trade fixtures therein and/or annexed thereto, as of the Municipality’s former estate and expel firm or corporation other than the Tenant and those claiming through or under the Tenant and remove its effectsfor such rent, forcibly if necessary, without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or proceeding breach of covenants, such time and upon such entryterms as the Landlord shall determine to be reasonable. In any such case, the Landlord may terminate make repairs, alterations and additions in or to the Premises and redecorate the same to the extent deemed by the Landlord necessary or desirable.
(c) If this Lease is terminated under the provisions of Section 23(b)(ii) or if the Landlord shall reenter the Premises under the provisions of Section 23(b)(iii), or in the event of the termination of this Lease; and the Tenant covenants in case , or of such termination to pay and be liable forreentry, by or under any summary or other proceeding or action of any provision of law by reason of default hereunder on the days originally fixed for part of the payment thereofTenant, amounts Tenant shall pay to Landlord as damages in an amount equal to the several installments of rent Rent and other charges reserved as sums which would under the terms of this Lease become due have been owed by Tenant hereunder for the remainder balance of the then current term Term had this Lease, less the net proceeds, if this Lease had not been terminated or if Municipality had not entered or reentered as aforesaidany, and of any reletting of the Tenant covenants to pay and be liable for Premises by Landlord, after deducting all losses and damages suffered by reason of Landlord’s expenses in connection with such terminationreletting, including, but not limited towithout limitation, all repossession costs, brokerage commissions, legal expenses, attorneys’ fees, expenses of employees, alteration and repair costs, and expenses of preparation for such reletting of the Premises. As used herein, the reasonable documented costs of legal counsel retained by phrase “Preparation for such Reletting” shall mean restoring the Municipality Premises to a condition that is suitable for a new tenant, including any and all reasonable documented expenses costs for tenant finish work for a new tenant. Landlord shall be entitled to collect such damages from Tenant monthly on the days on which the Rent and other amounts would have been payable under this Lease, and Landlord shall be entitled to receive the same from Tenant on each such day. Alternatively, at the option of the Municipality for enforcement hereunder. In addition to all other legal and equitable, remediesLandlord, Landlord shall be entitled to recover forthwith against Tenant, as damages for the loss of the bargain and not as a penalty: (i) the worth at the time of award of any unpaid Rent and other sums due and payable which had been earned prior to return of possession of the Premises to Landlord; plus (ii) the worth at the time of award of the amount of unpaid Rent and other sums which would have been payable after the right date of return of possession of the Premises until the time of award which exceeds the amount of such Rent loss that Tenant proves could have been reasonably avoided by Landlord; plus (iii) the worth at the time of award of the amount by which the unpaid Rent including sums for estimated Operating Costs which would have been incurred and any other sums due for the balance of the Term after the time of award that exceeds the amount that Tenant proves could be reasonably avoided by Landlord; plus (iv) any other amounts to remove equipment/structures at compensate Landlord for the detriment proximately caused by Tenant’s expensefailure to perform Tenant’s obligations under this Lease, or which, in the ordinary course of things, would be likely to result therefrom, including, without limitation, any costs or expenses incurred by Landlord: (i) in retaking possession of the Premises; (ii) in maintaining, repairing, preserving, restoring, replacing, cleaning, altering or rehabilitating the Premises or any portion thereof, including such acts for reletting to a new tenant or tenants; (iii) for leasing commissions; or (iv) for any other costs necessary or appropriate to relet the Premises; plus (v) at Landlord’s election, such other amounts and remedies in addition to or in lieu of the foregoing as may be permitted from time to time by the laws of the State of Colorado. Any amounts owed by Tenant to Landlord shall bear pre- and post-judgment interest at Twelve Percent (12%) compounded annually until paid. The “worth at the time of award” of the amounts due prior to the date of the award is computed by allowing interest compounded annually, at the rate of Two Percent (2%) over the prime rate charged from time to time by Xxxxx Fargo Bank, N.A., in Denver, Colorado, or its successor(s), on all unpaid Rent and other sums due and payable. The “worth at the time of award” of the amounts due after the date of the award is computed by discounting such amount at the discount rate equal to the prime rate charged from time to time by Xxxxx Fargo Bank, N.A., in Denver, Colorado, or its successor(s).
(d) Tenant agrees it would be difficult for the Landlord to prove the amount of damages it will incur as a result of any breach of the Lease by Tenant. Tenant hereby agrees that providing for the above liquidated sums in addition to, and not in lieu of, other amounts due and owing amount to a reasonable sum due and owing the Landlord in the event of a breach of this Lease by Tenant.
(e) Any and all property which may be removed from the Premises by the Landlord pursuant to the authority of the Lease or of law, to which the Tenant is or may be entitled, may be handled, removed or stored by the Landlord at the risk, cost and expense of the Tenant, and the Landlord shall in no event be responsible for the value, preservation or safekeeping thereof. The Tenant shall pay to the Landlord, upon demand, any and all expenses incurred in such removal and all storage charges against such property so long as the same shall be in the Landlord’s possession or under the Landlord’s control. Any such property of the Tenant not removed from the Premises or retaken from storage by the Tenant within thirty (30) days after the end of the Term or of the Tenant’s right to declare equipment/structures possession of the Premises, however terminated, shall be conclusively deemed to have been forever abandoned by the Tenant and take ownership thereof, all without liability to Landlord. either may be retained by Landlord shall also have the right to declare any surety forfeited and to apply same to any reasonable documented expenses as its property or may be disposed of in such manner as Landlord incurs on account of Tenant’s defaultmay see fit.
Appears in 1 contract
Tenants Default and Landlords Remedies. This 29.1 Tenant will be in default under the Lease is made on condition that if any of the following occurs, and same shall be deemed an "EVENT OF DEFAULT":
(a) If Tenant should neglect or fail fails to pay the rent due hereunder Minimum Monthly Rent or make any other payment required by the Lease within ten three (103) working days after receipt Landlord sends Tenant a written notice or demand for payment, provided that such notice or demand is dated subsequent to the date such payment is due.
(b) If Tenant assigns the Lease or mortgages its interest in the Lease or sublets any part of the Premises without first obtaining Landlord's written consent, as required by ARTICLE 24.
(c) If Tenant of notice from Municipality of such nonpaymentabandons the Premises, or if the Tenant shall neglect or fail ceases to perform or observe any of the other terms, provisions, conditions or covenants herein contained and operate its business on the Tenant’s part to be performed or observed for a period of thirty (30) days after receipt by the Tenant of notice of such neglect or failure; provided that Tenant shall have such extended period as may be required beyond thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and Tenant commences the cure within the initial thirty (30) day period and thereafter continuously and diligently pursues the cure to completion,Premises, or if becomes bankrupt or insolvent, or makes any general assignment shall be made of the Tenant’s all or a substantial part of its property for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer shall be receiver is appointed to operate Tenant's business or to take charge possession of all or a substantial part of Tenant's property.
(d) If a lien attaches to the Lease or to Tenant's interest in the Premises, and Tenant fails to post a bond or other security or to have the lien released within ten (10) days of its notification thereof, or if a mortgagee institutes proceedings to foreclose its mortgage against Tenant's leasehold interest or other property and Tenant fails to have the foreclosure proceedings dismissed within ten (10) calendar days after the entry of any judgment or order declaring the mortgage to be valid and Tenant to be in default on the obligation secured thereby, or directing enforcement of the mortgage.
(e) If Tenant fails to maintain any of the insurance as required by the Lease.
(f) If Tenant breaches any other provision of the Lease and fails to cure the breach within fifteen (15) days after Landlord sends it written notice of the breach, or if the breach cannot be cured within fifteen (15) days, then if Tenant does not proceed with reasonable diligence to cure the breach within such additional time as may be reasonably necessary under the circumstances, not to exceed sixty (60) days.
29.2 If Tenant is in default, then Landlord may take any one or more of the following actions:
(a) Landlord may re-enter and take possession of all or any part of the Premises and remove Tenant and any person claiming under Tenant from the Premises, using reasonable force, if necessary, and without committing a trespass or becoming liable for any loss or damage that may be occasioned thereby. Landlord may also change the locks to the Premises without notice at Tenant’s property 's expense. Re-entry and possession of the Premises will not by themselves terminate the Lease.
(b) Landlord may remove any property, including fixtures, from the Premises and store the same at Tenant's expense in a Court of competent jurisdictionwarehouse or any other location, or if a petition is filed by Landlord may lease the Tenant under any bankruptcy laws for relief Premises with the property on the Premises pending removal or composition of its debts, or if other disposition. If Landlord leaves the Tenant is declared bankrupt then, and in any of said cases, the Municipality lawfully may immediately or at any time thereafter and without demand or notice enter upon property on the Premises or stores it at another location owned or controlled by Landlord, then Landlord may charge Tenant a reasonable fee for storing and handling the property comparable to what Landlord would have had to pay to a third party for such services. Landlord will not be liable under any circumstance to Tenant or to anyone else for any damage to the property. Provided that Tenant does not remove Tenant's property within twenty (20) days after Landlord has taken possession of all or any part thereof in the name of the whole and repossess Premises, Landlord may proceed to sell Tenant's property, which shall be sold in accordance with the same, including all equipment and trade fixtures therein and/or annexed thereto, as laws of the Municipality’s former estate state in which the Premises are located.
(c) Landlord may collect any rents or other payments that become due from any subtenant, concessionaire or licensee, and expel the Tenant may in its own name or in Tenant's name bring suit for such amounts, and those claiming through or under the Tenant and remove its effects, forcibly if necessarysettle any claims therefor, without being deemed guilty approving the terms of any manner of trespass the sublease or Tenant's agreement with the concessionaire or licensee and without prejudice to Landlord's right to terminate the sublease or agreement without cause and remove the subtenant, concessionaire or licensee from the Premises.
(d) [Intentionally Deleted]
(e) Landlord may relet the Premises at whatever rent and on whatever terms and conditions it deems advisable. The term of any remedies which might otherwise new lease may be used shorter or longer than the remaining term of this Lease. In reletting the Premises, Landlord may make any alterations or repairs to the Premises it feels necessary or desirable; may subdivide the Premises into more than one unit and lease each portion separately; may sell Tenant's improvements, fixtures and other property located on the Premises to the new tenant, or include such improvements, fixtures and property as part of the Premises without additional cost; may advertise the Premises for arrears sale or lease; may hire brokers or other agents; and, may do anything else it deems necessary or helpful in reletting the Premises. Tenant will be liable to Landlord for all costs and expenses of rent or proceeding breach of covenantsthe reletting including but not limited to rental concessions to the new tenant, broker's commissions and tenant improvements, and upon such entrywill remain liable for the Minimum Monthly Rent and all other charges arising under the Lease, less any income received from the new tenant, unless the Lease is terminated as set forth below. In the event an existing tenant of the project is moved into the Premises, Tenant will be liable for the damages suffered by Landlord (as calculated herein) as the result of the vacancy of the premises occupied by the existing tenant.
(f) Landlord may terminate this the Lease at any time after Tenant defaults by sending a written notice to Tenant expressly stating that the Lease is being terminated. Termination will be effective on the date of the notice or on any other date set forth in the notice. Until Landlord sends Tenant such a notice, the Lease will remain in full force and effect, and Tenant will remain liable for paying the Minimum Monthly Rent and other charges that come due under the Lease and for performing all other terms and conditions of the Lease; . No other action by Landlord, including repossession of the Premises, removing or selling Tenant's separate property, reletting the Premises, or filing suit for possession or for damages, will terminate the Lease or release Tenant from its continuing liability for complying with the terms and conditions.
(g) Landlord may recover from Tenant all costs and expenses Landlord incurs as a direct or indirect consequence of Tenant's breach, including the cost of storing and selling Tenant's property, reletting the Premises, and bringing suit against Tenant for possession or damages. If Landlord made or paid for any improvements to the Premises, or granted Tenant any improvement allowance or credit against the Minimum Monthly Rent or other charges due hereunder for Tenant's improvements, then Landlord shall also be entitled to recover the unamortized portion of the cost of such improvements or the amount of such allowance or credit, determined by multiplying the total amount of such cost or allowance or credit by a fraction, the denominator of which is the total number of months of the initial Lease Term and the numerator of which is the number of months of the Lease Term remaining at the time of Tenant's default. Also, if the Lease provides for any months for which no Minimum Monthly Rent or a reduced Minimum Monthly Rent is payable, or for any other rent concession to Tenant, then, upon default, Tenant covenants in case of such termination to pay and be shall become liable for, on the days originally fixed for the payment thereoffull amount of the Minimum Monthly Rent (or other rent concession), amounts equal plus applicable taxes, for such months, and Landlord shall be entitled to recover as additional rent the several installments of amount that would have been payable by Tenant for such months if the Minimum Monthly Rent provided for herein had been payable by Tenant throughout the entire Lease Term. Unless Landlord terminates the Lease, Tenant will also remain liable for any difference between the Minimum Monthly Rent and other charges called for by the Lease and the rent and other charges reserved as collected by Landlord from any new tenant. For any month in which Landlord collects less from a successor tenant than is payable under this Lease, Landlord may demand that Tenant immediately make up the difference, and Landlord may bring suit against Tenant if Tenant fails to do so. If Landlord does terminate the Lease, then Tenant will no longer be liable on a continuing monthly basis for the Minimum Monthly Rent and other charges that would have become due under the terms of this Lease become due for the remainder of the then current term if this Lease had not been terminated or if Municipality had not entered or reentered as aforesaidthereafter, and the but Tenant covenants to pay and be will remain liable for all losses and damages suffered by reason sums accrued under the Lease to the date of such termination, includingas well as for all costs and expenses incurred by Landlord, but not limited toand any other damages sustained by Landlord, as a consequence of Tenant's breach. Also Landlord may recover from Tenant the reasonable documented costs difference between the present value at the date of legal counsel retained by termination to the Municipality and all reasonable documented expenses end of the Municipality Lease Term and the present value of the Minimum Monthly Rent and other charges Landlord could have obtained if Landlord had rented the Premises for enforcement hereunderthe same period at its fair rental value at the end of termination. In addition The present value of the amounts referred to all other legal and equitablein the preceding sentence shall be computed using a discount rate equal to the prime rate charged by Wells Fargo Bank (or its successor) at the date xx xxrmination.
(h) Landlord may sue Tenant for possession of the Premises, remedies, Landlord shall have for xxxages for breach of the right to remove equipment/structures at Tenant’s expenseLease, and for other appropriate relief, either in the right to declare equipment/structures abandoned and take ownership thereof, all without liability to Landlordsame or in separate actions. Landlord shall also have may recover all costs and expenses it incurs in any such suit, including reasonable attorneys' fees.
(i) Landlord may exercise any other right or remedy available at law or in equity for breach of contract, damages or other appropriate relief. The rights and remedies described herein are cumulative, and Landlord's exercise of any one right will not preclude the simultaneous exercise of any other right to declare any surety forfeited and to apply same to any reasonable documented expenses Landlord incurs on account of Tenant’s defaultor remedy.
29.3 [Intentionally Deleted]
Appears in 1 contract
Tenants Default and Landlords Remedies. This 28.1 Tenant will be in default under the Lease is made on condition that if any of the following occurs, and same shall be deemed an “Event of Default”:
(a) If Tenant should neglect or fail fails to pay the rent due hereunder Minimum Monthly Rent or make any other payment required by the Lease within ten three (103) days Business Days after receipt Landlord sends Tenant a written notice or demand for payment.
(b) If on two or more occasions in any twelve month period Landlord does not receive either Tenant’s regular monthly payment of Minimum Monthly Rent and other regularly recurring charges on or before the first Business Day of the month or any other payment on or before the date it is due.
(c) If Tenant assigns the Lease or mortgages its interest in the Lease or sublets any part of the Premises without first obtaining Landlord’s written consent, if required by Article 23.
(d) If Tenant of notice from Municipality of such nonpaymentabandons the Premises, or if the Tenant shall neglect or fail ceases to perform or observe any of the other terms, provisions, conditions or covenants herein contained and operate its business on the Tenant’s part to be performed or observed for a period of thirty (30) days after receipt by the Tenant of notice of such neglect or failure; provided that Tenant shall have such extended period as may be required beyond thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and Tenant commences the cure within the initial thirty (30) day period and thereafter continuously and diligently pursues the cure to completion,Premises, or if becomes bankrupt or insolvent, or makes any general assignment shall be made of the Tenant’s all or a substantial part of its property for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer shall be receiver is appointed to operate Tenant’s business or to take charge possession of all or a substantial part of Tenant’s property.
(e) If a lien attaches to the Lease or to Tenant’s interest in the Premises, and Tenant fails to post a bond or other security or to have the lien released within ten (10) business days of its notification thereof, or if a mortgagee institutes proceedings to foreclose its mortgage against Tenant’s leasehold interest or other property and Tenant fails to have the foreclosure proceedings dismissed within ten (10) calendar days after the entry of any judgment or order declaring the mortgage to be valid and Tenant to be in default on the obligation secured thereby, or directing enforcement of the mortgage.
(f) If Tenant fails to maintain any of the insurance as required by the Lease, and fails to obtain such insurance within fifteen (15) days after Landlord sends it written notice of such failure.
(g) If Tenant breaches any other provision of the Lease and fails to cure the breach within fifteen (15) days after Landlord sends it written notice of the breach, or if the breach cannot be cured within fifteen (15) days, then if Tenant does not proceed with reasonable diligence to cure the breach within such additional time as may be reasonably necessary under the circumstances, not to exceed sixty (60) days.
28.2 If Tenant is in default, then Landlord may take any one or more of the following actions:
(a) Terminate this Lease by giving Tenant written notice thereof or by making entry thereon for the express purpose of terminating this Lease, and upon the delivery of such notice or the making of such entry this Lease shall terminate.
(b) Landlord may re-enter and take possession of all or any part of the Premises without committing a trespass or becoming liable for any loss or damage that may be occasioned thereby. Except if expressly intended by Landlord as described in Section 28.2(a), re-entry and possession of the Premises will not by themselves terminate the Lease.
(c) If Landlord shall have taken possession of the Premises, Landlord may remove any property, including fixtures, from the Premises and store the same at Tenant’s property by expense in a Court of competent jurisdictionwarehouse or any other location, or if a petition is filed by Landlord may lease the Tenant under any bankruptcy laws for relief property on the Premises pending sale or composition of its debts, or if other disposition. If Landlord leaves the Tenant is declared bankrupt then, and in any of said cases, the Municipality lawfully may immediately or at any time thereafter and without demand or notice enter upon property on the Premises or stores it at another location owned or controlled by Landlord, then Landlord may charge Tenant a reasonable fee for storing and handling the property comparable to what Landlord would have had to pay to a third party for such services. Landlord will not be liable under any part thereof circumstance to Tenant or to anyone else for any damage to the property. Landlord may proceed to sell Tenant’s property, which shall be sold in accordance with the name laws of the whole state in which the Premises are located.
(d) Landlord may collect any rents or other payments that become due from any subtenant, concessionaire or licensee, and repossess may in its own name or in Tenant’s name bring suit for such amounts, and settle any claims therefore, without approving the same, including all equipment and trade fixtures therein and/or annexed thereto, as terms of the Municipalitysublease or Tenant’s former estate and expel agreement with the Tenant and those claiming through concessionaire or under the Tenant and remove its effects, forcibly if necessary, without being deemed guilty of any manner of trespass licensee and without prejudice to Landlord’s right to terminate the sublease or agreement without cause and remove the subtenant, concessionaire or licensee from the Premises.
(e) Landlord may relet the Premises at whatever rent and on whatever terms and conditions it deems advisable. The term of any remedies which might otherwise new lease may be used shorter or longer than the remaining term of this Lease. In reletting the Premises, Landlord may make any alterations or repairs to the Premises it feels necessary or desirable; may subdivide the Premises into more than one unit and lease each portion separately; may sell Tenant’s improvements, fixtures and other property located on the Premises to the new tenant, or include such improvements, fixtures and property as part of the Premises without additional cost; may advertise the Premises for arrears sale or lease; and may hire brokers or other agents. Tenant will be liable to Landlord for all costs and expenses of rent or proceeding breach of covenantsthe reletting including but not limited to rental concessions to the new tenant, broker’s commissions and tenant improvements, and upon will remain liable for the Minimum Monthly Rent and all other charges arising under the Lease, less any income received from the new tenant, unless the Lease is terminated as set forth below.
(f) Landlord may recover from Tenant all costs and expenses Landlord incurs as a direct or indirect consequence of Tenant’s breach, including the cost of storing and selling Tenant’s property, reletting the Premises, and bringing suit against Tenant for possession or damages. If Landlord made or paid for any improvements to the Premises, or granted Tenant any improvement allowance or credit against the Minimum Monthly Rent or other charges due hereunder for Tenant’s improvements, then Landlord shall also be entitled to recover the unamortized portion of the cost of such entryimprovements or the amount of such allowance or credit, may terminate this Lease; determined by multiplying the total amount of such cost or allowance or credit by a fraction, the denominator of which is the total number of months of the initial Lease Term and the numerator of which is the number of months of the Lease Term remaining at the time of Tenant’s default. Also, if the Lease provides for any months for which no Minimum Monthly Rent or a reduced Minimum Monthly Rent is payable, or for any other rent concession to Tenant, then, upon default, Tenant covenants in case shall become liable for the full amount of the Minimum Monthly Rent (or other rent concession), plus applicable taxes, for such months, and Landlord shall be entitled to recover as additional rent the amount that would have been payable by Tenant for such months if the Minimum Monthly Rent provided for herein had been payable by Tenant throughout the entire Lease Term. If Landlord does terminate the Lease, then Tenant will remain liable for all sums accrued under the Lease to the date of termination, as well as for all costs and expenses incurred by Landlord and any other damages sustained by Landlord as a consequence of Tenant’s breach. Also Landlord may elect to recover from Tenant the difference between the present value at the date of termination of the Minimum Monthly Rent and other charges that were to have been due under this Lease from such termination date to the end of the Lease Term and the present value as of such termination to pay date of the Minimum Monthly Rent and be liable for, on other charges Landlord could have obtained if Landlord had rented the days originally fixed Premises for the payment thereof, same period at its fair rental value. The present value of the amounts referred to in the preceding sentence shall be computed using a discount rate equal to the several installments prime rate charged by Xxxxx Fargo Bank (or its successor) at the date of termination. Tenant shall be liable to Landlord for any difference between the Minimum Monthly Rent and other charges called for by the Lease and the rent and other charges reserved as would collected by Landlord from any new tenant. For any month in which Landlord collects less from a successor tenant than is payable under this Lease, Landlord may demand that Tenant immediately make up the difference, and Landlord may bring suit against Tenant if Tenant fails to do so, provided that Landlord shall give Tenant credit for any sums collected by Landlord, if any, from Tenant under the terms fourth sentence of this Lease become due paragraph.
(g) Landlord may xxx Tenant for the remainder possession of the then current term if this Lease had not been terminated or if Municipality had not entered or reentered as aforesaidPremises, for damages for breach of the Lease, and for other appropriate relief, either in the Tenant covenants to pay same or in separate actions. Landlord may recover all costs and be liable expenses it incurs in any such suit, including reasonable attorneys’ fees.
(h) Landlord may exercise any other right or remedy available at law or in equity for all losses breach of contract, damages or other appropriate relief. The rights and damages suffered by reason of such termination, including, but not limited to, the reasonable documented costs of legal counsel retained by the Municipality and all reasonable documented expenses of the Municipality for enforcement hereunder. In addition to all other legal and equitable, remedies, Landlord shall have the right to remove equipment/structures at Tenant’s expenseremedies described herein are cumulative, and Landlord’s exercise of any one right will not preclude the simultaneous exercise of any other right or remedy.
28.3 If Tenant is in arrears in payment of Rent, Tenant waives its right, if any, to declare equipment/structures abandoned designate the items to which any payments made by Tenant are to be credited, and take ownership thereofLandlord may apply any payments made by Tenant to such items as Landlord sees fit, all without liability irrespective of any designation or request by Tenant as to Landlord. Landlord the items to which any such payments shall also have the right to declare any surety forfeited and to apply same to any reasonable documented expenses Landlord incurs on account of Tenant’s defaultbe credited.
Appears in 1 contract
Tenants Default and Landlords Remedies. This Lease is made on condition that if (a) Each of the following shall constitute an event of default (an "Event of Default") hereunder:
(i) Tenant should neglect or fail fails to pay Rent on the rent date due hereunder within ten (10subject to extension for any delay caused by Landlord in executing Holdback payment instructions to be sent to Escrow Agent in accordance with Section 36) and such failure continues for a period of five (5) days after receipt by Tenant of written notice from Municipality Landlord;
(ii) Tenant commences any proceeding under any law relating to bankruptcy, insolvency, reorganization or relief of such nonpaymentdebts, or if seeks appointment of a receiver, trustee, custodian or other similar official for Tenant or any guarantor of this Lease or for any substantial part of its property, or any such proceeding is commenced against Tenant and either remains undismissed for a period of one hundred twenty (120) days or results in the entry of an order for relief against Tenant which is not fully stayed within sixty (60) days after entry;
(iii) A transfer or assignment occurs in violation of Section 29 hereof;
(iv) If Tenant shall neglect or fail to perform or observe be in default under any other provision of the this Lease (other terms, provisions, conditions or covenants herein contained than those specified in this Section 29) and on the Tenant’s part to be performed or observed shall remain so for a period of thirty (30) days after receipt by the Landlord has provided written notice to Tenant of notice of such neglect or failure; default, provided that if any such default cannot reasonably be remedied by Tenant within such thirty (30) period, then Tenant shall have such extended period additional time as may shall be required beyond thirty (30) days if the nature of the cure reasonably necessary to remedy such default, provided that during such time Tenant is such that it reasonably requires more than thirty (30) days and Tenant commences the cure within the initial thirty (30) day period and thereafter continuously and diligently pursues pursuing the remedy necessary to cure to completion,such default.
(b) Upon the occurrence of any one or more Events of Default, or if Landlord may, at Landlord's option, without any assignment shall be made of the Tenant’s property for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer shall be appointed to take charge of all or any part of the Tenant’s property by a Court of competent jurisdiction, or if a petition is filed by the Tenant under any bankruptcy laws for relief or composition of its debts, or if the Tenant is declared bankrupt then, and in any of said cases, the Municipality lawfully may immediately or at any time thereafter and without demand or notice enter upon whatsoever (except as expressly required in this Section 22):
(i) Terminate this Lease by giving Tenant notice of termination, in which event this Lease shall expire and terminate on the date specified in such notice of termination and all rights of Tenant under this Lease and in and to the Demised Premises or any part thereof shall terminate. Tenant shall remain liable for all obligations under this Lease arising up to the date of such termination, and Tenant shall surrender the Demised Premises to Landlord on the date specified in the name of the whole such notice; or
(ii) demand and repossess the same, including all equipment and trade fixtures therein and/or annexed thereto, as of the Municipality’s former estate and expel collect Rent from the Tenant and those claiming through as it becomes due; or
(iii) Pursue such other remedies as are available at law or under the equity, but expressly excluding any acceleration or Rent..
(c) If this Lease shall terminate as a result of or while there exists an Event of Default hereunder, any funds of Tenant and remove its effects, forcibly if necessary, without being deemed guilty of any manner of trespass and without prejudice held by Landlord may be applied by Landlord to any remedies which might otherwise be used damages payable by Tenant (whether provided for arrears of rent herein or proceeding breach of covenants, and upon such entry, may terminate this Lease; and the Tenant covenants in case by law) as a result of such termination or default.
(d) Neither the commencement of any action or proceeding, nor the settlement thereof, nor entry of judgment thereon shall bar Landlord from bringing subsequent actions or proceedings from time to pay and time, nor shall the failure to include in any action or proceeding any sum or sums then due be liable for, on a bar to the days originally fixed maintenance of any subsequent actions or proceedings for the payment thereof, amounts equal recovery of such sum or sums so omitted.
(e) No agreement to accept a surrender of the several installments Demised Premises and no act or omission by Landlord or Landlord's agents during the Term shall constitute an acceptance or surrender of rent the Demised Premises unless made in writing and other charges reserved signed by Landlord. No re-entry or taking possession of the Demised Premises by Landlord shall constitute an election by Landlord to terminate this Lease unless a written notice of such intention is given to Tenant. No provision of this Lease shall be deemed to have been waived by either party unless such waiver is in writing and signed by the party making such waiver. Landlord's acceptance of Rent in full or in part following an Event of Default hereunder shall not be construed as would under a waiver of such Event of Default. No custom or practice which may grow up between the parties in connection with the terms of this Lease become due for the remainder shall be construed to waive or lessen either party's right to insist upon strict performance of the then current term if terms of this Lease had not been terminated Lease, without a written notice thereof to the other party.
(f) Any and all remedies set forth in this Lease: (i) shall be in addition to any and all other remedies Landlord may have at law or if Municipality had not entered or reentered as aforesaidin equity, (ii) shall be cumulative, and the Tenant covenants to pay and (iii) may be liable for all losses and damages suffered pursued successively or concurrently as Landlord may elect. The exercise of any remedy by reason of such termination, including, but not limited to, the reasonable documented costs of legal counsel retained by the Municipality and all reasonable documented expenses of the Municipality for enforcement hereunder. In addition to all other legal and equitable, remedies, Landlord shall have not be deemed an election of remedies or preclude Landlord from exercising any other remedies in the right to remove equipment/structures at Tenant’s expense, and the right to declare equipment/structures abandoned and take ownership thereof, all without liability to Landlord. Landlord shall also have the right to declare any surety forfeited and to apply same to any reasonable documented expenses Landlord incurs on account of Tenant’s defaultfuture.
Appears in 1 contract
Samples: Agreement for Purchase and Sale (Dividend Capital Trust Inc)
Tenants Default and Landlords Remedies. This Lease Tenant shall be in default ---------------------------------------- hereunder if during the term of this lease:
(a) Tenant makes an assignment for the benefit of creditors; or (b) a voluntary petition is made on condition that if Tenant should neglect or fail to pay the rent due hereunder within ten (10) days after receipt filed by Tenant under any law having for its purpose the adjudication of notice from Municipality Tenant a bankrupt or the extension of such nonpaymentthe time or payment, composition, adjustment, modification, settlement, or if satisfaction of the liabilities of Tenant, reorganization of Tenant, or liquidation of Tenant, or (c) an involuntary petition is filed against Tenant under any law having for its purpose the adjudication of Tenant a bankrupt or the extension of the time of payment, composition, adjustment, modification, settlement or satisfaction of the liabilities of Tenant or to which any property of Tenant may be subject or the reorganization or liquidation of Tenant and such petition is not dismissed within sixty (60) days; or (d) a permanent receiver be appointed for the property of Tenant by reason of the insolvency or alleged insolvency of Tenant; or (e) Tenant shall neglect or fail to perform or observe default in the performance of any of the covenants of this Lease (other termsthan the covenants for the payment of Base Rent and Additional Rent, provisions, conditions or covenants herein contained other charges payable by Tenant hereunder) and on the Tenant’s part to be performed or observed for a period of such default is not cured within thirty (30) days after of receipt by the Tenant of notice of thereof (provided if such neglect or failure; provided that Tenant shall have cure cannot be reasonably completed within such extended period as may be required beyond thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and day period, Tenant shall not be in default as long as Tenant commences the to cure such failure within the initial such thirty (30) day period and thereafter continuously and diligently pursues the such cure to completion,); or (f) if Tenant shall default in the payment of any amount due hereunder and such payment is not made within five (5) business days after receipt of notice by Tenant of the non-receipt of such payment by Landlord.
b. Upon the occurrence of any of such events of default described in or elsewhere in this Lease (and after applicable notice has been given to Tenant and such default has not been used within the cure period), Landlord shall have the option to pursue any one or more of the following remedies without any notice or demand whatsoever:
(i) Landlord may (a) terminate this Lease or (b) terminate Tenant's right to possession only, without terminating the Lease.
(ii) Upon any termination of this Lease, whether by lapse of time or otherwise, or if upon termination of Tenant's right to possession without termination of the Lease, Tenant shall surrender possession and vacate the Premises immediately, and deliver possession thereof to Landlord, and Tenant hereby grants to Landlord full and free license to enter into and upon the Premises, to the extent permitted by applicable law, to repossess Tenant of the Premises and to expel or remove Tenant and any assignment others who may be occupying or be within the Premises and to remove any and all property therefrom without relinquishing Landlord's right to rent or any other right given to Landlord hereunder or by operation of law.
(iii) Upon termination of this Lease, whether by lapse of time or otherwise, Landlord shall be made of entitled to recover all appropriate damages, including the Tenant’s property for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer shall be appointed to take charge acceleration of all or any part of the Tenant’s property by a Court of competent jurisdiction, or if a petition is filed by the Tenant under any bankruptcy laws for relief or composition of its debts, or if the Tenant is declared bankrupt then, and in any of said cases, the Municipality lawfully may immediately or at any time thereafter and without demand or notice enter upon the Premises or any part thereof in the name of the whole and repossess the same, including all equipment and trade fixtures therein and/or annexed thereto, as of the Municipality’s former estate and expel the Tenant and those claiming through or under the Tenant and remove its effects, forcibly if necessary, without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or proceeding breach of covenants, and upon such entry, may terminate this Lease; and the Tenant covenants in case of such termination to pay and be liable for, on the days originally fixed for the payment thereof, amounts equal to the several installments of rent and other charges reserved as would under the terms of this Lease become Rent due hereunder for the remainder of the then current term
(iv) Upon any termination of Tenant's right to possession only without termination of this Lease, Landlord may, at landlord's option, enter into the Premises, remove Tenant's signs and other evidences of tenancy, and take and hold possession thereof as provided in subparagraph (ii) above, without such entry and possession terminating the Lease or releasing Tenant, in whole or in part, from any obligation, including Tenant's obligation to pay the Rent for the remainder of the term if (including only those options as previously exercised by Tenant).
(v) Pursuit of any of the foregoing remedies shall not preclude pursuit of any of the other remedies herein provided or any other remedies provided by law (all such remedies being cumulative), nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any Rent or other payments due to Landlord hereunder or of any of the terms provision and covenants herein contained. No act or thing done by Landlord or its agents during the term of this lease shall be deemed a termination of this Lease had not been terminated or if Municipality had not entered or reentered as aforesaidan acceptance of the surrender of the Premises, and no agreement to terminate this Lease or accept a surrender of the Tenant Premises shall be valid unless in writing signed by Landlord. No waiver by Landlord of any violation or breach of any of the terms, provisions and covenants herein contained shall be deemed or construed to pay constitute a waiver of any other violation or breach of any of the terms, provisions and covenants herein contained. Landlord's acceptance of the payment of rental or other payments hereunder after the occurrence of a default shall not be liable for all losses and damages suffered by reason construed as a waiver of such terminationdefault, including, but not limited to, the reasonable documented costs of legal counsel retained unless Landlord so notifies Tenant in writing. Forbearance by the Municipality and all reasonable documented expenses Landlord in enforcing one or more of the Municipality for enforcement hereunder. In addition remedies herein provided upon a default shall not be deemed or construed to all other legal and equitable, remedies, Landlord shall have the constitute a waiver of such default or of Landlord's right to remove equipment/structures at Tenant’s expense, and the right enforce any such remedies with respect to declare equipment/structures abandoned and take ownership thereof, all without liability to Landlord. Landlord shall also have the right to declare such default or any surety forfeited and to apply same to any reasonable documented expenses Landlord incurs on account of Tenant’s subsequent default.
Appears in 1 contract
Samples: Lease Agreement (Wells Real Estate Investment Trust Inc)
Tenants Default and Landlords Remedies. This Lease is made on condition that The following shall be considered a default by Tenant: if Tenant should neglect (a) any installment of Rent, Additional Rent, or fail to pay the rent any other charge due hereunder within remains unpaid for more than ten (10) days after receipt by Tenant of written notice from Municipality of such nonpayment, Landlord; or if the (b) Tenant shall neglect or fail fails to keep and perform or observe any of the other terms, provisions, covenants or conditions or covenants herein contained and on the Tenant’s part of this Lease to be kept and performed or observed by it and such failure continues for a period of thirty (30) days after receipt by the Tenant of written notice of such neglect or failure; from Landlord (provided that if such cure cannot be completed within such 30-day period, Tenant shall have such extended period not be in default as may be required beyond thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and long as Tenant commences the to cure such failure within the initial thirty (such 30) -day period and thereafter continuously and diligently pursues the such cure to completion,); or (c) Tenant’s interest in the Premises is sold under execution, attachment or other legal process (other than condemnation); or (d) proceedings in bankruptcy are instituted by or against Tenant which are not dismissed within sixty (60) days after the filing (or Tenant’s receipt of such filing if any proceeding is instituted against Tenant); or (e) Tenant makes a general assignment shall be made of the Tenant’s property for the benefit of all creditors; or (f) Tenant is subjected to a receivership. Upon the occurrence of any default by Tenant under this Lease, Landlord shall have the option, at Landlord’s election, to pursue any one or if more of the following remedies: (i) Landlord may cancel and terminate this Lease and dispossess Tenant;(ii) Landlord may elect to enter and repossess the Premises (whether or not Landlord has terminated the Lease) and take complete and peaceful possession of the Premises, remove all persons and all furniture, fixtures, equipment and other personal property located at the Premises owned or leased by Tenant (“Tenant’s Property”), by force or otherwise, without being liable in damages, in which event Tenant shall peacefully and quietly yield up and surrender the Premises; (iii) relet the Premises for Tenant’s account, holding Tenant liable in damages (for which Landlord may file a receiverlawsuit monthly or from time to time to recover) any Base Rent, trustee Additional Rent or other amounts required to be paid as they become due under this Lease, all expenses incurred in bankruptcy any such reletting and for any difference between the amount of Rent received from such reletting and any and all amounts due and payable under the terms of this Lease); or similar officer (vi) in the event of a default under (d), (e) or (f) of this Section 22, Landlord shall be appointed entitled to take charge accelerate all Base Rent and Additional Rent due hereunder (which Additional Rent shall be deemed to be for purposes of all or any part acceleration hereunder a monthly amount equal to the average monthly amount of the Tenant’s property Additional Rent paid hereunder prior to such breach), which accelerated amount shall be due and payable upon demand by a Court of competent jurisdiction, or if a petition is filed by the Tenant under any bankruptcy laws for relief or composition of its debts, or if the Tenant is declared bankrupt then, Landlord; and in any of said cases, the Municipality lawfully (v) Landlord may immediately or at any time thereafter and without demand or notice enter upon the Premises or any part thereof in the name of the whole and repossess the same, including all equipment and trade fixtures therein and/or annexed thereto, as of the Municipality’s former estate and expel the do whatever Tenant and those claiming through or under the Tenant and remove its effects, forcibly if necessary, without being deemed guilty of any manner of trespass and without prejudice is obligated to any remedies which might otherwise be used for arrears of rent or proceeding breach of covenants, and upon such entry, may terminate this Lease; and the Tenant covenants in case of such termination to pay and be liable for, on the days originally fixed for the payment thereof, amounts equal to the several installments of rent and other charges reserved as would do under the terms of this Lease become due and Tenant shall reimburse Landlord on written demand for any expenses which Landlord may incur in effecting compliance with Tenant’s obligations under this Lease together with interest on such amounts expended at the Rate from the date the expenses are incurred through the date repaid, and Landlord shall not be liable for any damages resulting to Tenant from such action. All the remedies of Landlord upon the occurrence of a default by Tenant shall be cumulative, and, in addition, Landlord may also pursue any other remedies permitted under this Lease, by law or in equity. Forbearance by Landlord to enforce one or more of the remedies upon any default by Tenant, shall not constitute a waiver of such default. The failure of Landlord to insist at any time upon the strict performance of any covenant or agreement or to exercise any option, right, power or remedy contained in this Lease shall not be construed as a waiver or a relinquishment thereof for the remainder future. No payment by Tenant or receipt by Landlord of a lesser amount than the monthly installment of Rent, Additional Rent or other amount due under this Lease shall be deemed to be other than on account of the then current term earliest Rent, Additional Rent or other amount due, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent, Additional Rent or other amount due be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of such Rent, Additional Rent or other amount due or pursue any other remedy provided in this Lease. In the event of default, Landlord shall use good faith efforts to mitigate damages caused by the default. Notwithstanding any other provision herein concerning cure periods, Landlord may cure any default for the account of Tenant after such notice to Tenant, if this Lease had not been terminated any, as is reasonable under the circumstances (including telephone notice) if the curing of such default prior to the expiration of the applicable cure period is reasonably necessary to prevent likely damage to the Premises or if Municipality had not entered other improvements or reentered as aforesaidpossible injury to persons, or to protect Landlord’s interest in its property or the Premises, and the Tenant covenants to pay reimbursement and be liable for all losses and damages suffered by reason of such termination, including, but not limited to, the reasonable documented costs of legal counsel retained by the Municipality and all reasonable documented expenses administrative change provisions of the Municipality for enforcement hereunder. In addition to all other legal and equitable, remedies, Landlord immediately preceding sentence shall have the right to remove equipment/structures at Tenant’s expense, and the right to declare equipment/structures abandoned and take ownership thereof, all without liability to Landlord. Landlord shall also have the right to declare any surety forfeited and to apply same to any reasonable documented expenses Landlord incurs on account of Tenant’s defaultapply.
Appears in 1 contract
Tenants Default and Landlords Remedies. This All rights and remedies of the Landlord herein enumerated shall be cumulative, and none shall exclude any other right or remedy allowed by law. In addition to the other remedies in this Lease is made on condition that if provided, the Landlord shall be entitled to restraint by injunction of the violation or attempted violation of any of the covenants, agreements or conditions of this Lease.
(a) Any one of the following events shall be deemed to be an "Event of Default" by Tenant should neglect or fail under this Lease:
(i) Tenant fails to pay any installment of Annual Basic Rent or Additional Rent when due, or any other payment or reimbursement to Landlord required herein when due, and such failure shall continue for a period of five (5) days from the rent due hereunder date such payment was due;
(ii) Tenant defaults in the prompt and full performance of any other provision of this Lease and such default continues for twenty (20) days after notice from Landlord to Tenant; or, if such breach or noncompliance cannot be reasonably cured within such twenty (20) day period, Tenant does not, in good faith, commence to cure such breach or noncompliance within such twenty (20) day period;
(iii) If the Tenant shall (a) apply for consent to the appointment of a receiver, trustee or liquidator of the Tenant or of all or a substantial part of its assets; (b) admit in writing its inability to pay its debts as they come due; (c) make a general assignment for the benefit of creditors; (d) file a petition or any answer seeking reorganization or arrangement with creditors or to take advantage of any insolvency law other than the Federal Bankruptcy Code; (e) file an answer admitting the material allegations of a petition filed against the Tenant in any reorganization or insolvency proceeding, other than a proceeding commenced pursuant to the Federal Bankruptcy Code, or if any order, judgment or decree shall be entered by any court of competent jurisdiction, except for a bankruptcy court or a federal court sitting as a bankruptcy court, adjudicating the Tenant insolvent or approving a petition seeking reorganization of the Tenant or appointing a receiver, trustee or liquidator of the Tenant or of all or a substantial part of its assets; or (f) make a transfer in fraud of creditors, then in any such events, in addition to other rights provided for herein, Landlord may give to the Tenant a notice of intention to end the Term of this Lease, specifying a day not earlier than ten (10) days thereafter, and upon the giving of such notice the Term of this Lease and all rights, title and interest of the Tenant hereunder shall expire as fully and completely on the day so specified as if that day were the date herein specifically fixed for the expiration of the Term;
(iv) Tenant shall abandon or vacate any substantial portion of the Premises;
(v) Tenant's interest under this Lease or in the Premises is transferred or passes to, or devolves upon, any other person or entity in violation of Section 17 of this Lease; or
(vi) Tenant shall fail to discharge any lien placed upon the Premises or upon Tenant's interest in the Premises by any creditor and such lien is not discharged or disposed of in accordance with this Lease.
(b) Upon the occurrence of any of such Event of Default described herein, Landlord shall have the option to pursue any or all of the following remedies:
(i) If Tenant fails to make any payment or perform any other act on its part to be made or performed under this Lease, the Landlord may, but shall not be obligated to, after receipt reasonable notice to Tenant and without waiving or releasing the Tenant from any obligation under this Lease, make such payment or perform such other act to the extent the Landlord may deem desirable, and in connection therewith to pay expenses and employ counsel. The Tenant agrees to pay reasonable attorney's fees if legal action is required to enforce performance by Tenant of any condition, obligation or requirement hereunder. All sums so paid by the Landlord and all expenses in connection therewith, together with interest thereon at the rate of Twelve Percent (12%) per annum from the date of payment, shall be deemed Additional Rent hereunder and payable at the time of any installment of Rent thereafter becoming due, and the Landlord shall have the same rights and remedies for the non-payment thereof, or of any other Additional Rent, as in the case of default in the payment of Rent.
(ii) Terminate this Lease by giving to the Tenant a notice from Municipality of intention to end the Term of this Lease, specifying a day not earlier than three (3) days thereafter, and, upon the giving of such nonpaymentnotice, this Lease shall terminate on the day so specified, except as to Tenant's liability to pay rent and other charges for the remaining Term of this Lease, together with all arrearages, whereupon Tenant shall immediately surrender possession of the Premises to Landlord, and hereby grants to the Landlord full and free license to enter into and upon the Premises in such event with or without process of law and to repossess the Premises as the Landlord's former estate and, if Tenant fails so to do, Landlord may, without prejudice to any other remedy which it may have for possession or arrearages in Annual Base Rent, Additional Rent, or other charges, enter upon and take possession of the Premises and expel or remove Tenant, as well as any other person who may be occupying such Premises or any part thereof, by force if necessary, including removal of all personal property therein, without being liable for prosecution or any claim of damages therefor, and change the locks on the Premises.
(iii) If the Tenant abandons or fails to operate in the Premises or the Landlord otherwise becomes entitled so to elect, and the Landlord elects, without terminating the Lease, to endeavor to relet the Premises, the Landlord may, at the Landlord's option, enter into the Premises, remove the Tenant's signs, personal property, and other evidence of tenancy, and take and hold possession thereof, without such entry and possession terminating the Lease or releasing the Tenant, in whole or in part, from the Tenant's obligation to pay the Rent hereunder for the full Term as provided in the Lease. Upon and after entry into possession without termination of the Lease, the Landlord may relet the Premises or any part thereof for the account of the Tenant to any person, firm or corporation other than the Tenant for such rent, for such time and upon such terms as the Landlord shall determine to be reasonable. In any such case, the Landlord may make repairs, alterations and additions in or to the Premises and redecorate the same to the extent deemed by the Landlord necessary or desirable.
(c) If this Lease is terminated under the provisions of Section 23(b)(ii) or if the Landlord shall reenter the Premises under the provisions of Section 23(b)(iii), or in the event of the termination of this Lease, or of reentry, by or under any summary or other proceeding or action of any provision of law by reason of default hereunder on the part of the Tenant, Tenant shall neglect or fail pay to Landlord as damages in an amount equal to the Rent and other sums which would have been owed by Tenant hereunder for the balance of the Term, less the net proceeds, if any, of any reletting of the Premises by Landlord, after deducting all Landlord's expenses in connection with such reletting, including, but without limitation, all repossession costs, brokerage commissions, legal expenses, attorneys' fees, expenses of employees, alteration and repair costs, and expenses of preparation for such reletting of the Premises, As used herein, the phrase "Preparation for such Reletting" shall mean restoring the Premises to a condition that is suitable for a new tenant, including any and all costs for tenant finish work for a new tenant. Landlord shall be entitled to collect such damages from Tenant monthly on the days on which the Rent and other amounts would have been payable under this Lease, and Landlord shall be entitled to receive the same from Tenant on each such day. Alternatively, at the option of Landlord, Landlord shall be entitled to recover forthwith against Tenant, as damages for the loss of the bargain and not as a penalty: (i) the worth at the time of award of any unpaid Rent and other sums due and payable which had been earned prior to return of possession of the Premises to Landlord; plus (ii) the worth at the time of award of the amount of unpaid Rent and other sums which would have been payable after the date of return of possession of the Premises until the time of award which exceeds the amount of such Rent loss that Tenant proves could have been reasonably avoided by Landlord; plus (iii) the worth at the time of award of the amount by which the unpaid Rent including sums for estimated Operating Costs which would have been incurred and any other sums due for the balance of the Term after the time of award that exceeds the amount that Tenant proves could be reasonably avoided by Landlord; plus (iv) any other amounts to compensate Landlord for the detriment proximately caused by Tenant's failure to perform Tenant's obligations under this Lease, or observe which, in the ordinary course of things, would be likely to result therefrom, including, without limitation, any costs or expenses incurred by Landlord: (i) in retaking possession of the Premises; (ii) in maintaining, repairing, preserving, restoring, replacing, cleaning, altering or rehabilitating the Premises or any portion thereof, including such acts for reletting to a new tenant or tenants; (iii) for leasing commissions; or (iv) for any other termscosts necessary or appropriate to relet the Premises; plus (v) at Landlord's election, provisionssuch other amounts and remedies in addition to or in lieu of the foregoing as may be permitted from time to time by the laws of the State of Colorado. The "worth at the time of award" of the amounts due prior to the date of the award is computed by allowing interest compounded annually, conditions at Twelve Percent (12%), on all unpaid Rent and other sums due and payable. The "worth at the time of award" of the amounts due after the date of the award is computed by discounting such amount at the discount rate equal to the prime rate charged from time to time by Norwest Bank, N.A., in Denver, Colorado, or covenants herein contained its successor(s).
(d) Tenant agrees it would be difficult for the Landlord to prove the amount of damages it will incur as a result of any breach of the Lease by Tenant. Tenant hereby agrees that providing for the above liquidated sums in addition to, and on not in lieu of, other amounts due and owing amount to a reasonable sum due and owing the Landlord in the event of a breach of this Lease by Tenant.
(e) Any and all property which may be removed from the Premises by the Landlord pursuant to the authority of the Lease or of law, to which the Tenant is or may be entitled, may be handled, removed or stored by the Landlord at the risk, cost and expense of the Tenant’s part , and the Landlord shall in no event be responsible for the value, preservation or safekeeping thereof. The Tenant shall pay to the Landlord, upon demand, any and all expenses incurred in such removal and all storage charges against such property so long as the same shall be performed in the Landlord's possession or observed for a period under the Landlord's control. Any such property of the Tenant not removed from the Premises or retaken from storage by the Tenant within thirty (30) days after receipt the end of the Term or of the Tenant's right to possession of the Premises, however terminated, shall be conclusively deemed to have been forever abandoned by the Tenant of notice of such neglect or failure; provided that Tenant shall have such extended period as and either may be required beyond thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and Tenant commences the cure within the initial thirty (30) day period and thereafter continuously and diligently pursues the cure to completion,, or if any assignment shall be made of the Tenant’s property for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer shall be appointed to take charge of all or any part of the Tenant’s property by a Court of competent jurisdiction, or if a petition is filed by the Tenant under any bankruptcy laws for relief or composition of its debts, or if the Tenant is declared bankrupt then, and in any of said cases, the Municipality lawfully may immediately or at any time thereafter and without demand or notice enter upon the Premises or any part thereof in the name of the whole and repossess the same, including all equipment and trade fixtures therein and/or annexed thereto, as of the Municipality’s former estate and expel the Tenant and those claiming through or under the Tenant and remove its effects, forcibly if necessary, without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or proceeding breach of covenants, and upon such entry, may terminate this Lease; and the Tenant covenants in case of such termination to pay and be liable for, on the days originally fixed for the payment thereof, amounts equal to the several installments of rent and other charges reserved as would under the terms of this Lease become due for the remainder of the then current term if this Lease had not been terminated or if Municipality had not entered or reentered as aforesaid, and the Tenant covenants to pay and be liable for all losses and damages suffered by reason of such termination, including, but not limited to, the reasonable documented costs of legal counsel retained by the Municipality and all reasonable documented expenses Landlord as its property or may be disposed of the Municipality for enforcement hereunder. In addition to all other legal and equitable, remedies, in such manner as Landlord shall have the right to remove equipment/structures at Tenant’s expense, and the right to declare equipment/structures abandoned and take ownership thereof, all without liability to Landlord. Landlord shall also have the right to declare any surety forfeited and to apply same to any reasonable documented expenses Landlord incurs on account of Tenant’s defaultmay see fit.
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Samples: Lease Agreement (Matrix Bancorp Inc)
