Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an Event of Default ("Event of Default") under this Lease: (i) if Tenant shall fail to pay any Basic Rent, additional rent or other sum required to be paid by Tenant hereunder; or (ii) if Tenant shall fail to observe or perform any other provision hereof and such failure shall continue unremedied for 30 days after the earlier of (1) written notice thereof from Landlord or, the Note Purchaser or any holder of the Notes to Tenant, (2) the first date on which an officer of Tenant shall have actual knowledge that a default has occurred and is continuing under this Section 18(a)(ii); or (iii) if Tenant or any of its subsidiaries has entered against it or on its behalf an order for relief under the Federal bankruptcy laws, or any other applicable Federal or state bankruptcy, insolvency or other similar law, or becomes insolvent, or makes an assignment for the benefit of creditors, or fails to generally pay its debts as such debts become due, or Tenant or any such subsidiary applies for or consents to the appointment of a trustee or receiver or for the major part of its property; or (iv) a custodian (including without limitation a trustee or receiver) is appointed for Tenant or any of its subsidiaries or for the major part of the property of either and is not discharged within 90 days after such appointment; or (v) bankruptcy or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of its subsidiaries and, if instituted against Tenant or any such subsidiary are consented to or are not dismissed within 90 days after such institution; or (vi) if the Premises shall have been left abandoned for a period of 30 days; or (vii) if Tenant shall fail to observe or perform any provision of the Assignment of Lease dated as of _____________, ______ (the "Assignment") among Landlord, Tenant and the Note Purchaser relating to the Premises; of
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an Event of Default ("Event of Default") under this Lease:
(i) if Tenant If Lessee shall (1) fail to pay any Basic Rent, additional rent or other sum required when due (provided that for such failure to be paid by Tenant hereunder; or
pay to constitute an Event of Default such failure must continue to exist after Lessor has provided Lessee with five business (ii5) if Tenant shall days written notice of Lessee’s failure to timely pay such sums and provided that Lessor is obligated to provide such written notice no more than two times for any consecutive twelve (12) month period) or (2) fail to observe or perform any other provision hereof and such nonmonetary failure shall continue unremedied for 30 thirty (30) days after the earlier of (1) written notice to Lessee of such failure (provided that, in the case of any such failure which cannot be cured by the payment of money and cannot with diligence be cured within such thirty (30) day period, if Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof from Landlord orwith diligence, the Note Purchaser time within which such failure may be cured shall be extended for such period not to exceed one hundred and eighty (180) days as is necessary to complete the curing thereof with diligence);
(ii) If any representation or warranty of Lessee set forth in any holder certificate provided by Lessee pursuant to this Lease, shall prove to be incorrect in any material adverse respect as of the Notes to Tenant, (2) time when the first date on which an officer of Tenant same shall have actual knowledge been made in a way adverse to Lessor and Lessor shall suffer a loss or detriment as a result thereof, including, without limitation, the taking of any action (including, without limitation, the demise of the Premises to Lessee herein) in reliance upon such representation or warranty and, in each case, the facts shall not be conformed to the representation and warranty as soon as practicable in the circumstances (but in no event to exceed that a default has occurred period of time that in Lessor’s reasonable judgment is necessary to complete the curing thereof with diligence) after written notice to Lessee from Lessor of such inaccuracy and is continuing under this Section 18(a)(ii); orLessor restored to the position it would have enjoyed had such representation or warranty been accurate at the time it was made;
(iii) if Tenant If Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any of its subsidiaries has entered against it or on its behalf an order for relief under the Federal bankruptcy laws, or any other applicable Federal federal or state bankruptcy, insolvency law or other similar law, shall be adjudicated a bankrupt or becomes insolvent, become insolvent or makes shall make an assignment for the benefit of creditors, or fails if a petition proposing the adjudication of Lessee as a bankrupt or its reorganization pursuant to generally pay its debts as such debts become due, any federal or Tenant state bankruptcy law or any similar federal or state law shall be filed in any court and Lessee shall consent to or acquiesce in the filing thereof or such subsidiary applies for petition shall not be discharged or consents to denied within ninety (90) days after the appointment of a trustee or receiver or for the major part of its property; orfiling thereof;
(iv) If a custodian (including without limitation a receiver, trustee or receiver) is appointed for Tenant conservator of Lessee or any of its subsidiaries all or for the major part substantially all of the property assets of either Lessee or of the Premises or Lessee’s or estate therein shall be appointed in any proceeding brought by Lessee, or if any such receiver, trustee or conservator shall be appointed in any proceeding brought against Lessee and is shall not be discharged within 90 ninety (90) days after such appointment; or, or if Lessee shall consent to or acquiesce in such appointment;
(v) bankruptcy or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of its subsidiaries and, if instituted against Tenant or any such subsidiary are consented to or are not dismissed within 90 days after such institution; or
(vi) if If the Premises shall have been left abandoned for a period of 30 thirty (30) consecutive days;
(vi) If a Letter of Credit has been posted as the Security Deposit or other security hereunder, and the issuer of the Letter of Credit cancels, terminates or refuses to honor it, and Lessee shall fail to renew the Letter of Credit within thirty (30) days or shall fail to post a cash equivalent amount of the Letter of Credit or a replacement letter of credit within fifteen (15) days after notice of such cancellation, termination or refusal; orand
(vii) if Tenant If a monetary Event of Default occurs under this Lease more than three (3) times within any consecutive twelve (12) month period, irrespective of whether or not such Event of Default is cured.
(b) If an Event of Default shall fail have happened and be continuing, Lessor shall have the right to observe or perform any provision give Lessee notice of Lessor’s termination of the Assignment Term. Upon the giving of such notice, the Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the Term, and all rights of Lessee hereunder shall expire and terminate, but Lessee shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Lessor shall have the immediate right, whether or not the Term shall have been terminated pursuant to subsection 7.01(b), to reenter and repossess the Premises and the right to remove all persons and property (subject to Section 3.02) therefrom by summary proceedings, ejectment or any other legal action or in any lawful manner Lessor determines to be necessary or desirable. Lessor shall be under no liability by reason of any such reentry, repossession or removal. No such reentry, repossession or removal shall be construed as an election by Lessor to terminate the Term unless a notice of such termination is given to Lessee pursuant to subsection 7.01(b) or unless such termination is decreed by a court.
(d) At any time or from time to time after a reentry, repossession or removal pursuant to subsection 7.01(c), whether or not the Term shall have been terminated pursuant to subsection 7.01(b), Lessor may relet the Premises for the account of Lessee, in the name of Lessee or Lessor or otherwise. Lessor may collect any rents payable by reason of such reletting. Lessor shall not be liable for any failure to relet the Premises or for any failure to collect any rent due upon any such reletting. Notwithstanding the foregoing, Lessor agrees to make reasonable efforts to mitigate its damages under this Lease dated in the event Lessee actually vacates or advises Lessor that it is, as of _____________a specified date, ______ to vacate the Premises. The phrase “reasonable efforts,” as it relates to Lessor’s duty to attempt to relet the Premises, shall require Lessor to do only the following: (i) notify Lessor’s management company, if any, in writing of the "Assignment"availability of the Premises for reletting and authorize same to advertise as appropriate, (ii) among Landlordpost Lessor’s leasing contact telephone number in an appropriate area of the Premises, Tenant and (iii) show the Note Purchaser Premises to any prospective Lessee interested in the Premises and to any prospective Lessee specifically referred to Lessor by Lessee. Under any requirement of Lessor to use “reasonable efforts” as described herein, (i) Lessor shall not be required to relet the Premises ahead of any other properties in the same market not producing any income to Lessor; (ii) Lessor shall be entitled to consider Lessee quality, Lessee-mix, the financial condition of any prospective Lessee, the nature of the Premises, the proposed use of the Premises by any prospective Lessee, and any rights of existing sublessees located in the Premises, in making any leasing decision without being deemed to have violated its mitigation requirement hereunder; and (iii) under any new lease entered into by Lessor, Lessor may relet all or any portion of the Premises to create an appropriate block of space for a new Lessee, may relet for a greater or lesser term than that remaining at that time under this Lease, and may include free rent, concessions, inducements, alterations and upgrades in the new lease. If a reletting occurs, Lessor shall recoup all of its expenses of reletting (including, without limitation, all expenses relating to remodeling, alterations, repairs, capital improvements, brokerage fees, decorating fees, and fees for architects, designers, space planners and attorneys) before Lessee is entitled to a credit on the damages owed by Lessee hereunder. If Lessor shall do all the foregoing then, anything in this Lease, or any statute, or common law rule to the contrary notwithstanding, Lessor shall be deemed to have met its duty (if any) to mitigate its damages hereunder.
(e) No expiration or termination of the Term pursuant to subsection 7.01(b), by operation of law or otherwise, and no reentry, repossession or removal pursuant to subsection 7.01(c) or otherwise, and no reletting of the Premises pursuant to subsection 7.01(d) or otherwise, shall relieve Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, reentry, repossession, removal or reletting.
(f) In the event of any expiration or termination of the Term or reentry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Lessee shall pay to Lessor all Basic Rent, additional rent and other sums required to be paid by Lessee, in each case to and including the date of such expiration, termination, reentry, repossession or removal, and, thereafter, Lessee shall, until the end of what would have been the Term in the absence of such expiration, termination, reentry, repossession or removal and whether or not the Premises shall have been relet, be liable to Lessor for, and shall pay to Lessor, as liquidated and agreed current damages: (i) all Basic Rent, all additional rent and other sums which would be payable under this Lease by Lessee in the absence of any such expiration, termination, reentry, repossession or removal, together with all expenses of Lessor in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys’ fees and expenses (including, without limitation, fees and expenses of appellate proceedings), employee’s expenses, alteration costs and expenses of necessary preparation for such reletting), less (ii) the net proceeds, if any, of any reletting effected for the account of Lessee pursuant to subsection 7.01(d). Lessee shall pay such liquidated and agreed current damages on the dates on which rent would be payable under this Lease in the absence of such expiration, termination, reentry, repossession or removal, and Lessor shall be entitled to recover the same from Lessee on each such date.
(g) At any time after any such expiration or termination of the Term or reentry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, whether or not Lessor shall have collected any liquidated and agreed current damages pursuant to subsection 7.01(f), Lessor shall be entitled to recover from Lessee, and Lessee shall pay to Lessor on demand, as and for liquidated and agreed final damages for Lessee’s default and in lieu of all liquidated and agreed current damages beyond the date of such demand (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, additional rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, to date to which Lessee shall have satisfied in full its obligations under subsection 7.01(f) to pay liquidated and agreed current damages) for what would be the then unexpired Term in the absence of such expiration, termination, reentry, repossession or removal, discounted at the Reference Rate, over (b) the then fair rental value of the Premises; of, discounted at the Reference Rate for the same period. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Lessor shall be entitled to the maximum amount allowable under such law.
(h) To the extent the same may lawfully be waived, Lessee expressly, knowingly and voluntarily waives all constitutional, statutory and common law bonding requirements, including the requirement under Section 83.12, Florida Statutes (2006) that Lessor file a bond payable to Lessee in at least double the sum demanded by Lessor (or double the value of the property sought to be distrained), it being the intention of the parties that no bond shall be required to be filed by Lessor in any such distress action.
Appears in 1 contract
Conditional Limitations; Default Provisions. SECTION19.1 If any one or more of the following events ("EVENTS OF ----------- --------- DEFAULT") shall occur: --
(a) Any if default shall be made in the due and punctual payment of any Net Rent or additional rent payable under this Lease or any part thereof, when and as the same shall become due and payable, and such default shall continue for a period of ten (10) days after written notice from Landlord to Tenant specifying the items in default, provided that upon the second (2nd) default in any twelve (12) month period, no notice shall be required; or (b) if default shall be made by Tenant in the performance or compliance with any of the following occurrences agreements, terms, covenants or acts conditions in this Lease (other than those referred to in Section 19.01(a)) for a period of twenty (20) business days ---------------- after notice from Landlord to Tenant specifying the items in default, or in the case of a default or a contingency which cannot with due diligence be cured within said twenty (20) business day period, Tenant fails to proceed within said twenty (20) business day period to commence to cure the same and thereafter to prosecute the curing of such default with due diligence; or (c) subject to the provisions of Section 19.02 hereof, if Tenant shall constitute file ------------- a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act or any other present or future federal, state or other bankruptcy or insolvency statute or law, or shall seek or consent to or acquiesce in the appointment of any bankruptcy or insolvency trustee, receiver or liquidator of Tenant or of all or any substantial part of its properties or of the Demised Premises; or (d) subject to the provisions of Section 19.02 hereof, if a proceeding is ------------- commenced against Tenant seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act or any other present or future federal, state or other bankruptcy or insolvency statute or law and such proceeding shall not have been dismissed within ninety (90) days after notice from Landlord to Tenant of an intention to terminate this Lease for failure to remove the condition in question or if, within ninety (90) days after the appointment of any trustee, receiver or liquidator of Tenant or of all or substantially all of its properties or of the Demised Premises, such appointment shall not have been vacated or stayed on appeal or otherwise, or if, within ninety (90) days after the expiration of any such stay, such appointment shall not have been vacated, within ninety (90) days after notice (to be given not before the expiration of said ninety (90) days period) from Landlord to Tenant of an intention to terminate this Lease for failure to remove the condition in question; Then and in any such event Landlord at any time thereafter may give written notice to Tenant specifying such Event of Default and stating that this Lease and the Term hereby demised shall expire and terminate on the date specified in such notice, which shall be at least ten (10) days after the giving of such notice (provided that with respect to an Event of Default described in Section ------- 19.1(c) or ("Event d), no such notice need be given), and upon the date specified in ------ --- such notice (or, if no notice is required, upon the expiration of Default"the time - period set forth in Section 19.1(c) or (d)) this Lease and the Term hereby - demised and all rights of Tenant under this Lease:
(i) if , including any renewal - privileges whether or not exercised, shall expire and terminate, and Tenant - shall fail to pay any Basic Rent, additional rent or other sum required to be paid by Tenant hereunder; or
(ii) if Tenant shall fail to observe or perform any other provision hereof and such failure shall continue unremedied for 30 days after the earlier of (1) written notice thereof from Landlord or, the Note Purchaser or any holder of the Notes to Tenant, (2) the first date on which an officer of Tenant shall have actual knowledge that a default has occurred and is continuing under this Section 18(a)(ii); or
(iii) if Tenant or any of its subsidiaries has entered against it or on its behalf an order for relief under the Federal bankruptcy laws, or any other applicable Federal or state bankruptcy, insolvency or other similar law, or becomes insolvent, or makes an assignment for the benefit of creditors, or fails to generally pay its debts remain liable as such debts become due, or Tenant or any such subsidiary applies for or consents to the appointment of a trustee or receiver or for the major part of its property; or
(iv) a custodian (including without limitation a trustee or receiver) is appointed for Tenant or any of its subsidiaries or for the major part of the property of either and is not discharged within 90 days after such appointment; or
(v) bankruptcy or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of its subsidiaries and, if instituted against Tenant or any such subsidiary are consented to or are not dismissed within 90 days after such institution; or
(vi) if the Premises shall have been left abandoned for a period of 30 days; or
(vii) if Tenant shall fail to observe or perform any provision of the Assignment of Lease dated as of _____________, ______ (the "Assignment") among Landlord, Tenant and the Note Purchaser relating to the Premises; ofhereinafter provided. -
Appears in 1 contract
Sources: Net Lease (Orbit International Corp)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an Event of Default ("Event of Default") under this Lease:
(i) if Tenant If Lessee shall fail to pay any Basic Rent, additional rent or other sum sum, as and when required to be paid by Tenant hereunder; orLessee hereunder and such failure shall continue for five (5) days following notice from Lessor of such failure;
(ii) if Tenant If Lessee shall make or permit any assignment or transfer of this Lease in breach of this Lease or sublet the Premises or any portion thereof in breach of this Lease;
(iii) If Lessee shall fail to observe or perform any other provision hereof not specified in clauses (i) or (ii) and such failure shall continue unremedied for 30 thirty (30) days after the earlier of (1) written notice to Lessee of such failure (provided, that in the case of any such failure which cannot be cured by the payment of money and cannot with diligence be cured within thirty (30) day period, if Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof from Landlord orwith diligence, the Note Purchaser time within which such failure may be cured shall be extended for such period not to exceed ninety (90) additional days as is necessary to complete the curing thereof with diligence);
(iv) If any representation or warranty of Lessee set forth herein or in any document, notice, certificate, demand or request executed by Lessee and delivered to Lessor, or if any representation or warranty of any Guarantor set forth in a guaranty or in any document, notice, certificate, demand or request delivered to Lessor, shall prove to be incorrect in any material adverse respect as of the time when the same shall have been made in a way adverse to Lessor;
(v) If Lessee or any holder of the Notes Guarantor shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to Tenant, (2) the first date on which an officer of Tenant shall have actual knowledge that a default has occurred and is continuing under this Section 18(a)(ii); or
(iii) if Tenant or any of its subsidiaries has entered against it or on its behalf an order for relief under the Federal bankruptcy laws, or any other applicable Federal federal or state bankruptcy, insolvency or other similar law, or becomes insolvent, shall be adjudicated a bankrupt or makes become insolvent or shall make an assignment for the benefit of creditors, creditors or fails shall admit in writing its inability to generally pay its debts generally as such debts they become due, or Tenant if a petition proposing the adjudication of Lessee or any Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy law or any similar federal or state law shall be filed in any court and Lessee or such subsidiary applies for Guarantor, as applicable, shall consent to or consents to acquiesce in the appointment of filing thereof or such petition shall not be discharged or denied within ninety (90) days after the filing thereof;
(vi) If a receiver, trustee or receiver liquidator of Lessee or any Guarantor, or of all or substantially all of the assets of Lessee or any Guarantor, or of the Premises or Lessee's estate therein shall be appointed in any proceeding brought by Lessee or any Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Lessee or any Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Lessee or any Guarantor shall consent to or acquiesce in such appointment;
(vii) If the Premises shall be abondoned and Lessee fails to pay the Rent or otherwise maintain and protect the Premises required by this Lease;
(viii) If any guaranty of this lease (a "Guaranty") shall cease to be in full force and effect for any reason whatsoever other than a termination of such Guaranty as expressly provided for in such Guaranty, but otherwise including, without limitation, a final determination by a governmental body or court that the major part Guaranty is invalid, void or unenforceable or the Guarantor thereunder shall contest or deny in writing the validity or enforceability of any of its propertyobligations under its Guaranty; or
(ivix) If a custodian default occurs under any Guaranty which default continues beyond applicable grace periods, if any, for the cure of such default.
(including b) If an Event of Default shall have occurred and be continuing, Lessor shall have the right to proceed by appropriate court action or actions, either at law or in equity, to enforce performance by Lessee of the applicable covenants and terms of this Lease or to recover damages for the breach thereof or both.
(c) If an Event of Default shall have occurred and be continuing, Lessor shall have the right to give Lessee notice of Lessor's termination of the Term. Upon the giving of such notice, the Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the Term, and all rights of Lessee hereunder shall expire and terminate, but Lessee shall remain liable as hereinafter provided.
(d) If an Event of Default shall have occurred and be continuing, Lessor shall have the immediate right, whether or not the Term shall have been terminated pursuant to Subsection 7.1(c), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Lessor determines to be necessary or desirable. Lessor shall incur no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Lessor to terminate the Term unless a notice of such termination is given to Lessee pursuant to Subsection 7.1(c).
(e) At any time or from time to time after a re-entry, repossession or removal pursuant to Subsection 7.1(d), whether or not the Term shall have been terminated pursuant to Subsection 7.1(c), Lessor may relet the Premises for the account of Lessee, in the name of Lessee or Lessor or otherwise, without limitation a trustee notice to Lessee, for such term or receiverterms and on such conditions and for such uses as Lessor, in its reasonable discretion, may determine. Lessor may collect any rents payable by reason of such reletting. Lessor shall not be liable for any failure to relet the Premises or for any failure to collect any rent due upon any such reletting. Lessor shall use reasonable efforts to relet the Premises in an effort to mitigate its damages.
(f) is appointed for Tenant No expiration or any termination of the Term pursuant to Subsection 7.1(c), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Subsection 7.1(d) or otherwise, and no reletting of the Premises pursuant to Subsection 7.2(e) or otherwise, shall relieve Lessee of its subsidiaries liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or for reletting.
(g) In the major part event of any expiration or termination of the Term or re- entry or repossession of the Premises or removal of persons or property therefrom by reason of either the occurrence of an Event of Default, Lessee shall pay to Lessor all Basic Rent, additional rent and is not discharged within 90 days after other sums required under this Lease to be paid by Lessee, in each case to and including the date of such appointmentexpiration, termination, re-entry, repossession or removal; or
(v) bankruptcy or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of its subsidiaries and, if instituted against Tenant thereafter, Lessee shall, until the end of what would have been the Term in the absence of such expiration, termination, re-entry, repossession or any such subsidiary are consented to removal and whether or are not dismissed within 90 days after such institution; or
(vi) if the Premises shall have been left abandoned relet, be liable to Lessor for, and shall pay to Lessor, as liquidated and agreed current damages: (i) all Basic Rent, all additional rent and other sums which would be payable under this Lease by Lessee in the absence of any such expiration, termination, re-entry, repossession or removal, together with all expenses of Lessor in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including, without limitation, fees and expenses of appellate proceedings), employee's expenses, alteration costs and expenses of preparation for a period such reletting) less (ii) the net proceeds, if any, of 30 days; orany reletting effected for the account of Lessee pursuant to Subsection 7.1(e). Lessee shall pay such liquidated and agreed current damages on the dates on which Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Lessor shall be entitled to recover the same from Lessee on each such date.
(viih) if Tenant shall fail to observe At any time after any such expiration or perform any provision termination of the Assignment Term or re-entry or repossession of Lease dated the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Lessor shall be entitled to recover from Lessee, and Lessee shall pay to Lessor on demand, as and for liquidated and agreed final damages for Lessee's default and in lieu of _____________all liquidated and agreed current damages beyond the date of such demand (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), ______ (the "Assignment") among Landlord, Tenant and the Note Purchaser relating an amount equal to the Premises; ofexcess, if any, of (i) the aggregate of all unpaid Basic Rent, additional rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Lessee shall have satisfied in full its obligations under subsection 7.1(g) to pay liquidated and agreed current damages) for what is or would have been in the absence of such expiration or termination, the then unexpired Term, discounted at the rate of 6% per annum over (ii) the then fair rental value of the Premises for the same period, discounted at the rate of 6% per annum. Nothing in subsection 7.1(g) or this 7.1(h) shall permit Lessor to double count any unpaid rent and collect such unpaid rent under both subsection 7.1(g) and this 7.1(h). If any applicable law shall limit the amount of liquidated final damages to less than the foregoing amount, Lessor shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any The occurrence of any one or more of the following occurrences events (any such event being specified herein as a failure or acts default) shall constitute an Event of Default ("Event of Default") under this Lease:
: (i) if a failure by Tenant shall fail to pay make (regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant from complying with the provisions of this Lease): (x) any payment of Basic RentRent which continues unremedied for a period of three (3) business days after written notice (“Nonpayment Notice”) thereof given to Tenant by Landlord or Lender or Lender’s designee, additional rent or (y) any payment of Additional Rent or other sum herein required to be paid by Tenant hereunderwhich continues unremedied for a period of fifteen (15) business days after a Nonpayment Notice is given to Tenant by Landlord or Lender or Lender’s designee; or
(ii) if failure by Tenant shall fail to observe perform and observe, or perform a violation or breach of, any other provision hereof in this Lease and such failure default shall continue unremedied for 30 a period of sixty (60) business days after the earlier of (1) written notice thereof from is given by Landlord oror Lender or Lender’s designee to Tenant or if such default is of such a nature that it cannot reasonably be cured within such period of sixty (60) business days, the Note Purchaser or any holder such period shall be extended for such longer time as is reasonably necessary provided that Tenant has commenced to cure such default within said period of the Notes to Tenant, sixty (260) the first date on which an officer of Tenant shall have actual knowledge that a default has occurred business days and is continuing under this Section 18(a)(ii)actively, diligently and in good faith proceeding with continuity to remedy such default; or
(iii) if Tenant shall (A) voluntarily be adjudicated a bankrupt or insolvent, (B) or voluntarily consent to the appointment of a receiver or trustee for itself or for any of its subsidiaries has entered against it or on its behalf an order for the Leased Premises, (C) voluntarily file a petition seeking relief under the Federal bankruptcy laws, or any other applicable Federal or state bankruptcy, insolvency or other similar lawlaws of the United States, any state or any jurisdiction, or becomes insolvent, or makes an (D) voluntarily file a general assignment for the benefit of creditors; (iv) a court shall enter an order, judgment or decree appointing, with the voluntary consent of Tenant, a receiver or trustee for Tenant or for the Leased Premises or approving a petition filed against Tenant which seeks relief under the bankruptcy or other similar laws of the United States or any State, and such order, judgment or decree shall remain in force, undischarged or unstayed, 180 business days after it is entered; (v) Tenant shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; (vi) the estate or interest of Tenant in the Leased Premises shall be levied upon or attached in any proceeding and such estate or interest is about to be sold or transferred or such process shall not be vacated or discharged within 180 business days after such levy or attachment; or (vii) an Event of Default shall have occurred under any of the other Tenant Leases with Landlord during the Initial Term but excluding any Extension Term or (viii) any representation or warranty by Tenant in any lease, guaranty, estoppel or other written certificate, financial statement or agreement delivered in connection with this Lease shall have been incorrect in a material respect when made.
(b) If any Event of Default shall have occurred, Landlord shall have the right at its option, then or at any time thereafter, to do any one or more of the following without demand upon or notice to Tenant:
(i) Landlord may give Tenant notice (following the occurrence of an Event of Default) of Landlord’s intention to terminate this Lease on a date specified in such notice (which date shall be no sooner than thirty (30) days after the date of the notice). Upon the date therein specified, unless the Event of Default for which the termination is effected has been cured by Tenant, the Term and the estate hereby granted and all rights of Tenant hereunder shall expire and terminate as if such date were the date herein above fixed for the expiration of the Term, but Tenant shall remain liable for all its obligations hereunder through the date herein above fixed for the expiration of the Term, including its liability for Basic Rent and Additional Rent as hereinafter provided.
(ii) Landlord may, whether or not the Term of this Lease shall have been terminated pursuant to clause (i) above give Tenant notice (following the occurrence of an Event of Default) to surrender the Leased Premises to Landlord on a date specified in such notice (which date shall be no sooner than thirty (30) days after the date of the notice), at which time Tenant shall surrender and deliver possession of the Leased Premises to Landlord unless the Event of Default for which the termination is effected has been cured by Tenant. Upon or at any time after taking possession of the Leased Premises, Landlord may remove any persons or property therefrom. Landlord shall be under no liability for or by reason of any such entry, repossession or removal. No such entry or repossession shall be construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such intention to Tenant pursuant to clause (i) above.
(iii) After repossession of any of the Leased Premises pursuant to clause (ii) above, whether or not this Lease shall have been terminated pursuant to clause (i) above, Landlord may relet the Leased Premises or any part thereof to such tenant or tenants for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the Term) for such rent, on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its reasonable discretion, may determine; and Landlord shall collect and receive any rents payable by reason of such reletting. The rents received on such reletting shall be applied (A) first to the reasonable and actual expenses of such reletting and collection, including without limitation necessary renovation and alterations of the Leased Premises, reasonable and actual attorneys’ fees and any reasonable and actual real estate commissions paid, and (B) thereafter toward payment of all sums due or to become due Landlord hereunder. If a sufficient amount to pay such expenses and sums shall not be realized or secured, then Tenant shall pay Landlord any such deficiency monthly, and Landlord may bring an action therefor as such monthly deficiency shall arise. Landlord shall not, in any event, be required to pay Tenant any sums received by Landlord on a reletting of the Leased Premises in excess of the rent provided in this Lease, but such excess shall reduce any accrued present or future obligations of Tenant hereunder. Landlord’s re-entry and reletting of the Leased Premises without termination of this Lease shall not preclude Landlord from subsequently terminating this Lease as set forth above. Landlord may make such Alterations as Landlord in its reasonable discretion may deem advisable. Tenant agrees to pay Landlord, as Additional Rent, immediately upon demand, all reasonable expenses incurred by Landlord in obtaining possession, in performing Alterations and in reletting any of the Leased Premises, including fees and commissions of attorneys, architects, agents and brokers.
(iv) If Tenant shall fail to make payment of any installment of Basic Rent or any Additional Rent on or before the date when each such payment is due, Tenant shall pay to Landlord, a sum equal to two (2%) percent per annum above the then current Prime Rate, as hereinafter defined, of the amount unpaid, or fails the default rate specified under the Loan, whichever is greater (the “Default Rate”) computed from the date such payment of Basic Rent or Additional Rent was due to generally pay and including the date of payment. The term Prime Rate shall mean the prime rate of interest published in the Wall Street Journal or its debts successor, from time to time.
(v) Landlord may exercise any other right or remedy now or hereafter existing by law or in equity, including, without limitation, the remedies provided for in: (i) California Civil Code Section 1951.2, including, without limitation, paragraph (3) of subdivision (a) thereof which provides that Landlord shall also be entitled to recover from Tenant the worth at the time of award of the amount by which the unpaid Rent for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; and (ii) California Civil Code Section 1951.4, which provides, in effect, that a lessor may continue a lease in effect after the lessee’s breach and abandonment and may recover rent as such debts become it becomes due, if the lessee has the right to sublet or Tenant assign, subject only to reasonable limitations. Notwithstanding anything set forth herein to the contrary, Landlord shall give such notice as may be required under California Code of Civil Procedure Section 1161 or as may otherwise be required under California law prior to instituting any such subsidiary applies action to recover possession of the Leased Premises or for or consents to the appointment of a trustee receiver to take possession of the Leased Premises after the occurrence of any Event of Default or receiver or prior to instituting any action for the major part damages as a consequence of its property; orany Event of Default.
(ivc) a custodian (including without limitation a trustee In the event of any expiration or receiver) is appointed for Tenant termination of this Lease or repossession of any of its subsidiaries or for the major part Leased Premises by reason of the property occurrence of either an Event of Default, Tenant shall pay to Landlord Basic Rent, Additional Rent and is all other sums required to be paid by Tenant to and including the date of such expiration, termination or repossession and, thereafter, Tenant shall, until the end of what would have been the Term in the absence of such expiration, termination or repossession, and whether or not discharged within 90 days after such appointment; or
(v) bankruptcy or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of its subsidiaries and, if instituted against Tenant or any such subsidiary are consented to or are not dismissed within 90 days after such institution; or
(vi) if the Leased Premises shall have been left abandoned relet, be liable to Landlord for a period and shall pay to Landlord as liquidated and agreed current damages: (i) Basic Rent, Additional Rent and all other sums which would be payable under this Lease by Tenant in the absence of 30 days; orsuch expiration, termination or repossession, less (ii) the net proceeds, if any, of any reletting pursuant to paragraph 19 (b) (iii), after deducting from such proceeds all of Landlord’s reasonable expenses in connection with such reletting (including all reasonable repossession costs, brokerage commissions, legal expenses, attorneys’ fees, employees’ expenses, costs of Alteration and expenses of preparation for reletting). Tenant hereby agrees to be and remain liable for all sums aforesaid and Landlord may recover such damages from Tenant and institute and maintain successive actions or legal proceedings against Tenant for the recovery of such damages. Nothing herein contained shall be deemed to require Landlord to wait to begin such action or other legal proceedings until the date when the Term would have expired by limitation had there been no such Event of Default.
(viid) At any time after such expiration or sooner termination of this Lease pursuant to Paragraph 19 or pursuant to Law or if Landlord shall have reentered the Leased Premises, as the case may be, whether or not Landlord shall have recovered any amounts under Paragraph 19(b)(iii) or 19(c), Landlord shall be entitled to recover from Tenant and Tenant shall pay to Landlord, on demand, as and for liquidated and agreed final damages for Tenant’s default, the amount by which the Basic Rent, and all Additional Rent reserved hereunder for the unexpired portion of the Term demised herein as if the Lease had not expired or been terminated exceeds the then fair and reasonable rental value of the Leased Premises for the same period, discounted to present worth at the annual rate of seven percent (7%), minus any such monthly deficiencies previously recovered from Tenant under Paragraph 19(b)(iii) if Tenant applicable to such period.
(e) If any statute or rule of law governing a proceeding in which such liquidated final damages provided for in Paragraph 19(d) are to be proved shall fail validly limit the amount thereof to observe or perform any provision of an amount less than the Assignment of Lease dated as of _____________amount above agreed upon, ______ (the "Assignment") among Landlord, Tenant and the Note Purchaser relating Landlord shall be entitled to the Premises; ofmaximum amount allowable under such statute or rule of law.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an Event of Default ("Event of Default") under this Lease:
(i) if Tenant shall fail to pay any Basic Rent, additional rent or other sum required to be paid by Tenant hereunder; or
(ii) if Tenant shall fail to observe or perform any other provision hereof and such failure shall continue unremedied for 30 days after the earlier of (1) written notice thereof from Landlord or, the Note Purchaser or any holder of the Notes to Tenant, (2) the first date on which an officer of Tenant shall have actual knowledge that a default has occurred and is continuing under this Section 18(a)(ii15(a)(ii); or
(iii) if Tenant or any of its subsidiaries has entered against it or on its behalf an order for relief under the Federal bankruptcy laws, or any other applicable Federal or state bankruptcy, insolvency or other similar law, or becomes insolvent, or makes an assignment for the benefit of creditors, or fails to generally pay its debts as such debts become due, or Tenant or any such subsidiary applies for or consents to the appointment of a trustee or receiver or for the major part of its property; or
(iv) a custodian (including without limitation a trustee or receiver) is appointed for Tenant or any of its subsidiaries or for the major part of the property of either and is not discharged within 90 days after such appointment; or
(v) bankruptcy or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of its subsidiaries and, if instituted against Tenant or any such subsidiary are consented to or are not dismissed within 90 days after such institution; or
(vi) if the Premises shall have been left abandoned for a period of 30 days; or
(vii) if Tenant shall fail to observe or perform any provision of the Assignment of Lease dated as of _____________May 12, ______ 1994 (the "Assignment") among Landlord, Tenant and the Note Purchaser relating to the Premises; ofor
(viii) if any representation or warranty made by Tenant herein or in the Assignment or made by Tenant in any statement or certificate furnished by Tenant pursuant to the Note Agreement proves untrue in any material respect as of the date of the issuance or making thereof.
(b) This Lease and the term and estate hereby granted are subject to the limitation that whenever an Event of Default shall have happened and be continuing Landlord shall have the right at its election at any time thereafter to exercise any one or more or all, and in any order, of the remedies hereinafter set forth, it being expressly understood that no remedy herein conferred is intended to be exclusive of any other remedies but each and every remedy shall be in addition to every other remedy given herein or now or hereafter existing at law or in equity or by statute:
(i) Landlord may take all steps to protect and enforce the rights of Landlord or obligations of Tenant hereunder, whether by action, suit or proceeding at law or in equity (for the specific performance of any covenant, condition or agreement contained in this Lease, or in aid of the execution of any power herein granted or for any foreclosure, or for the enforcement of any other appropriate legal or equitable remedy) or otherwise as Landlord shall deem most advisable to protect and enforce any of its rights or the obligations of Tenant hereunder;
(ii) Landlord may terminate this Lease by giving a written termination notice to Tenant specifying a date not less than 15 days after the date of such notice on which the term of this Lease shall terminate and on such date the term of this Lease and the estate hereby granted shall expire and terminate by limitation and all rights of Tenant under this Lease shall cease on the Termination Date so specified;
(iii) Landlord, whether or not this Lease shall have been terminated pursuant to clause (ii) of this Section 15(b), shall have the right to terminate Tenant's right to possession under this Lease and to re-enter and take possession of the Premises or any part thereof by giving a written notice to Tenant to quit and surrender possession on a date not less than 15 days after the date of such notice whereupon the right of Tenant to the possession of the Premises shall cease and terminate on such date, and Landlord shall have the immediate and continuing right then and at any time and from time to time thereafter without further notice, to re-enter upon and take possession of the Premises or any part thereof with or without legal proceedings (summary or otherwise) and to remove all Persons and property therefrom as Landlord may elect to do. Should Landlord elect to re-enter as herein provided or should Landlord take possession pursuant to legal proceedings or pursuant to any notice provided for by law or upon termination of this Lease pursuant to clause (ii) of this Section 15(b) or termination of Tenant's right to possession pursuant to clause (iii) of this Section 15(b) or otherwise as permitted by law, Tenant shall peaceably quit and surrender the Premises to Landlord. In any such event, neither Tenant nor any Person claiming through or under Tenant, by virtue of any statute or of an order of any court, shall be entitled to possession or to remain in possession of the Premises, or any part thereof, but shall forthwith quit and surrender the Premises to Landlord;
(iv) In the event of any termination of this Lease pursuant to clause (ii) of this Section 15(b) or repossession pursuant to clause (iii) of this Section 15(b), Tenant will pay to Landlord Basic Rent and all additional rent and other sums required to be paid by Tenant up to the time of such termination or repossession, and from and after such termination or repossession until the end of what would have been the term of this Lease in the absence of such termination or repossession, Tenant shall be liable to Landlord for, and shall pay to Landlord the sums of money (herein called "Current Damages") which would have been payable by Tenant, as Basic Rent and all additional rent and other sums which would be payable under this Lease by Tenant in the absence of such termination or repossession, less the proceeds, if any, actually received by Landlord as a result of such repossession and subsequent reletting or other disposition of the Premises, after deducting from such proceeds, the expenses, costs and payments of every kind of Landlord which in accordance with the terms of this Lease would have been borne by Tenant and all of Landlord's expenses in connection with such realization of proceeds, including without limiting the generality of the foregoing all unpaid expenses incurred in obtaining possession, and in altering, repairing and putting the Premises in good order and condition and in reletting the Premises or any part thereof including reasonable fees of attorneys, architects, and other experts and any other reasonable and legitimate expenses. Tenant will pay such other experts and any other reasonable and legitimate expenses. Tenant will pay such Current Damages monthly on the days on which Basic Rent would have been payable under this Lease in the absence of such termination or repossession, and Landlord shall be entitled to recover the same from Tenant on each such day. Tenant hereby agrees to be and remain liable for all sums otherwise payable by Tenant under this Lease including, but not limited to, the expenses of Landlord aforesaid, as well as for any deficiency aforesaid, and Landlord shall have the right from time to time to begin and maintain successive actions or other legal proceedings against Tenant for the recovery of such deficiency or damages or for a sum equal to any installments of Basic Rent or additional rent and any other sums payable hereunder and to recover the same upon the liability of Tenant herein provided, which liability it is expressly covenanted shall survive the issuance of any action to secure possession of the Premises. Nothing herein contained shall be deemed to require Landlord to wait to begin any such action or other legal proceedings until the date when this Lease would have expired by limitation had there been no such Event of Default;
(v) At any time after any termination of this Lease pursuant to clause (ii) of this Section 15(b), or termination of possession pursuant to clause (iii) of this Section 15(b), whether or not Landlord shall have collected any Current Damages as aforesaid, Tenant will pay to Landlord, at Landlord's option and upon demand, as and for liquidated and agreed final damages (herein called "Final Damages") for Tenant's default and in lieu of all Current Damages beyond the date of such demand, an amount equal to the sum of (A) the excess, if any, of Basic Rent and the sums which would be payable under this Lease from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under clause (iv) of this Section 15(b) to pay Current Damages) for what would be the then unexpired term of this Lease in the absence of such expiration or repossession, discounted at the rate of 7.8% per annum on the basis of a 360-day year of twelve consecutive 30-day months, over the fair rental value of the Premises at the time of such termination for the balance of such term, discounted at the same rate and in the same manner as above stated, plus (B) to the extent legally enforceable and in addition to all other amounts payable by tenant pursuant to this Section 15(b), as damages suffered by the Landlord as the result of the occurrence of an Event of Default hereunder for the loss of a bargain and not as a penalty, an amount (the "Additional Final Damages") equal to the amount which the Landlord would be obligated to pay the premium, if any, specified in the Note Agreement as defined therein. Nothing herein contained shall, however, limit or prejudice the right of Landlord, in any bankruptcy, reorganization or insolvency proceedings, to prove for and obtain as liquidated damages by reason of such termination, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such damages are to be proved, whether or not such amount shall be greater than, equal to, or less than such Final Damages and/or Additional Final Damages.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an Event event of Default ("Event of Default") default under this Lease:
; (i) if Tenant shall fail failure to (1) make any Rent Payment or pay any Basic Deferred Rent, additional rent or other sum as and when required to be paid by Tenant hereunder; or
Lessee hereunder and such failure shall continue for 8 days after notice to Lessee of such failure or (ii2) if Tenant shall fail to observe or perform any other provision hereof and such failure shall continue unremedied for 30 28 days after notice to Lessee of such failure (provided, that in the earlier case of any such default which cannot be cured by the payment of money and cannot with diligence be cured within such 28-day period, if Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, the time within which such default may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence); or (1ii) if any representation or warranty of Lessee set forth in any notice, certificate, demand or request pursuant hereto shall prove to be incorrect in any material and adverse respect as of the time when the same shall have been made, and the facts shall not be conformed to such representation or warranty promptly after written notice thereof from Landlord or, to Lessee of such inaccuracy and Lessor or Master Lessor shall not be restored promptly after such notice to the Note Purchaser position it would have enjoyed had any loss or any holder detriment suffered by it as a result of the Notes to Tenant, (2) the first date on which an officer of Tenant shall have actual knowledge that a default has occurred and is continuing under this Section 18(a)(ii)such inaccuracy not occurred; or
or (iii) if Tenant Lessee shall become a debtor in a case filed under Chapter 7 of the Bankruptcy Code, or in a case filed under Chapter 11 of the Bankruptcy Code, or in a case filed under Chapter 7 of the Bankruptcy Code which is transferred to Chapter 11; or if Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any federal or state bankruptcy law or any of its subsidiaries has entered against it similar federal or on its behalf an order for relief under the Federal bankruptcy laws, or any other applicable Federal or state bankruptcy, insolvency or other similar Mate law, or becomes insolvent, shall be adjudicated a bankrupt or makes become insolvent or shall make an assignment for the benefit of creditors, creditors or fails shall admit in writing its inability to generally pay its debts generally as such debts they become due, or Tenant if a petition or answer proposing the adjudication of Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy law or any similar federal or state law shall be filed in any court and Lessee shall consent to or acquiesce in the filing thereof or such subsidiary applies for petition or consents to answer shall not be discharged or denied within 120 days after the appointment of a trustee filing thereof; or receiver or for the major part of its property; or
(iv) if a custodian (including without limitation a receiver, trustee or receiver) is appointed for Tenant liquidator of Lessee or any of its subsidiaries all or for the major part substantially all of the property assets of either Lessee or of the Premises or Lessee’s estate therein shall be appointed in any proceeding brought by Lessee, as the case may be, or if any such receiver, trustee or liquidator shall be appointed in any proceeding. brought against Lessee and is shall not be discharged within 90 120 days after such appointment, or if Lessee shall consent to or acquiesce in such appointment; or
or (v) bankruptcy or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of its subsidiaries and, if instituted against Tenant or any such subsidiary are consented to or are not dismissed within 90 days after such institution; or
(vi) if the Premises shall have been left abandoned unoccupied and unattended for a period of 30 days; oror (vi) if as a result of a default by Lessee hereunder the lessor under the Ground Lease shall have the right to terminate or to re-enter and take possession of the premises leased thereunder.
(viib) If an event of default shall have happened and be continuing, Lessor shall have the right to give Lessee notice of Lessor’s termination of the term of this Lease. Upon the giving of such notice, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if Tenant such date were the date herein fixed for the expiration of the term of this Lease, and all rights of Lessee hereunder shall expire and terminate, but Lessee shall remain liable as hereinafter provided.
(c) If an event of default shall have happened and be continuing, Lessor shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to paragraph 18(b), to re-enter and repossess the Premises by summary proceedings, ejectment, any other legal action or in any lawful manner Lessor determines to be necessary or desirable and the right to remove all persons and property therefrom. Lessor shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry or repossession of the Premises shall be construed as an election by Lessor to terminate the term of this Lease unless a notice of such termination is given to Lessee pursuant to paragraph 18(b), or unless such termination is decreed by a court or other governmental tribunal of competent jurisdiction.
(d) At any time or from time to time after the re-entry or repossession of the Premises pursuant to paragraph 18(c), whether or not the term of this Lease shall have been terminated pursuant to paragraph 18(b). Lessor may (but shall be under no obligation to) relet the Premises for the account of Lessee, in the name of Lessee or Lessor or otherwise, without notice to Lessee, for such term or terms and on such conditions and for such uses as Lessor, in its absolute discretion, may determine. Lessor may collect and receive any rents payable by reason of such reletting. Lessor shall not be liable for any failure to relet the Premises or for any failure to collect any rent due upon any such reletting.
(e) No expiration or termination of the term of this Lease pursuant to paragraph 18(b), by operation of law or otherwise, and no re-entry or repossession of the Premises pursuant to paragraph 18(c) or otherwise, and no reletting of the Premises pursuant to paragraph 18(d) or otherwise, shall relieve Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession or reletting.
(f) In the event of any expiration or termination of the term of this Lease or re-entry or repossession of the Premises by reason of the occurrence of any event of default, Lessee will pay to Lessor all Deferred Rent and all Rent Payments to and including the date of such expiration, termination, re-entry or repossession, and all additional rent and other sums required to be paid by Lessee to and including the date of such expiration, termination, re-entry or repossession; and, thereafter, Lessee shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry or repossession, and whether or not the Premises shall have been re-let, be liable to Lessor for, and shall pay to Lessor, as liquidated and agreed current damages: (i) all Rent Payments (increased by the amount of Deferred Rent allocable to each payment period through the 15th year of the Primary Term of this Lease and reduced after the 15th year of the Primary Term of this Lease by that portion of such Rent Payment which constitutes Deferred Rent actually paid pursuant to the first sentence of this paragraph 18 (f)), additional rent and other sums which would be payable under this Lease by Lessee in the absence of such expiration, termination, re-entry or repossession, less (ii) the net proceeds, if any, of any reletting effected for the account of Lessee pursuant to paragraph 18(d), after deducting from such proceeds all expenses of Lessor and Master Lessor in connection with such reletting (including, but not limited to all re-possession costs, brokerage commissions, reasonable attorneys’ fees and expenses, employees’ expenses, alteration costs and expenses of preparation for such reletting). Les-see will pay such current damages on the days on which Rent Payments would be payable under this Lease in the absence of such expiration, termination, re-entry or repossession, and Lessor shall be entitled to recover the same from Lessee on each such day.
(g) At any time after any such expiration or termination of the term of this Lease or re-entry or repossession of the Premises by reason of the occurrence of an event of default, whether or not Lessor shall have collected any current damages pursuant to paragraph 18(f), Lessor shall be entitled to recover from Lessee, and Lessee will pay to Lessor on demand, as and for liquidated and agreed final damages for Lessee’s default and in lieu of all current damages beyond the date of such demand (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Rent Payments under this Lease (less any Deferred Rent actually paid pursuant to paragraph 18(f)), plus additional rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Lessee shall have satisfied in full its obligations under paragraph 18(f) to pay current damages) for what would be the then unexpired term of this Lease in the absence of such expiration, termination, re-entry or repossession, discounted at the rate of 5% per annum over (b) the then fair rental value of the Premises, discounted at the rate of 5% per annum for the same period. If any law shall limit the amount of such liquidated final damages to less than the amount above agreed upon, Lessor shall be entitled to the maximum amount allowable under such law.
(1) In the event that Lessee shall become a debtor under Chapter 7 of the Bankruptcy Code and Lessee’s trustee or Lessee shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may be made only if the provisions of sub-paragraphs (2) (i) through (iv) and subparagraph (3) (i) of this paragraph 18(h) are satisfied as if the election to assume were made in a case filed under Chapter 11 of the Bankruptcy Code. If Lessee or Lessee’s trustee shall fail to observe elect to assume this Lease within 120 days after the filing of such petition or such additional time as provided by the court within such 120-day period, this Lease shall be deemed to have been rejected. Immediately upon such failure or upon a rejection of this Lease by Lessee or Lessee’s trustee, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee’s trustee and this Lease, upon the election of Lessor, shall terminate, but Lessor’s right to receive damages or liquidated damages pursuant to this paragraph 18 in any such proceeding shall survive.
(2) In the event that the Lessee shall become a debtor in a case filed under Chapter 11 of the Bankruptcy Code, or in a case filed under Chapter 7 of the Bankruptcy Code which is transferred to Chapter 11, Lessee’s trustee or Lessee, as debtor-in-possession, must elect to assume this Lease within 120 days from the date of filing of the petition under Chapter 11 or the transfer thereto, or Lessee’s trustee or Lessee, as debtor-in-possession, shall be deemed to have rejected this Lease. In the event that Lessee, Lessee’s trustee or Lessee, as debtor-in-possession, has failed to perform all of Lessee’s obligations under this Lease within the time periods (excluding grace periods) required for such performance, no election by Lessee’s trustee or Lessee, as debtor-in-possession, to assume this Lease, whether under Chapter 7 or Chapter 11, shall be permitted or effective unless each of the following conditions has been satisfied:
(i) Lessee’s trustee or Lessee, as debtor-in-possession, has cured all defaults, under the Lease, or has provided Lessor with Assurance (as defined below) that it will cure, all defaults susceptible of being cured by the payment of money within 10 days from the date of such assumption and that it will cure all other defaults under this Lease which are susceptible of being cured by the performance of any act promptly and with diligence and continuity after the date of such assumption.
(ii) Lessee’s trustee or Lessee, as debtor-in-possession, has compensated, or has provided Lessor with Assurance that within 10 days from the date of such assumption Lessor will be compensated for any actual pecuniary loss incurred by Lessor arising from the default of Lessee, Lessee’s trustee or Lessee, as debtor-in-possession.
(iii) Lessee’s trustee or Lessee, as debtor-in-possession, has provided Lessor with Assurance of the future performance of each of the obligations under this Lease of Lessee.
(iv) Such assumption will not breach or cause a default under any provision of the Assignment of Lease dated as of _____________any other lease, ______ (the "Assignment") among LandlordMortgage, Tenant and the Note Purchaser financing agreement or other agreement by which Lessor is bound relating to the Premises; ofPremises or any Legal Requirements.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any a. The occurrence of any one or more of the following occurrences events (any such event being specified herein as a "failure" or acts "default") shall constitute an Event of Default ("Event of Default") under this Lease:
: (i) if a failure by Tenant shall fail to pay make (regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant from complying with the provisions of this Lease): (x) any payment of Basic RentRent which continues unremedied for a period of five (5) business days after written notice in accordance with Paragraph 21 below ("NONPAYMENT NOTICE") thereof given to Tenant by Landlord or Lender or Lender's designee, additional rent or (y) any payment of Additional Rent or other sum herein required to be paid by Tenant hereunderwhich continues unremedied for a period of ten (10) business days after a Nonpayment Notice is given to Tenant by Landlord or Lender or Lender's designee; or
(ii) if failure by Tenant shall fail to observe perform and observe, or a violation or breach of, the provisions of Section 14 a. or Section 14 b, c, d, or e; (iii) failure by Tenant to perform and observe, or a violation or breach of, any other provision hereof in this Lease and such failure default shall continue unremedied for 30 a period of thirty (30) business days after the earlier of (1) written notice thereof from is given by Landlord oror Lender or Lender's designee to Tenant or if such default is of such a nature that it cannot reasonably be cured within such period of thirty (30) business days, the Note Purchaser or any holder such period shall be extended for such longer time as is reasonably necessary provided that Tenant has commenced to cure such default within said period of the Notes to Tenant, thirty (230) the first date on which an officer of Tenant shall have actual knowledge that a default has occurred business days and is continuing under this Section 18(a)(ii)actively, diligently and in good faith proceeding with continuity to remedy such default; or
(iii) if Tenant or any guarantor of its subsidiaries has entered against it Tenant's obligations hereunder shall (A) voluntarily be adjudicated a bankrupt or on its behalf an order insolvent, (B) or voluntarily consent to the appointment of a receiver or trustee for itself or for any of the Leased Premises, (C) voluntarily file a petition seeking relief under the Federal bankruptcy laws, or any other applicable Federal or state bankruptcy, insolvency or other similar lawlaws of the United States, any state or any jurisdiction, or becomes insolvent, or makes an (D) voluntarily file a general assignment for the benefit of creditors, or fails to generally pay its debts as such debts become due, or Tenant or any such subsidiary applies for or consents to the appointment of a trustee or receiver or for the major part of its property; or
(iv) a custodian (including without limitation court shall enter an order, judgment or decree appointing, with the voluntary consent of Tenant or any guarantor of Tenant's obligations hereunder, a receiver or trustee or receiver) is appointed for Tenant or any guarantor of its subsidiaries Tenant's obligations hereunder or for the major part of the property of either and is not discharged within 90 days after such appointment; or
(v) bankruptcy Leased Premises or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or approving a petition filed against Tenant or any guarantor of its subsidiaries andTenant's obligations hereunder which seeks relief under the bankruptcy or other similar laws of the United States or any State, if instituted against and such order, judgment or decree shall remain in force, undischarged or unstayed, ninety (90) business days after it is entered; (v) Tenant or any guarantor of Tenant's obligations hereunder shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; or (vi) the estate or interest of Tenant in the Leased Premises shall be levied upon or attached in any proceeding and such subsidiary are consented estate or interest is about to be sold or are transferred or such process shall not dismissed be vacated or discharged within 90 ninety (90) business days after such institution; orlevy or attachment.
b. If any Event of Default shall have occurred, Landlord shall have the right at its option, then or at any time thereafter, to do any one or more of the following without demand upon or notice to Tenant:
i) Landlord may give Tenant notice (vifollowing the occurrence of an Event of Default) of Landlord's intention to terminate this Lease on a date specified in such notice (which date shall be no sooner than thirty (30) days after the date of the notice). Upon the date therein specified, unless the Event of Default for which the termination is effected has been cured by Tenant, the Term or any Renewal Term and the estate hereby granted and all rights of Tenant hereunder shall expire and terminate as if such date were the Premises date hereinabove fixed for the expiration of the Term or any Renewal Term, but Tenant shall remain liable for all its obligations hereunder through the date hereinabove fixed for the expiration of the Term or any Renewal Term, including its liability for Basic Rent and Additional Rent as hereinafter provided.
ii) Landlord may, whether or not the Term or any Renewal Term of this Lease shall have been left abandoned terminated pursuant to clause (i) above give Tenant notice (following the occurrence of an Event of Default) to surrender the Leased Premises to Landlord on a date specified in such notice (which date shall be no sooner than thirty (30) days after the date of the notice), at which time Tenant shall surrender and deliver possession of the Leased Premises to Landlord unless the Event of Default for which the termination is effected has been cured by Tenant. Upon or at any time after taking possession of the Leased Premises, Landlord may remove any persons or property therefrom. Landlord shall be under no liability for or by reason of any such entry, repossession or removal. No such entry or repossession shall be construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such intention to Tenant pursuant to clause (i) above.
iii) After repossession of any of the Leased Premises pursuant to clause (ii) above, whether or not this Lease shall have been terminated pursuant to clause (i) above, Landlord may relet the Leased Premises or any part thereof to such tenant or tenants for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of 30 daysthe Term or any Renewal Term) for such rent, on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its reasonable discretion, may determine; orand Landlord shall collect and receive any rents payable by reason of such reletting. The rents received on such reletting shall be applied (A) first to the reasonable and actual expenses of such reletting and collection, including without limitation necessary renovation and alterations of the Leased Premises (but not including tenant improvement or construction allowances), reasonable and actual attorneys' fees and any reasonable and actual real estate commissions paid, and (B) thereafter toward payment of all sums due or to become due Landlord hereunder. If a sufficient amount to pay such expenses and sums shall not be realized or secured, then Tenant shall pay Landlord any such deficiency monthly, and Landlord may bring an action therefor as such monthly deficiency shall arise. Landlord shall not, in any event, be required to pay Tenant any sums received by Landlord on a reletting of the Leased Premises in excess of the rent provided in this Lease, but such excess shall reduce any accrued present or future obligations of Tenant hereunder. Landlord's re-entry and reletting of the Leased Premises without termination of this Lease shall not preclude Landlord from subsequently terminating this Lease as set forth above. Tenant agrees to pay Landlord, as Additional Rent, immediately upon demand, all reasonable expenses incurred by Landlord in obtaining possession, in performing repairs or maintenance in preparation for reletting any of the Leased Premises, including fees and commissions of attorneys, architects, agents and brokers.
(viiiv) if If Tenant shall fail to observe make payment of any installment of Basic Rent or perform any provision Additional Rent after the date when each such payment is due (after expiration of any applicable notice and cure periods), Tenant shall pay to Landlord, subject to the provisions of Section 28, a sum equal to two times the then current Prime Rate, as hereinafter defined, of the Assignment of Lease dated as of _____________, ______ amount unpaid (the "AssignmentDEFAULT RATE") among Landlordcomputed from the date such payment of Basic Rent or Additional Rent was due to and including the date of payment. The term "PRIME RATE" shall mean the prime rate of interest published in the Wall Street Journal or its successor, Tenant and the Note Purchaser relating from time to the Premises; oftime.
Appears in 1 contract
Sources: Lease Agreement (Dave & Busters Inc)
Conditional Limitations; Default Provisions. (a) Any of the ------------------------------------------- following occurrences or acts shall constitute an Event event of Default ("Event of Default") default under this Lease:
; (i) if Tenant Lessee shall (l) fail to pay any Basic Rent, additional rent or other sum required to be paid by Tenant hereunder; or
Lessee hereunder and such failure shall continue for 10 days after notice to Lessee of such failure or (ii2) if Tenant shall fail to observe or perform any other provision hereof and such failure shall continue unremedied for 30 days after notice to Lessee of such failure (provided, that in the earlier case of (1) written notice any such default which cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof from Landlord orwith diligence, the Note Purchaser time within which such default may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence); or (ii) if Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any federal or state bankruptcy law or any holder of the Notes to Tenant, (2) the first date on which an officer of Tenant shall have actual knowledge that a default has occurred and is continuing under this Section 18(a)(ii); or
(iii) if Tenant or any of its subsidiaries has entered against it or on its behalf an order for relief under the Federal bankruptcy laws, or any other applicable Federal similar federal or state bankruptcy, insolvency or other similar law, or becomes insolvent, shall be adjudicated a bankrupt or makes become insolvent or shall make an assignment for the benefit of creditors, creditors or fails shall admit in writing its inability to generally pay its debts generally as such debts they become due, or Tenant if a petition or answer proposing the adjudication of Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy law or any similar federal or state law shall be filed in any court and Lessee shall consent to or acquiesce in the filing thereof or such subsidiary applies for petition or consents to answer shall not be discharged or denied within 90 days after the appointment of filing thereof; or (iii) if a receiver, trustee or receiver liquidator of Lessee or for of all or substantially all of the major part assets of its property; or
(iv) a custodian (including without limitation a Lessee or of the Premises or Lessee's estate therein shall be appointed in any proceeding brought by Lessee, or if any such receiver, trustee or receiver) is liquidator shall be appointed for Tenant or in any of its subsidiaries or for the major part of the property of either proceeding brought against Lessee and is shall not be discharged within 90 days after such appointment; or
(v) bankruptcy or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of its subsidiaries and, if instituted against Tenant or any such subsidiary are consented Lessee shall consent to or are not dismissed within 90 days after acquiesce in such institutionappointment; or
or (viiv) if the Premises shall have been left abandoned unoccupied and unattended for a period of 30 days; or.
(viib) If an event of default shall have happened and be continuing, Lessor shall have the right to give Lessee notice of Lessor's intention to terminate the term of this Lease on a date not less than 5 days after the date of such notice. Upon the giving of such notice, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if Tenant shall fail to observe or perform any provision such date were the date herein fixed for the expiration of the Assignment term of this Lease, and all rights of Lessee hereunder shall expire and terminate, but Lessee shall remain liable as hereinafter provided.
(c) If an event of default shall have happened and be continuing, Lessor shall have the immediate right, whether or not the term of this Lease dated as of _____________shall have been terminated pursuant to paragraph 17(b), ______ (to re-enter and repossess the "Assignment") among LandlordPremises by summary proceedings, Tenant ejectment or in any manner Lessor determines to be necessary or desirable and the Note Purchaser relating right to remove all persons and property therefrom. Lessor shall be under no liability by reason of any such re- entry, repossession or removal. No such re-entry or repossession of the Premises shall be construed as an election by Lessor to terminate the term of this Lease unless a notice of such intention is given to Lessee pursuant to paragraph 17(b), or unless such termination is decreed by a court of competent jurisdiction.
(d) At any time or from time to time after the re-entry or repossession of the Premises pursuant to paragraph 17(c), whether or not the term of this Lease shall have been terminated pursuant to paragraph 17(b), Lessor may (but shall be under no obligation to) relet the Premises for the account of Lessee, in the name of Lessee or Lessor or otherwise, without notice to Lessee, for such term or terms and on such conditions and for such uses as Lessor, in its absolute discretion, may determine, subject to the Premisesprovisions of the Ground Lease. Lessor may collect and receive any rents payable by reason of such reletting. Lessor shall not be liable for any failure to relet the Premises or for any failure to collect any rent due upon any such reletting.
(e) No expiration or termination of the term of this Lease pursuant to paragraph 17(b), by operation of law or otherwise, and no re-entry or repossession of the Premises pursuant to paragraph 17(c) or otherwise, and no reletting of the Premises pursuant to paragraph 17(d) or otherwise, shall relieve Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession or reletting.
(f) In the event of any expiration or termination of the term of this Lease or re-entry or repossession of the Premises by reason of the occurrence of an event of default, Lessee will pay to Lessor all Basic Rent, additional rent and other sums required to be paid by Lessee to and including the date of such expiration, termination, re-entry or repossession; ofand, thereafter, Lessee shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry or repossession, and whether or not the Premises shall have been relet, be liable to Lessor for, and shall pay to Lessor, as liquidated and agreed current damages: (i) all Basic Rent, additional rent and other sums which would be payable under this Lease by Lessee in the absence of such expiration, termination, re-entry or repossession, less (ii) the net proceeds, if any, of any reletting effected for the account of Lessee pursuant to paragraph 17(d), after deducting from such proceeds all Lessor's expenses in connection with such reletting (including all repossession costs, brokerage commissions, property management fees, reasonable attorneys' fees and expenses, employees' expenses, alteration costs and expenses of preparation for such reletting). Lessee will pay such current damages on the days on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry or repossession, and Lessor shall be entitled to recover the same from Lessee on each such day.
(g) The words "re-enter" or "re-entry" as used in this paragraph 17 are not restricted to their technical meaning.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any a. The occurrence of any one or more of the following occurrences events (any such event being specified herein as a "failure" or acts "default") shall constitute an Event of Default ("Event of Default") under this Lease:
: (i) if a failure by Tenant shall fail to pay make (regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant from complying with the provisions of this Lease): (x) any payment of Basic RentRent which continues unremedied for a period of five (5) business days after written notice in accordance with Paragraph 21 below ("NONPAYMENT NOTICE") thereof given to Tenant by Landlord or Lender or Lender's designee, additional rent or (y) any payment of Additional Rent or other sum herein required to be paid by Tenant hereunderwhich continues unremedied for a period of ten (10) business days after a Nonpayment Notice is given to Tenant by Landlord or Lender or Lender's designee; or
(ii) if failure by Tenant shall fail to observe perform and observe, or perform a violation or breach of, any other provision hereof in this Lease and such failure default shall continue unremedied for 30 a period of thirty (30) business days after the earlier of (1) written notice thereof from is given by Landlord oror Lender or Lender's designee to Tenant or if such default is of such a nature that it cannot reasonably be cured within such period of thirty (30) business days, the Note Purchaser or any holder such period shall be extended for such longer time as is reasonably necessary provided that Tenant has commenced to cure such default within said period of the Notes to Tenant, thirty (230) the first date on which an officer of Tenant shall have actual knowledge that a default has occurred business days and is continuing under this Section 18(a)(ii)actively, diligently and in good faith proceeding with continuity to remedy such default; or
(iii) if Tenant or any guarantor of its subsidiaries has entered against it Tenant's obligations hereunder shall (A) voluntarily be adjudicated a bankrupt or on its behalf an order insolvent, (B) or voluntarily consent to the appointment of a receiver or trustee for itself or for any of the Leased Premises, (C) voluntarily file a petition seeking relief under the Federal bankruptcy laws, or any other applicable Federal or state bankruptcy, insolvency or other similar lawlaws of the United States, any state or any jurisdiction, or becomes insolvent, or makes an (D) voluntarily file a general assignment for the benefit of creditors, or fails to generally pay its debts as such debts become due, or Tenant or any such subsidiary applies for or consents to the appointment of a trustee or receiver or for the major part of its property; or
(iv) a custodian (including without limitation court shall enter an order, judgment or decree appointing, with the voluntary consent of Tenant or any guarantor of Tenant's obligations hereunder, a receiver or trustee or receiver) is appointed for Tenant or any guarantor of its subsidiaries Tenant's obligations hereunder or for the major part of the property of either and is not discharged within 90 days after such appointment; or
(v) bankruptcy Leased Premises or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or approving a petition filed against Tenant or any guarantor of its subsidiaries andTenant's obligations hereunder which seeks relief under the bankruptcy or other similar laws of the United States or any State, if instituted against and such order, judgment or decree shall remain in force, undischarged or unstayed, ninety (90) business days after it is entered; (v) Tenant or any guarantor of Tenant's obligations hereunder shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; or (vi) the estate or interest of Tenant in the Leased Premises shall be levied upon or attached in any proceeding and such subsidiary are consented estate or interest is about to be sold or are transferred or such process shall not dismissed be vacated or discharged within 90 ninety (90) business days after such institution; orlevy or attachment. Notwithstanding anything to the contrary contained in this Section 19(a), it shall be an immediate Event of Default without demand, notice, or opportunity to cure, if Tenant fails to maintain any of the Insurance required by Section 14 of this Lease.
b. If any Event of Default shall have occurred, Landlord shall have the right at its option, then or at any time thereafter, to do any one or more of the following without demand upon or notice to Tenant:
i) Landlord may give Tenant notice (vifollowing the occurrence of an Event of Default) of Landlord's intention to terminate this Lease on a date specified in such notice (which date shall be no sooner than thirty (30) days after the date of the notice). Upon the date therein specified, unless the Event of Default for which the termination is effected has been cured by Tenant, the Term and the estate hereby granted and all rights of Tenant hereunder shall expire and terminate as if such date were the Premises date hereinabove fixed for the expiration of the Term, but Tenant shall remain liable for all its obligations hereunder through the date hereinabove fixed for the expiration of the Term, including its liability for Basic Rent and Additional Rent as hereinafter provided.
ii) Landlord may, whether or not the Term of this Lease shall have been left abandoned terminated pursuant to clause (i) above give Tenant notice (following the occurrence of an Event of Default) to surrender the Leased Premises to Landlord on a date specified in such notice (which date shall be no sooner than thirty (30) days after the date of the notice), at which time Tenant shall surrender and deliver possession of the Leased Premises to Landlord unless the Event of Default for which the termination is effected has been cured by Tenant. Upon or at any time after taking possession of the Leased Premises, Landlord may remove any persons or property therefrom. Landlord shall be under no liability for or by reason of any such entry, repossession or removal. No such entry or repossession shall be construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such intention to Tenant pursuant to clause (i) above.
iii) After repossession of any of the Leased Premises pursuant to clause (ii) above, whether or not this Lease shall have been terminated pursuant to clause (i) above, Landlord may relet the Leased Premises or any part thereof to such tenant or tenants for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of 30 daysthe Term) for such rent, on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its reasonable discretion, may determine; orand Landlord shall collect and receive any rents payable by reason of such reletting. The rents received on such reletting shall be applied (A) first to the reasonable and actual expenses of such reletting and collection, including without limitation necessary renovation and alterations of the Leased Premises (but not including tenant improvement or construction allowances), reasonable and actual attorneys' fees and any reasonable and actual real estate commissions paid, and (B) thereafter toward payment of all sums due or to become due Landlord hereunder. If a sufficient amount to pay such expenses and sums shall not be realized or secured, then Tenant shall pay Landlord any such deficiency monthly, and Landlord may bring an action therefor as such monthly deficiency shall arise. Landlord shall not, in any event, be required to pay Tenant any sums received by Landlord on a reletting of the Leased Premises in excess of the rent provided in this Lease, but such excess shall reduce any accrued present or future obligations of Tenant hereunder. Landlord's re-entry and reletting of the Leased Premises without termination of this Lease shall not preclude Landlord from subsequently terminating this Lease as set forth above. Tenant agrees to pay Landlord, as Additional Rent, immediately upon demand, all reasonable expenses incurred by Landlord in obtaining possession, in performing repairs or maintenance in preparation for reletting any of the Leased Premises, including fees and commissions of attorneys, architects, agents and brokers.
(viiiv) if If Tenant shall fail to observe make payment of any installment of Basic Rent or perform any provision Additional Rent after the date when each such payment is due (after expiration of any applicable notice and cure periods), Tenant shall pay to Landlord, a sum equal to two (2%) percent per annum above the then current Prime Rate, as hereinafter defined, of the Assignment of Lease dated as of _____________, ______ amount unpaid (the "AssignmentDEFAULT RATE") among Landlordcomputed from the date such payment of Basic Rent or Additional Rent was due to and including the date of payment. The term "PRIME RATE" shall mean the prime rate of interest published in the Wall Street Journal or its successor, Tenant and the Note Purchaser relating from time to the Premises; oftime.
Appears in 1 contract
Sources: Lease Agreement (Dave & Busters Inc)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an Event of Default ("Event of Default") under this Lease:
(i) if Tenant If Lessee shall (1) fail to pay any Basic Rent, additional rent or other sum as and when required to be paid by Tenant hereunder; or
Lessee hereunder or (ii2) if Tenant shall fail to observe or perform any other provision hereof and such nonmonetary failure shall continue unremedied for 30 days after the earlier of (1) written notice to Lessee of such failure (provided that, in the case of any such failure which cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof from Landlord orwith diligence, the Note Purchaser time within which such failure may be cured shall be extended for such period not to exceed 180 days as is necessary to complete the curing thereof with diligence);
(ii) If any representation or warranty of Lessee set forth in any holder certificate provided by Lessee pursuant to this Lease, shall prove to be incorrect in any material adverse respect as of the Notes to Tenant, (2) time when the first date on which an officer of Tenant same shall have actual knowledge that been made in a default has occurred way adverse to Lessor and is continuing under this Section 18(a)(ii); orLessor shall suffer a loss or detriment as a result thereof, including, without limitation, the taking of any action (including, without limitation, the demise of the Premises to Lessee herein) in reliance upon such representation or warranty and, in each case, the facts shall not be conformed to the representation and warranty as soon as practicable in the circumstances (but in no event to exceed 30 days) after written notice to Lessee from Lessor of such inaccuracy and Lessor restored to the position it would have enjoyed had such representation or warranty been accurate at the time it was made;
(iii) if Tenant If Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any of its subsidiaries has entered against it or on its behalf an order for relief under the Federal bankruptcy laws, or any other applicable Federal federal or state bankruptcy, insolvency law or other similar law, shall be adjudicated a bankrupt or becomes insolvent, become insolvent or makes shall make an assignment for the benefit of creditors, or fails if a petition proposing the adjudication of Lessee as a bankrupt or its reorganization pursuant to generally pay its debts as such debts become due, any federal or Tenant state bankruptcy law or any similar federal or state law shall be filed in any court and Lessee shall consent to or acquiesce in the filing thereof or such subsidiary applies for petition shall not be discharged or consents to denied within 90 days after the appointment of a trustee or receiver or for the major part of its property; orfiling thereof;
(iv) If a custodian (including without limitation a receiver, trustee or receiver) is appointed for Tenant conservator of Lessee, or any of its subsidiaries all or for the major part substantially all of the property assets of either Lessee, or of the Premises or Lessee's estate therein shall be appointed in any proceeding brought by Lessee, or if any such receiver, trustee or conservator shall be appointed in any proceeding brought against Lessee and is shall not be discharged within 90 days after such appointment; or, or if Lessee shall consent to or acquiesce in such appointment;
(v) bankruptcy or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of its subsidiaries and, if instituted against Tenant or any such subsidiary are consented to or are not dismissed within 90 days after such institution; or
(vi) if If the Premises shall have been left abandoned and not maintained or secured in the manner required hereunder for a period of 30 days; orconsecutive days after written notice of such from Lessor to Lessee.
(viib) if Tenant If an Event of Default shall fail have happened and be continuing, Lessor shall have the right to observe or perform any provision give Lessee notice of Lessor's termination of the Assignment Lease Term. Upon the giving of such notice, the Lease dated as of _____________, ______ (the "Assignment") among Landlord, Tenant Term and the Note Purchaser relating estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the Lease Term, and all rights of Lessee hereunder shall expire and terminate, but Lessee shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Lessor shall have the immediate right, whether or not the Lease Term shall have been terminated pursuant to subsection 7.01(b), to reenter and repossess the Premises and the right to remove all persons and property (subject to Section 3.02) therefrom by summary proceedings, ejectment or any other legal action or in any lawful manner Lessor determines to be necessary or desirable. Lessor shall be under no liability by reason of any such reentry, repossession or removal. No such reentry, repossession or removal shall be construed as an election by Lessor to terminate the Lease Term unless a notice of such termination is given to Lessee pursuant to subsection 7.01(b) or unless such termination is decreed by a court.
(d) At any time or from time to time after a reentry, repossession or removal pursuant to subsection 7.01(c), whether or not the Lease Term shall have been terminated pursuant to subsection 7.01(b) Lessor may (but shall be under no obligation to), relet the Premises for the account of Lessee, in the name of Lessee or Lessor or otherwise, without notice to Lessee, for such term or terms and on such conditions and for such uses as Lessor, in its absolute discretion, may determine. Lessor may collect any rents payable by reason of such reletting. Lessor shall not be liable for any failure to relet the Premises or for any failure to collect any rent due upon any such reletting.
(e) No expiration or termination of the Lease Term pursuant to subsection 7.01(b), by operation of law or otherwise, and no reentry, repossession or removal pursuant to subsection 7.01(c) or otherwise, and no reletting of the Premises pursuant to subsection 7.01(d) or otherwise, shall relieve Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, reentry, repossession, removal or reletting.
(f) In the event of any expiration or termination of the Lease Term or reentry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Lessee shall pay to Lessor all Basic Rent, additional rent and other sums required to be paid by Lessee, in each case to and including the date of such expiration, termination, reentry, repossession or removal, and, thereafter, Lessee shall, until the end of what would have been the Lease Term in the absence of such expiration, termination, reentry, repossession or removal and whether or not the Premises shall have been relet, be liable to Lessor for, and shall pay to Lessor, as liquidated and agreed current damages: (i) all Basic Rent, all additional rent and other sums which would be payable under this Lease by Lessee in the absence of any such expiration, termination, reentry, repossession or removal, together with all expenses of Lessor in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including, without limitation, fees and expenses of appellate proceedings), employee's expenses, alteration costs and expenses of necessary preparation for such reletting), less (ii) the net proceeds, if any, of any reletting effected for the account of Lessee pursuant to subsection 7.01(d). Lessee shall pay such liquidated and agreed current damages on the dates on which rent would be payable under this Lease in the absence of such expiration, termination, reentry, repossession or removal, and Lessor shall be entitled to recover the same from Lessee on each such date.
(g) At any time after any such expiration or termination of the Lease Term or reentry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, whether or not Lessor shall have collected any liquidated and agreed current damages pursuant to subsection 7.01(f), Lessor shall be entitled to recover from Lessee, and Lessee shall pay to Lessor on demand, as and for liquidated and agreed final damages for Lessee's default and in lieu of all liquidated and agreed current damages beyond the date of such demand (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, additional rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, to date to which Lessee shall have satisfied in full its obligations under subsection 7.01(f) to pay liquidated and agreed current damages) for what would be the then unexpired Lease Term in the absence of such expiration, termination, reentry, repossession or removal, discounted at the rate of 6% per annum, over (b) the then fair rental value of the Premises; of, discounted at the rate of 6% per annum for the same period. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Lessor shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Sources: Lease Agreement (Point 360)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an Event of Default ("Event of Default") under this Lease:
(i) if Tenant If Lessee shall (1) fail to pay any Basic Rent, additional rent or other sum as and when required to be paid by Tenant hereunder; or
Lessee hereunder and such failure continues for a period of 5 days after written notice from Lessor to Lessee specifying such failure to pay (iiprovided, however, no such notice shall be required more than once in any 12 month period) if Tenant shall or (2) fail to observe or perform any other provision hereof and such nonmonetary failure shall continue unremedied for 30 days after the earlier of (1) written notice to Lessee of such failure (provided that, in the case of any such failure which cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof from Landlord orwith diligence, the Note Purchaser time within which such failure may be cured shall be extended for such period not to exceed 180 days as is necessary to complete the curing thereof with diligence);
(ii) If any representation or warranty of Lessee set forth in any holder certificate provided by Lessee pursuant to this Lease, shall prove to be incorrect in any material adverse respect as of the Notes to Tenant, (2) time when the first date on which an officer of Tenant same shall have actual knowledge that been made in a default has occurred way adverse to Lessor and is continuing under this Section 18(a)(ii); orLessor shall suffer a loss or detriment as a result thereof, including, without limitation, the taking of any action (including, without limitation, the demise of the Premises to Lessee herein) in reliance upon such representation or warranty and, in each case, the facts shall not be conformed to the representation and warranty as soon as practicable in the circumstances (but in no event to exceed 30 days) after written notice to Lessee from Lessor of such inaccuracy and Lessor restored to the position it would have enjoyed had such representation or warranty been accurate at the time it was made;
(iii) if Tenant If Lessee (as defined herein) shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any of its subsidiaries has entered against it or on its behalf an order for relief under the Federal bankruptcy laws, or any other applicable Federal federal or state bankruptcy, insolvency law or other similar law, shall be adjudicated a bankrupt or becomes insolvent, become insolvent or makes shall make an assignment for the benefit of creditors, or fails if a petition proposing the adjudication of Lessee as a bankrupt or its reorganization pursuant to generally pay its debts as such debts become due, any federal or Tenant state bankruptcy law or any similar federal or state law shall be filed in any court and Lessee shall consent to or acquiesce in the filing thereof or such subsidiary applies for petition shall not be discharged or consents to denied within 90 days after the appointment of a trustee or receiver or for the major part of its property; orfiling thereof;
(iv) If a custodian (including without limitation a receiver, trustee or receiver) is appointed for Tenant conservator of Lessee, or any of its subsidiaries all or for the major part substantially all of the property assets of either Lessee, or of the Premises or Lessee's or estate therein shall be appointed in any proceeding brought by Lessee, or if any such receiver, trustee or conservator shall be appointed in any proceeding brought against Lessee and is shall not be discharged within 90 days after such appointment; or, or if Lessee shall consent to or acquiesce in such appointment;
(v) bankruptcy or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of its subsidiaries and, if instituted against Tenant or any such subsidiary are consented to or are not dismissed within 90 days after such institution; or
(vi) if If the Premises shall have been left abandoned and not maintained or secured in the manner required hereunder for a period of 30 days; or60 consecutive days after written notice of such from Lessor to Lessee.
(viib) if Tenant If an Event of Default shall fail have happened and be continuing, Lessor shall have the right to observe or perform any provision give Lessee notice of Lessor's termination of the Assignment Lease Term. Upon the giving of such notice, the Lease dated as of _____________, ______ (the "Assignment") among Landlord, Tenant Term and the Note Purchaser relating estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the Lease Term, and all rights of Lessee hereunder shall expire and terminate, but Lessee shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Lessor shall have the immediate right, whether or not the Lease Term shall have been terminated pursuant to Subsection 7.01(b), to reenter and repossess the Premises and the right to remove all persons and property (subject to Section 3.02) therefrom by summary proceedings, ejectment or any other legal action or in any lawful manner Lessor determines to be necessary or desirable. Lessor shall be under no liability by reason of any such reentry, repossession or removal. No such reentry, repossession or removal shall be construed as an election by Lessor to terminate the Lease Term unless a notice of such termination is given to Lessee pursuant to Subsection 7.01(b) or unless such termination is decreed by a court.
(d) At any time or from time to time after a reentry, repossession or removal pursuant to Subsection 7.01(c), whether or not the Lease Term shall have been terminated pursuant to Subsection 7.01(b), Lessor may (but shall be under no obligation to) relet the Premises for the account of Lessee, in the name of Lessee or Lessor or otherwise, without notice to Lessee, for such term or terms and on such conditions and for such uses as Lessor, in its absolute discretion, may determine. Lessor may collect any rents payable by reason of such reletting. Lessor shall not be liable for any failure to relet the Premises or for any failure to collect any rent due upon any such reletting.
(e) No expiration or termination of the Lease Term pursuant to Subsection 7.01(b), by operation of law or otherwise, and no reentry, repossession or removal pursuant to Subsection 7.01(c) or otherwise, and no reletting of the Premises pursuant to Subsection 7.01(d) or otherwise, shall relieve Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, reentry, repossession, removal or reletting.
(f) In the event of any expiration or termination of the Lease Term or reentry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Lessee shall pay to Lessor all Basic Rent, additional rent and other sums required to be paid by Lessee, in each case to and including the date of such expiration, termination, reentry, repossession or removal, and, thereafter, Lessee shall, until the end of what would have been the Lease Term in the absence of such expiration, termination, reentry, repossession or removal and whether or not the Premises shall have been relet, be liable to Lessor for, and shall pay to Lessor, as liquidated and agreed current damages: (i) all Basic Rent, all additional rent and other sums which would be payable under this Lease by Lessee in the absence of any such expiration, termination, reentry, repossession or removal, together with all expenses of Lessor in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including, without limitation, fees and expenses of appellate proceedings), employee's expenses, alteration costs and expenses of necessary preparation for such reletting), less (ii) the net proceeds, if any, of any reletting effected for the account of Lessee pursuant to Subsection 7.01(d). Lessee shall pay such liquidated and agreed current damages on the dates on which rent would be payable under this Lease in the absence of such expiration, termination, reentry, repossession or removal, and Lessor shall be entitled to recover the same from Lessee on each such date.
(g) At any time after any such expiration or termination of the Lease Term or reentry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, whether or not Lessor shall have collected any liquidated and agreed current damages pursuant to Subsection 7.01(f), Lessor shall be entitled to recover from Lessee, and Lessee shall pay to Lessor on demand, as and for liquidated and agreed final damages for Lessee's default and in lieu of all liquidated and agreed current damages beyond the date of such demand (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, additional rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, to date to which Lessee shall have satisfied in full its obligations under Subsection 7.01(f) to pay liquidated and agreed current damages) for what would be the then unexpired Lease Term in the absence of such expiration, termination, reentry, repossession or removal, discounted at the rate of 5% per annum, over (b) the then fair rental value of the Premises; of, discounted at the rate of 5% per annum for the same period. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Lessor shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Sources: Lease Agreement (Ceres Group Inc)
Conditional Limitations; Default Provisions. (a) Any The occurrence of any one or more of the following occurrences events (any such event being specified herein as a "failure" or acts "default") shall constitute an Event of Default ("Event of Default") under this Lease:
: (i) if a failure by Tenant shall fail to pay make (regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant from complying with the provisions of this Lease): (x) any payment of Basic RentRent which continues unremedied for a period of three (3) days after written notice ("Nonpayment Notice") thereof given to Tenant by Landlord or Lender or Lender's designee, additional rent or (y) any payment of Additional Rent or other sum herein required to be paid by Tenant hereunderwhich continues unremedied for a period of fifteen (15) days after a Nonpayment Notice is given to Tenant by Landlord or Lender or Lender's designee; or
(ii) if failure by Tenant shall fail to observe perform and observe, or perform a violation or breach of, any other provision hereof in this Lease and such failure default shall continue unremedied for 30 a period of sixty (60) days after the earlier of (1) written notice thereof from is given by Landlord oror Lender or Lender's designee to Tenant or if such default is of such a nature that it cannot reasonably be cured within such period of sixty (60) days, the Note Purchaser or any holder such period shall be extended for such longer time as is reasonably necessary provided that Tenant has commenced to cure such default within said period of the Notes to Tenant, sixty (260) the first date on which an officer of Tenant shall have actual knowledge that a default has occurred days and is continuing actively, diligently and in good faith proceeding with continuity to remedy such default, provided, however, that in no event shall Tenant be permitted a cure period greater than ten (10) days less than the period allowed to Landlord to cure an equivalent default under this Section 18(a)(ii)the Loan Documents; or
(iii) if Tenant or any guarantor of its subsidiaries has entered against it Tenant's obligations hereunder shall (A) voluntarily be adjudicated a bankrupt or on its behalf an order insolvent, (B) or voluntarily consent to the appointment of a receiver or trustee for itself or for any of the Properties, (C) voluntarily file a petition seeking relief under the Federal bankruptcy laws, or any other applicable Federal or state bankruptcy, insolvency or other similar lawlaws of the United States, any state or any jurisdiction, or becomes insolvent, or makes an (D) voluntarily file a general assignment for the benefit of creditors; (iv) a court shall enter an order, judgment or fails to generally pay its debts as such debts become duedecree appointing, or with the voluntary consent of Tenant or any such subsidiary applies guarantor of Tenant's obligations hereunder, a receiver or trustee for Tenant or consents to the appointment any guarantor of a trustee or receiver Tenant's obligations hereunder or for the major Properties or approving a petition filed against Tenant or any guarantor of Tenant's obligations hereunder which seeks relief under the bankruptcy or other similar laws of the United States or any State, and such order, judgment or decree shall remain in force, undischarged or unstayed, sixty (60) days after it is entered; (v) Tenant or any guarantor of Tenant's obligations hereunder shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; or (vi) the estate or interest of Tenant in any Property shall be levied upon or attached in any proceeding and such estate or interest is about to be sold or transferred or such process shall not be vacated or discharged within sixty (60) days after such levy or attachment.
(b) If any Event of Default shall have occurred, Landlord shall have the right at its option, then or at any time thereafter, to do any one or more of the following without demand upon or notice to Tenant:
(i) Landlord may give Tenant notice (following the occurrence of an Event of Default) of Landlord's intention to terminate this Lease on a date specified in such notice (which date shall be no sooner than five (5) days after the date of the notice). Upon the date therein specified, the Term and the estate hereby granted and all rights of Tenant hereunder shall expire and terminate as if such date were the date hereinabove fixed for the expiration of the Term, but Tenant shall remain liable for all its obligations hereunder through the date hereinabove fixed for the expiration of the Term, including its liability for Basic Rent and Additional Rent as hereinafter provided.
(ii) Landlord may, whether or not the Term of this Lease shall have been terminated pursuant to clause (i) above give Tenant notice (following the occurrence of an Event of Default) to surrender any or all of the Properties to Landlord on a date specified in such notice (which date shall be no sooner than five (5) days after the date of the notice), at which time Tenant shall surrender and deliver possession of any or all of the Properties to Landlord unless the Event of Default for which the termination is effected has been cured by Tenant. Upon or at any time after taking possession of any or all of the Properties, Landlord may remove any persons or property therefrom. Landlord shall be under no liability for or by reason of any such entry, repossession or removal. No such entry or repossession shall be construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such intention to Tenant pursuant to clause (i) above.
(iii) After repossession of any or all of the Properties pursuant to clause (ii) above, whether or not this Lease shall have been terminated pursuant to clause (i) above, Landlord may relet the Property or any part thereof to such tenant or tenants for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the Term) for such rent, on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its propertyreasonable discretion, may determine; orand Landlord shall collect and receive any rents payable by reason of such reletting. The rents received on such reletting shall be applied (A) first to the reasonable and actual expenses of such reletting and collection, including without limitation necessary renovation and alterations of the Properties, reasonable and actual attorneys' fees and any reasonable and actual real estate commissions paid, and (B) thereafter toward payment of all sums due or to become due Landlord hereunder. If a sufficient amount to pay such expenses and sums shall not be realized or secured, then Tenant shall pay Landlord any such deficiency monthly, and Landlord may bring an action therefor as such monthly deficiency shall arise. Landlord shall not, in any event, be required to pay Tenant any sums received by Landlord on a reletting of the Properties in excess of the rent provided in this Lease, but such excess shall reduce any accrued present or future obligations of Tenant hereunder. Landlord's re-entry and reletting of the Properties without termination of this Lease shall not preclude Landlord from subsequently terminating this Lease as set forth above. Landlord may make such Alterations as Landlord in its reasonable discretion may deem advisable. Tenant agrees to pay Landlord, as Additional Rent, immediately upon demand, all reasonable expenses incurred by Landlord in obtaining possession, in performing Alterations and in reletting any of the Properties, including fees and commissions of attorneys, architects, agents and brokers.
(iv) a custodian (including without limitation a trustee or receiver) is appointed for Tenant or any of its subsidiaries or for the major part of the property of either and is not discharged within 90 days after such appointment; or
(v) bankruptcy or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of its subsidiaries and, if instituted against Tenant or any such subsidiary are consented to or are not dismissed within 90 days after such institution; or
(vi) if the Premises shall have been left abandoned for a period of 30 days; or
(vii) if If Tenant shall fail to observe make payment of any installment of Basic Rent or perform any provision Additional Rent on or before the date when each such payment is due, Tenant shall pay to Landlord, a sum equal to five (5%) percent per annum above the then current Prime Rate, as hereinafter defined, of the Assignment of Lease dated as of _____________, ______ amount unpaid (the "AssignmentDefault Rate") among Landlordcomputed from the date such payment of Basic Rent or Additional Rent was due to and including the date of payment. The term "Prime Rate" shall mean the prime rate of interest published in the Wall Street Journal or its successor, Tenant and the Note Purchaser relating from time to the Premises; oftime.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an Event event of Default ("Event of Default") default under this Lease:
; (i) if Tenant Lessee shall (l) fail to pay any Basic Rent, additional rent or other sum required to be paid by Tenant hereunder; or
Lessee hereunder and such failure shall continue for 10 days after notice to Lessee of such failure or (ii2) if Tenant shall fail to observe or perform any other provision hereof and such failure shall continue unremedied for 30 days after notice to Lessee of such failure (provided, that in the earlier case of (1) written notice any such default which cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof from Landlord orwith diligence, the Note Purchaser time within which such default may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence); or (ii) if Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any federal or state bankruptcy law or any holder of the Notes to Tenant, (2) the first date on which an officer of Tenant shall have actual knowledge that a default has occurred and is continuing under this Section 18(a)(ii); or
(iii) if Tenant or any of its subsidiaries has entered against it or on its behalf an order for relief under the Federal bankruptcy laws, or any other applicable Federal similar federal or state bankruptcy, insolvency or other similar law, or becomes insolvent, shall be adjudicated a bankrupt or makes become insolvent or shall make an assignment for the benefit of creditors, creditors or fails shall admit in writing its inability to generally pay its debts generally as such debts they become due, or Tenant if a petition or answer proposing the adjudication of Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy law or any similar federal or state law shall be filed in any court and Lessee shall consent to or acquiesce in the filing thereof or such subsidiary applies for petition or consents to answer shall not be discharged or denied within 90 days after the appointment of filing thereof; or (iii) if a receiver, trustee or receiver liquidator of Lessee or for of all or substantially all of the major part assets of its property; or
(iv) a custodian (including without limitation a Lessee or of the Premises or Lessee's estate therein shall be appointed in any proceeding brought by Lessee, or if any such receiver, trustee or receiver) is liquidator shall be appointed for Tenant or in any of its subsidiaries or for the major part of the property of either proceeding brought against Lessee and is shall not be discharged within 90 days after such appointment; or
(v) bankruptcy or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of its subsidiaries and, if instituted against Tenant or any such subsidiary are consented Lessee shall consent to or are not dismissed within 90 days after acquiesce in such institutionappointment; or
or (viiv) if the Premises shall have been left abandoned unoccupied and unattended for a period of 30 days; or.
(viib) If an event of default shall have happened and be continuing, Lessor shall have the right to give Lessee notice of Lessor's intention to terminate the term of this Lease on a date not less than 5 days after the date of such notice. Upon the giving of such notice, the term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if Tenant shall fail to observe or perform any provision such date were the date herein fixed for the expiration of the Assignment term of this Lease, and all rights of Lessee hereunder shall expire and terminate, but Lessee shall remain liable as hereinafter provided.
(c) If an event of default shall have happened and be continuing, Lessor shall have the immediate right, whether or not the term of this Lease dated as of _____________shall have been terminated pursuant to paragraph 17(b), ______ (to re-enter and repossess the "Assignment") among LandlordPremises by summary proceedings, Tenant ejectment or in any manner Lessor determines to be necessary or desirable and the Note Purchaser relating right to remove all persons and property therefrom. Lessor shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry or repossession of the Premises shall be construed as an election by Lessor to terminate the term of this Lease unless a notice of such intention is given to Lessee pursuant to paragraph 17(b), or unless such termination is decreed by a court of competent jurisdiction.
(d) At any time or from time to time after the re-entry or repossession of the Premises pursuant to paragraph 17(c), whether or not the term of this Lease shall have been terminated pursuant to paragraph 17(b), Lessor may (but shall be under no obligation to) relet the Premises for the account of Lessee, in the name of Lessee or Lessor or otherwise, without notice to Lessee, for such term or terms and on such conditions and for such uses as Lessor, in its absolute discretion, may determine, subject to the Premisesprovisions of the Ground Lease. Lessor may collect and receive any rents payable by reason of such reletting. Lessor shall not be liable for any failure to relet the Premises or for any failure to collect any rent due upon any such reletting.
(e) No expiration or termination of the term of this Lease pursuant to paragraph 17(b), by operation of law or otherwise, and no re-entry or repossession of the Premises pursuant to paragraph 17(c) or otherwise, and no reletting of the Premises pursuant to paragraph 17(d) or otherwise, shall relieve Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession or reletting.
(f) In the event of any expiration or termination of the term of this Lease or re-entry or repossession of the Premises by reason of the occurrence of an event of default, Lessee will pay to Lessor all Basic Rent, additional rent and other sums required to be paid by Lessee to and including the date of such expiration, termination, re-entry or repossession; ofand, thereafter, Lessee shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry or repossession, and whether or not the Premises shall have been relet, be liable to Lessor for, and shall pay to Lessor, as liquidated and agreed current damages: (i) all Basic Rent, additional rent and other sums which would be payable under this Lease by Lessee in the absence of such expiration, termination, re-entry or repossession, less (ii) the net proceeds, if any, of any reletting effected for the account of Lessee pursuant to paragraph 17(d), after deducting from such proceeds all Lessor's expenses in connection with such reletting (including all repossession costs, brokerage commissions, property management fees, reasonable attorneys' fees and expenses, employees' expenses, alteration costs and expenses of preparation for such reletting). Lessee will pay such current damages on the days on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry or repossession, and Lessor shall be entitled to recover the same from Lessee on each such day.
(g) The words "re-enter" or "re-entry" as used in this paragraph 17 are not restricted to their technical meaning.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an Event of Default ("Event of Default") " under this Lease:
(i) if Tenant shall (1) fail to pay any Basic Rent, additional rent Additional Rent or other sum as and when required to be paid by Tenant hereunder; or
, and such failure shall continue for three Business Days after written notice to Tenant of such default, or (ii2) if Tenant shall fail to observe or perform any other provision hereof (other than those specified in clauses (ii)-(x) of this subsection 5.1(a)) and such failure shall continue unremedied for 30 thirty (30) days after the earlier of (1) written notice to Tenant of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant shall commence promptly to cure the same and thereafter prosecute the curing thereof from Landlord orwith diligence, the Note Purchaser time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed 180 days from the date of such original failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any holder notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the Notes to Tenant, (2) time when the first date on which an officer of Tenant same shall have actual knowledge that a default has occurred and is continuing under this Section 18(a)(ii)been made; or
(iii) if Tenant or Sierra Health Services, Inc., a Nevada corporation (" Guarantor" ) shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any of its subsidiaries has entered against it federal or on its behalf an order for relief under the Federal bankruptcy laws, state law (or any other applicable Federal or state bankruptcy, insolvency or other similar lawlaw governing Guarantor), or becomes insolvent, shall be adjudicated a bankrupt or makes become insolvent or shall make an assignment for the benefit of creditors, creditors or fails shall admit in writing its inability to generally pay its debts generally as such debts they become due, or if a petition or answer proposing the adjudication of Tenant or Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or Guarantor shall consent to or acquiesce in the filing thereof or such subsidiary applies for petition or consents to answer shall not be discharged or denied within ninety (90) days after the appointment of a trustee or receiver or for the major part of its propertyfiling thereof; or
(iv) if a custodian (including without limitation a receiver, trustee, administrator or liquidator of Tenant or Guarantor or of all or substantially all of the assets of Tenant or Guarantor or of the Premises or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or Guarantor, or if any such receiver, trustee or receiver) is liquidator shall be appointed for in any proceeding brought against Tenant or any of its subsidiaries or for the major part of the property of either Guarantor and is shall not be discharged within 90 ninety (90) days after such appointment, or if Tenant or Guarantor shall consent to or acquiesce in such appointment; or
(v) bankruptcy if Guarantor shall dissolve or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of otherwise fail to maintain its subsidiaries and, if instituted against Tenant or any such subsidiary are consented to or are not dismissed within 90 days after such institutionlegal existence; or
(vi) if the Premises Tenant shall have been left abandoned for a period default under Section 4.1 of 30 daysthis Lease; or
(vii) if Guarantor shall default under the provisions of its guaranty;
(viii) if an Event of Default shall occur and continue under any of the leases set forth in Schedule G and the landlord thereunder is the same as, or is an affiliate of, the Landlord under this Lease; or
(ix) if Tenant shall fail to observe maintain or perform replace any provision insurance required to be maintained or replaced by Tenant in accordance with the terms and conditions of Section 3.6 hereof; or
(x) if Tenant shall dissolve or otherwise fail to maintain its legal existence unless such dissolution or termination of Tenant's legal existence occurs in connection with a merger completed in accordance with Section 4.1(b). (As used in Section 5.1 (a) (viii), an entity is an "affiliate" of Landlord if such entity controls, is controlled by, or is under common control with, Landlord or any entity controlling Landlord.)
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord (with Lender's consent) shall have the right to give Tenant notice of Landlord's termination of the Assignment term of this Lease. Upon the giving of such notice, the term of this Lease dated and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of _____________the term of this Lease, ______ and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If an Event of Default shall have occurred and be continuing, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet the Premises for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet the Premises or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no reentry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, and subject to applicable law, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Default Rate from the due date thereof to and including the date of Such expiration, termination, re- entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not the Premises shall have been relet, be liable to Landlord for, and shall pay to Landlord, as damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as additional damages for Tenant's default and in lieu of damages beyond the date of such demand as outlined in Section 5.1 (f) above, an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations to pay damages under Section 5.1(f)) for what would be the then-unexpired Term in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "AssignmentTreasury Rate") among over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Future Rental Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an Appraiser (engaged by Landlord), with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Future Rental Damages shall be binding on Tenant and in the Note Purchaser relating absence of manifest error. If any law shall limit the amount of Future Rental Damages to less than the amount above agreed upon, Landlord shall be entitled to the Premises; ofmaximum amount allowable under such law.
Appears in 1 contract
Sources: Lease Agreement (Windrose Medical Properties Trust)
Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an Event of Default ("Event of Default") under this Lease:
: If Lessee shall (i1) if Tenant shall fail to pay any Basic Rent, additional rent or other sum within three (3) business days of when required to be paid by Tenant hereunder; or
Lessee hereunder or (ii2) if Tenant shall fail to observe or perform any other provision hereof and such nonmonetary failure shall continue unremedied for 30 thirty (30) days after the earlier of (1) written notice to Lessee of such failure (provided that, in the case of any such failure which cannot be cured by the payment of money and cannot with diligence be cured within such thirty (30) day period, if Lessee shall commence promptly to cure the same and thereafter prosecute the curing thereof from Landlord orwith diligence, the Note Purchaser time within which such failure may be cured shall be extended for such period not to exceed one hundred eighty (180) days, unless a longer period is agreed to by Lessor; If any representation or warranty of Lessee set forth in any holder certificate provided by Lessee pursuant to this Lease, shall prove to be incorrect in any material adverse respect as of the Notes to Tenant, (2) time when the first date on which an officer of Tenant same shall have actual knowledge that been made in a default has occurred way adverse to Lessor and is continuing under this Section 18(a)(ii)Lessor shall suffer a loss or detriment as a result thereof, including, without limitation, the taking of any action (including, without limitation, the demise of the Premises to Lessor herein) in reliance upon such representation or warranty and, in each case, the facts shall not be conformed to the representation and warranty as soon as practicable in the circumstances (but in no event to exceed thirty (30) days) after written notice to Lessee from Lessor of such inaccuracy and Lessor restored to the position it would have enjoyed had such representation or warranty been accurate at the time it was made; or
(iii) if Tenant If Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any of its subsidiaries has entered against it or on its behalf an order for relief under the Federal bankruptcy laws, or any other applicable Federal federal or state bankruptcy, insolvency law or other similar law, shall be adjudicated a bankrupt or becomes insolvent, become insolvent or makes shall make an assignment for the benefit of creditors, or fails if a petition proposing the adjudication of Lessee as a bankrupt or its reorganization pursuant to generally pay its debts as any federal or state bankruptcy law or any similar federal or state law shall be filed in any court and Lessee shall consent to or acquiesce in the filing thereof or such debts become duepetition shall not be discharged or denied within ninety (90) days after the filing thereof; If a receiver, trustee or conservator of Lessee, or Tenant of all or substantially all of the assets of Lessee, or of the Premises or Lessee's estate therein shall be appointed in any proceeding brought by Lessee, or if any such subsidiary applies for or consents to the appointment of a receiver, trustee or receiver or for the major part of its property; or
(iv) a custodian (including without limitation a trustee or receiver) is conservator shall be appointed for Tenant or in any of its subsidiaries or for the major part of the property of either proceeding brought against Lessee and is shall not be discharged within 90 ninety (90) days after such appointment; or
(v) bankruptcy or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of its subsidiaries and, if instituted against Tenant or any such subsidiary are consented Lessee shall consent to or are not dismissed within 90 days after acquiesce in such institutionappointment; or
(vi) if If the Premises shall have been left either (x) abandoned or (y) vacated for a period in excess of thirty (30) consecutive days (not including periods of repair or restoration following a casualty or condemnation or retenanting periods in connection with an existing sublease or assignment agreement); A default by Lessee beyond any applicable cure period in the payment of rent under, or in the performance of any other material provision of, any other lease or leases that have, in the aggregate, annual rental obligations of $500,000 or more if the lessor under any such lease or leases commences to exercise its remedies thereunder; A final, non-appealable judgment or judgments for the payment of money in excess of $5,000,000.00 in the aggregate shall be rendered against Lessee, which sum is not covered by insurance, and the same shall remain undischarged for a period of 30 dayssixty (60) consecutive days (unless payment is not then required by the judgment or the order issued in connection with the judgment); or
(vii) if Tenant Lessee shall be liquidated or dissolved or shall begin proceedings towards its liquidation or dissolution, except as allowed herein; Lessee shall sell or transfer or enter into an agreement to sell or transfer all or substantially all of its assets, except as allowed herein; Lessee shall fail to observe renew or perform replenish the Hold Back Amount in accordance with the requirements of Section 13.1; A default beyond any applicable cure period or at maturity by Lessee in any payment of principal or interest on Lessee's obligations under its senior secured credit facility or in the performance of any other provision contained in any instrument under which any such obligation is created or secured (including the breach of any covenant thereunder), (x) if such payment is a payment at maturity or a final payment, or (y) if such default causes such obligation to become due prior to its stated maturity. If an Event of Default shall have happened, be continuing and any grace period hereunder shall have expired, Lessor shall have the right to give Lessee notice of Lessor's termination of the Assignment Lease Term. Upon the giving of such notice, the Lease dated Term and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of _____________the Lease Term, ______ and all rights of Lessee hereunder shall expire and terminate, but Lessee shall remain liable as hereinafter provided. If an Event of Default shall have happened and be continuing, Lessor shall have the immediate right, whether or not the Lease Term shall have been terminated pursuant to Subsection 7.1(b), to reenter and repossess the Premises and the right to remove all persons and property (subject to Section 3.2) therefrom by summary proceedings, ejectment or any other legal action or in any lawful manner Lessor determines to be necessary or desirable. Lessor shall be under no liability by reason of any such reentry, repossession or removal. No such reentry, repossession or removal shall be construed as an election by Lessor to terminate the Lease Term unless a notice of such termination is given to Lessee pursuant to Subsection 7.1(b) or unless such termination is decreed by a court. At any time or from time to time after a reentry, repossession or removal pursuant to Subsection 7.1(c), whether or not the Lease Term shall have been terminated pursuant to Subsection 7.1(b), Lessor may (but shall be under no obligation to) relet the Premises for the account of Lessee, in the name of Lessee or Lessor or otherwise, without notice to Lessee, for such term or terms and on such conditions and for such uses as Lessor, in its absolute discretion, may determine. Lessor may collect any rents payable by reason of such reletting. Lessor shall not be liable for any failure to relet the Premises or for any failure to collect any rent due upon any such reletting. No expiration or termination of the Lease Term pursuant to Subsection 7.1(b), by operation of law or otherwise, and no reentry, repossession or removal pursuant to Subsection 7.1(c) or otherwise, and no reletting of the Premises pursuant to Subsection 7.1(d) or otherwise, shall relieve Lessee of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, reentry, repossession, removal or reletting. If an Event of Default shall have happened, be continuing and any grace period hereunder shall have expired, Lessor shall have the following options regarding monetary payments: In the event of any expiration or termination of the Lease Term or reentry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Lessee shall pay to Lessor all Basic Rent, additional rent and other sums required to be paid by Lessee, in each case to and including the date of such expiration, termination, reentry, repossession or removal, and, thereafter, Lessee shall, until the end of what would have been the Lease Term in the absence of such expiration, termination, reentry, repossession or removal and whether or not the Premises shall have been relet, be liable to Lessor for, and shall pay to Lessor, as liquidated and agreed current damages: (i) all Basic Rent, all additional rent and other sums which would be payable under this Lease by Lessee in the absence of any such expiration, termination, reentry, repossession or removal, together with all expenses of Lessor in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including, without limitation, fees and expenses of appellate proceedings), employee's expenses, alteration costs and expenses of necessary preparation for such reletting), less (ii) the net proceeds, if any, of any reletting effected for the account of Lessee pursuant to Subsection 7.1(d). Lessee shall pay such liquidated and agreed current damages on the dates on which rent would be payable under this Lease in the absence of such expiration, termination, reentry, repossession or removal, and Lessor shall be entitled to recover the same from Lessee on each such date. At any time after any such expiration or termination of the Lease Term or reentry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, whether or not Lessor shall have collected any liquidated and agreed current damages pursuant to Subsection 7.1(f)(i), Lessor shall be entitled to recover from Lessee, and Lessee shall pay to Lessor on demand, as and for liquidated and agreed final damages for Lessee's default and in lieu of all liquidated and agreed current damages beyond the date of such demand (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, additional rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, to date to which Lessee shall have satisfied in full its obligations under Subsection 7.1(f)(i) to pay liquidated and agreed current damages) for what would be the then unexpired Lease Term in the absence of such expiration, termination, reentry, repossession or removal, discounted at the rate of 5% per annum, over (b) the then fair rental value of the Premises, discounted at the rate of 5% per annum for the same period. If any law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Lessor shall be entitled to the maximum amount allowable under such law. In lieu of the provisions of Section 7.1(f)(i) and 7.1(f)(ii), Lessor may, upon notice to Lessee, require Lessee to make an irrevocable offer to terminate this Lease upon payment to Lessor of an amount (the "AssignmentDefault Termination Amount") among Landlord, Tenant specified in the next sentence. The "Default Termination Amount" shall be the greatest of (A) the sum of the fair market value of the Premises and the Note Purchaser relating applicable prepayment premium which Lessor will be required to pay in prepaying any loan with proceeds of the Default Termination Amount, (B) the sum of the Acquisition Cost (identified in Schedule E) and the applicable prepayment premium which Lessor will be required to pay in prepaying any loan with proceeds of the Default Termination Amount or (C) an amount equal to the Premises; ofpresent value of the entire Basic Rent from the date of such purchase to the date on which the Lease Term would expire, assuming that the Lease Term has been extended for all extension periods, if any, provided for in this Lease. Upon such notice to Lessee, Lessee shall be deemed to have made such offer and shall, if requested by Lessor, within ten (10) days following such request deposit with Lessor as payment against the Default Termination Amount the amount described in (B) above and Lessor and Lessee shall promptly commence to determine Fair Market Value. Within thirty (30) days after the Fair Market Value Date, Lessor shall accept or reject such offer. If Lessor accepts such offer then, on the tenth (10th) business day after such acceptance, Lessee shall pay to Lessor the Default Termination Amount and, at the request of Lessee, Lessor will convey the Premises to Lessee or its designee in accordance with Section 6.1. Any rejection by Lessor of such offer shall have no effect on any other remedy Lessor may have under this Lease. In lieu of the provisions of Sections 7.1(f)(i), 7.1(f)(ii) and 7.1(f)(iii), Lessor may, upon notice to Lessee, declare Rent (in the amount of Basic Rent then in effect) for the remainder of the then current Term to be immediately due and payable. Lessee shall immediately pay to Lessor all such Basic Rent discounted to its Present Value, all accrued Rent then due and unpaid, all other Monetary Obligations which are then due and unpaid and all Monetary Obligations which arise or become due by reason of such Event of Default (including any Costs of Lessor). Upon receipt by Lessor of all such accelerated Basic Rent and Monetary Obligations ,this Lease shall remain in full force and effect and Lessee shall have the right to possession of the Premises from the date of such receipt by Lessor to the end of the Term, and subject to all the provisions of this Lease, including the obligation to pay all increases in Basic Rent and all Monetary Obligations that subsequently become due, except that (A) no Basic Rent which has been prepaid hereunder shall be due thereafter during the said Lease Term, (B) Lessee shall have no option to extend or renew the Lease Term.
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any The occurrence of any one or more of the following occurrences events (any such event being specified herein as a “failure” or acts “default”) shall constitute an Event of Default ("Event of Default") under this Lease:
: (i) if a failure by Tenant shall fail to pay make (regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant from complying with the provisions of this Lease): (x) any payment of Basic RentRent which continues unremedied for a period of ten (10) business days after written notice (“Nonpayment Notice”) thereof given to Tenant by Landlord, additional rent or (y) any payment of Additional Rent or other sum herein required to be paid by Tenant hereunderwhich continues unremedied for a period of thirty (30) days after a Nonpayment Notice is given to Tenant by Landlord; or
(ii) if subject to Paragraph 18(b) above, failure by Tenant shall fail to observe perform and observe, or perform a violation or breach of, any other provision hereof in this Lease and such failure default shall continue unremedied for 30 a period of thirty (30) days after the earlier of (1) written notice thereof from is given by Landlord orto Tenant or if such default is of such a nature that it cannot reasonably be cured within such period of thirty (30) days, such period shall be extended for such longer time as is reasonably necessary not to exceed one hundred eighty (180) days in the Note Purchaser or any holder aggregate, provided that Tenant has commenced to cure such default within said period of the Notes to Tenant, thirty (230) the first date on which an officer of Tenant shall have actual knowledge that a default has occurred days and is continuing under this Section 18(a)(ii)actively, diligently and in good faith proceeding with continuity to remedy such default; or
(iii) if Tenant shall (A) voluntarily be adjudicated a bankrupt or any insolvent, (B) voluntarily consent to the appointment of its subsidiaries has entered against it a receiver or on its behalf an order trustee for itself or for the Leased Premises, (C) voluntarily file a petition seeking relief under the Federal bankruptcy laws, or any other applicable Federal or state bankruptcy, insolvency or other similar lawlaws of the United States, any state or any jurisdiction, or becomes insolvent, or makes an (D) voluntarily file a general assignment for the benefit of creditors; (iv) a court shall enter an order, judgment or fails to generally pay its debts as such debts become duedecree appointing, with the voluntary consent of Tenant, a receiver or trustee for Tenant or any such subsidiary applies for or consents to the appointment of a trustee or receiver or for the major Leased Premises or approving a petition filed against Tenant which seeks relief under the bankruptcy or other similar laws of the United States or any State, and such order, judgment or decree shall remain in force, undischarged or unstayed, ninety (90) business days after it is entered; (v) Tenant shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; or (vi) the estate or interest of Tenant in the Leased Premises shall be levied upon or attached in any proceeding and such estate or interest is about to be sold or transferred or such process shall not be vacated or discharged within ninety (90) business days after such levy or attachment. The foregoing notwithstanding, Lender and its successors, assigns and purchasers shall have no obligation to give Tenant any Nonpayment Notice with respect to any payment default under the terms of this Lease. If Lender or its successor, assigns or purchasers have succeeded to the interests of Landlord under this Lease, Tenant shall be in default (i) in the payment of Basic Rent if such payment of Basic Rent remains unpaid for a period of ten (10) days after the applicable Basic Rent Payment Date and (ii) with respect to the payment of Additional Rent is not paid within thirty (30) days after the date which such Additional Rent is due and payable.
(b) If any Event of Default shall have occurred, Landlord shall have the right at its option, then or at any time thereafter, during the continuance of such Event of Default, to do any one or more of the following without demand upon or (except as provided in this Paragraph 20(b)) notice to Tenant:
(i) Landlord may terminate this Lease effective on a date specified in a notice to Tenant. Upon the date therein specified, the Term and the estate hereby granted and all rights of Tenant hereunder shall expire and terminate as if such date were the date herein above fixed for the expiration of the Term, but Tenant shall remain liable for all its obligations hereunder through the date herein above fixed for the expiration of the Term, including its liability for Basic Rent and Additional Rent as hereinafter provided.
(ii) Landlord may, whether or not the Term of this Lease shall have been terminated pursuant to clause (i) above, give Tenant notice (following the occurrence of an Event of Default) to surrender the Leased Premises to Landlord on a date specified in such notice, at which time Tenant shall surrender and deliver possession of the Leased Premises to Landlord. Upon or at any time after taking possession of the Leased Premises, Landlord may remove any persons or property therefrom. Landlord shall be under no liability for or by reason of any such entry, repossession or removal. No such entry or repossession shall be construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such intention to Tenant pursuant to clause (i) above.
(iii) After repossession of the Leased Premises pursuant to clause (ii) above, whether or not this Lease shall have been terminated pursuant to clause (i) above, Landlord shall use commercially reasonable efforts to relet the Leased Premises or any part thereof to such tenant or tenants for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the Term) for such rent, on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its propertyreasonable discretion, may determine; orand Landlord shall collect and receive any rents payable by reason of such reletting. The rents received on such reletting shall be applied (A) first to the reasonable and actual expenses of such reletting and collection, including without limitation necessary renovation and alterations of the Leased Premises, reasonable and actual attorneys’ fees and any reasonable and actual real estate commissions paid, and (B) thereafter toward payment of all sums due or to become due Landlord hereunder. If a sufficient amount to pay such expenses and sums shall not be realized or secured, then Tenant shall pay Landlord any such deficiency monthly, and Landlord may bring an action therefor as such monthly deficiency shall arise. Landlord shall not, in any event, be required to pay Tenant any sums received by Landlord on a reletting of the Leased Premises in excess of the rent provided in this Lease, but such excess shall reduce any accrued present or future obligations of Tenant hereunder. Landlord’s re-entry and reletting of the Leased Premises without termination of this Lease shall not preclude Landlord from subsequently terminating this Lease as set forth above. Landlord may make such Alterations as Landlord in its reasonable discretion may deem advisable. Tenant agrees to pay Landlord, as Additional Rent, immediately upon demand, all reasonable expenses incurred by Landlord in obtaining possession, in performing Alterations and in reletting the Leased Premises, including reasonable fees and commissions of attorneys, architects, agents and brokers.
(iv) a custodian (including without limitation a trustee or receiver) is appointed for If Tenant shall fail to make payment of any installment of Basic Rent or any of its subsidiaries Additional Rent on or for before the major part of the property of either date when each such payment is due and is not discharged within 90 days after such appointment; or
(v) bankruptcy or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of its subsidiaries and, if instituted against Tenant or any such subsidiary are consented to or are not dismissed within 90 days after such institution; or
(vi) if the Premises shall have been left abandoned failure continues unremedied for a period of 30 days; or
ten (vii10) if business days (in the case of Basic Rent) or thirty (30) business days (in the case of Additional Rent) after a Nonpayment Notice is given to Tenant by Landlord or Lender or Lender’s designee, Tenant shall fail pay to observe or perform any provision of the Assignment of Lease dated as of _____________, ______ (the "Assignment") among Landlord, Tenant and the Note Purchaser relating to the Premises; ofa sum equal
Appears in 1 contract
Conditional Limitations; Default Provisions. (a) Any The occurrence of any one or more of the following occurrences events (any such event being specified herein as a “failure” or acts “default”) shall constitute an Event of Default ("Event of Default") under this Lease:
: (i) if a failure by Tenant to make (regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant from complying with the provisions of this Lease): (x) any payment of Basic Rent which continues unremedied for a period of ten (10) business days after written notice (“Nonpayment Notice”) thereof is given to Tenant by Landlord (provided, however, that after Landlord has given Tenant a Nonpayment Notice on two (2) prior occasions during any twelve (12) month period, Landlord shall fail not be required to pay give Tenant a Nonpayment Notice for any Basic Rentsubsequent failure during such twelve (12) month period), additional rent or (y) any payment of Additional Rent or other sum herein required to be paid by Tenant hereunderwhich continues unremedied for a period of thirty (30) days after a Nonpayment Notice is given to Tenant by Landlord (provided, however, that after Landlord has given Tenant a Nonpayment Notice on two (2) prior occasions during any twelve (12) month period, Landlord shall not be required to give Tenant a Nonpayment Notice for any subsequent failure during such twelve (12) month period); or
(ii) if subject to Paragraph 18(b) above, failure by Tenant shall fail to observe perform and observe, or perform a violation or breach of, any other provision hereof in this Lease and such failure default shall continue unremedied for 30 a period of thirty (30) days after the earlier of (1) written notice thereof from is given by Landlord orto Tenant or if such default is of such a nature that it cannot reasonably be cured within such period of thirty (30) days, such period shall be extended for such longer time as is reasonably necessary not to exceed ninety (90) days in the Note Purchaser or any holder aggregate, provided that Tenant has commenced to cure such default within said period of the Notes to Tenant, thirty (230) the first date on which an officer of Tenant shall have actual knowledge that a default has occurred days and is continuing under this Section 18(a)(ii)actively, diligently and in good faith proceeding with continuity to remedy such default; or
(iii) if Tenant shall (A) voluntarily be adjudicated a bankrupt or any insolvent, (B) voluntarily consent to the appointment of its subsidiaries has entered against it a receiver or on its behalf an order trustee for itself or for the Leased Premises, (C) voluntarily file a petition seeking relief under the Federal bankruptcy laws, or any other applicable Federal or state bankruptcy, insolvency or other similar lawlaws of the United States, any state or any jurisdiction, or becomes insolvent, or makes an (D) voluntarily file a general assignment for the benefit of creditors; (iv) a court shall enter an order, judgment or fails to generally pay its debts as such debts become duedecree appointing, with the voluntary consent of Tenant, a receiver or trustee for Tenant or any such subsidiary applies for or consents to the appointment of a trustee or receiver or for the major Leased Premises or approving a petition filed against Tenant which seeks relief under the bankruptcy or other similar laws of the United States or any State, and such order, judgment or decree shall remain in force, undischarged or unstayed, ninety (90) business days after it is entered; (v) Tenant shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; (vi) the estate or interest of Tenant in the Leased Premises shall be levied upon or attached in any proceeding and such estate or interest is about to be sold or transferred or such process shall not be vacated or discharged within ninety (90) business days after such levy or attachment; or (vii) the representations and warranties of Tenant contained in Paragraph 34 of this Lease shall be or become untrue or inaccurate in any respect. The foregoing notwithstanding, Lender and its successors, assigns and purchasers shall have no obligation to give Tenant any Nonpayment Notice with respect to any payment default under the terms of this Lease. If Lender or its successor, assigns or purchasers have succeeded to the interests of Landlord under this Lease, Tenant shall be in default (i) in the payment of Basic Rent if such payment of Basic Rent remains unpaid for a period of ten (10) days after the applicable Basic Rent Payment Date and (ii) with respect to the payment of Additional Rent is not paid within thirty (30) days after the date which such Additional Rent is due and payable.
(b) If any Event of Default shall have occurred, Landlord shall have the right at its option, then or at any time thereafter, during the continuance of such Event of Default, to do any one or more of the following without demand upon or (except as provided in this Paragraph 20(b)) notice to Tenant:
(i) Landlord may terminate this Lease effective on a date specified in a notice to Tenant. Upon the date therein specified, the Term and the estate hereby granted and all rights of Tenant hereunder shall expire and terminate as if such date were the date herein above fixed for the expiration of the Term, but Tenant shall remain liable for all its obligations hereunder through the date herein above fixed for the expiration of the Term, including its liability for Basic Rent and Additional Rent as hereinafter provided.
(ii) Landlord may, whether or not the Term of this Lease shall have been terminated pursuant to clause (i) above, give Tenant notice (following the occurrence of an Event of Default) to surrender the Leased Premises to Landlord on a date specified in such notice, at which time Tenant shall surrender and deliver possession of the Leased Premises to Landlord. Upon or at any time after taking possession of the Leased Premises, Landlord may remove any persons or property therefrom. Landlord shall be under no liability for or by reason of any such entry, repossession or removal. No such entry or repossession shall be construed as an election by Landlord to terminate this Lease unless Landlord gives a written notice of such intention to Tenant pursuant to clause (i) above.
(iii) After repossession of the Leased Premises pursuant to clause (ii) above, whether or not this Lease shall have been terminated pursuant to clause (i) above, Landlord shall use commercially reasonable efforts to relet the Leased Premises or any part thereof to such tenant or tenants for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the Term) for such rent, on such conditions (which may include concessions or free rent) and for such uses as Landlord, in its propertyreasonable discretion, may determine; orand Landlord shall collect and receive any rents payable by reason of such reletting. The rents received on such reletting shall be applied (A) first to the reasonable and actual expenses of such reletting and collection, including without limitation necessary renovation and alterations of the Leased Premises, reasonable and actual attorneys’ fees and any reasonable and actual real estate commissions paid, and (B) thereafter toward payment of all sums due or to become due Landlord hereunder. If a sufficient amount to pay such expenses and sums shall not be realized or secured, then Tenant shall pay Landlord any such deficiency monthly, and Landlord may bring an action therefor as such monthly deficiency shall arise. Landlord shall not, in any event, be required to pay Tenant any sums received by Landlord on a reletting of the Leased Premises in excess of the rent provided in this Lease, but such excess shall reduce any accrued present or future obligations of Tenant hereunder. Landlord’s re-entry and reletting of the Leased Premises without termination of this Lease shall not preclude Landlord from subsequently terminating this Lease as set forth above. Landlord may make such Alterations as Landlord in its reasonable discretion may deem advisable. Tenant agrees to pay Landlord, as Additional Rent, immediately upon demand, all reasonable expenses incurred by Landlord in obtaining possession, in performing Alterations and in reletting the Leased Premises, including reasonable fees and commissions of attorneys, architects, agents and brokers.
(iv) a custodian (including without limitation a trustee or receiver) is appointed for If Tenant shall fail to make payment of any installment of Basic Rent or any of its subsidiaries Additional Rent on or for before the major part of the property of either date when each such payment is due and is not discharged within 90 days after such appointment; or
(v) bankruptcy or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of its subsidiaries and, if instituted against Tenant or any such subsidiary are consented to or are not dismissed within 90 days after such institution; or
(vi) if the Premises shall have been left abandoned failure continues unremedied for a period of 30 days; or
ten (vii10) if days (in the case of Basic Rent) or twenty (20) days (in the case of Additional Rent) after a Nonpayment Notice is given to Tenant by Landlord or Lender or Lender’s designee, Tenant shall fail pay to observe or perform any provision Landlord, a sum equal to two (2%) percent per annum above the then current Prime Rate, as hereinafter defined, of the Assignment of Lease dated as of _____________, ______ amount unpaid (the "Assignment"“Default Rate”) among Landlordcomputed from the date such payment of Basic Rent or Additional Rent was due to and including the date of payment. The term “Prime Rate” shall mean the prime rate of interest published in the Wall Street Journal or its successor, Tenant and the Note Purchaser relating from time to the Premises; oftime.
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Conditional Limitations; Default Provisions. (a) Any of the following occurrences or acts shall constitute an Event of Default ("Event of Default") " under this Lease:
(i) if Tenant shall (1) fail to pay any Basic Rent, additional rent Additional Rent or other sum as and when required to be paid by Tenant hereunder; or
, and such failure shall continue for three Business Days after written notice to Tenant of such default, or (ii2) if Tenant shall fail to observe or perform any other provision hereof (other than those specified in clauses (ii)-(x) of this subsection 5.1(a)) and such failure shall continue unremedied for 30 thirty (30) days after the earlier of (1) written notice to tenant of such failure (provided, that in the case of any such failure which is capable of being cured but cannot be cured by the payment of money and cannot with diligence be cured within such 30-day period, if Tenant 25 shall commence promptly to cure the same and thereafter prosecute the curing thereof from Landlord orwith diligence, the Note Purchaser time within which such failure may be cured shall be extended for such period as is necessary to complete the curing thereof with diligence, but in no event to exceed 180 days from the date of such original failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any holder notice, certificate, demand, request or other document or instrument delivered to Landlord in connection with this Lease shall prove to be incorrect in any material respect as of the Notes to Tenant, (2) time when the first date on which an officer of Tenant same shall have actual knowledge that a default has occurred and is continuing under this Section 18(a)(ii)been made; or
(iii) if Tenant or Sierra Health Services, Inc., a Nevada corporation ("Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any of its subsidiaries has entered against it federal or on its behalf an order for relief under the Federal bankruptcy laws, state law (or any other applicable Federal or state bankruptcy, insolvency or other similar lawlaw governing Guarantor), or becomes insolvent, shall be adjudicated a bankrupt or makes become insolvent or shall make an assignment for the benefit of creditors, creditors or fails shall admit in writing its inability to generally pay its debts generally as such debts they become due, or if a petition or answer proposing the adjudication of Tenant or Guarantor as a bankrupt or its reorganization pursuant to any federal or state bankruptcy, liquidation, voluntary administration, administration, receivership, moratorium or trust law or any similar federal or state law shall be filed in any court and Tenant or Guarantor shall consent to or acquiesce in the filing thereof or such subsidiary applies for petition or consents to answer shall not be discharged or denied within ninety (90) days after the appointment of a trustee or receiver or for the major part of its propertyfiling thereof; or
(iv) if a custodian (including without limitation a receiver, trustee, administrator or liquidator of Tenant or Guarantor or of all or substantially all of the assets of Tenant or Guarantor or of the Premises or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or Guarantor, or if any such receiver, trustee or receiver) is liquidator shall be appointed for in any proceeding brought against Tenant or any of its subsidiaries or for the major part of the property of either Guarantor and is shall not be discharged within 90 ninety (90) days after such appointment, or if Tenant or Guarantor shall consent to or acquiesce in such appointment; or
(v) bankruptcy if Guarantor shall dissolve or insolvency proceedings, or other proceedings for relief under any bankruptcy or similar Federal or state law or laws for the relief of debtors, are instituted by or against Tenant or any of otherwise fail to maintain its subsidiaries and, if instituted against Tenant or any such subsidiary are consented to or are not dismissed within 90 days after such institutionlegal existence; or
(vi) if the Premises Tenant shall have been left abandoned for a period default under Section 4.1 of 30 daysthis Lease; or
(vii) if Guarantor shall default under the provisions of its guaranty;
(viii) if an Event of Default shall occur and continue under any of the leases set forth in Schedule G and the landlord thereunder is the same as, or is an affiliate of, the landlord under this lease; or
(ix) if Tenant shall fail to observe maintain or perform replace any provision insurance required to be maintained or replaced by Tenant in accordance with the terms and conditions of Section 3.6 hereof; or 26
(x) if Tenant shall dissolve or otherwise fail to maintain its legal existence unless such dissolution or termination of Tenant's legal existence occurs in connection with a merger completed in accordance with Section 4.1(b). (As used in Section 5.1(a) (viii), an entity is an "affiliate" of Landlord if such entity controls, is controlled by, or is under common control with, Landlord or any entity controlling Landlord.)
(b) If an Event of Default shall have occurred and be continuing Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, Landlord (with Lender's consent) shall have the right to give Tenant notice of Landlord's termination of the Assignment term of this Lease. Upon the giving of such notice, the term of this Lease dated and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of _____________the term of this Lease, ______ and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided.
(c) If an Event of Default shall have occurred and be continuing, Landlord shall have the immediate right, whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable, so long as Landlord is proceeding in accordance with applicable law and, if required under applicable law, under authority of a court of proper jurisdiction. Landlord shall be under no liability by reason of any such re-entry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 5.1(b).
(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 5.1(c), whether or not the term of this Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet the Premises for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet the Premises or for any failure to collect any rent due upon any such reletting.
(e) No expiration or earlier termination of the term of this Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no reentry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the Premises pursuant to Section 5.1(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.
(f) In the event of the expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, and subject to applicable law, Tenant shall pay to Landlord all Basic Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Default Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not the Premises shall have been relet, be liable to Landlord for, and shall pay to Landlord, as damages: (i) all Basic Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal, less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to Section 5.1(d), after deducting from such proceeds all expenses of Landlord in connection with such reletting (including, without limitation, all repossession costs, brokerage commissions, reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings), employees' expenses, alteration costs and expenses of preparation for such reletting). Tenant shall pay such damages on the dates on which Basic Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.
(g) At any time after any such expiration or earlier termination of the term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have previously collected any damages pursuant to Section 5.1(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as additional damages for Tenant's default and in lieu of damages beyond the date of such demand as outlined in Section 5.1(f) above, an amount equal to the excess, if any, of (a) the aggregate of all Basic Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations to pay damages under Section 5.1(f)) for what would be the then unexpired Term in the absence of such expiration, termination, re-entry, repossession or removal, discounted at a rate equal to the then yield on U.S. Treasury obligations of comparable maturity to the Term (the "AssignmentTreasury Rate") among over (b) the then fair rental value of the Premises for what would be such then unexpired term of this Lease, discounted at the Treasury Rate for the same period (such excess being hereinafter referred to as "Future Rental Damages"). For purposes of determining value pursuant to this Section 5.1(g), the following shall apply: (a) determinations of fair rental value shall be made by an Appraiser (engaged by Landlord), with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Future Rental Damages shall be binding on Tenant and in the Note Purchaser relating absence of manifest error. If any law shall limit the amount of Future Rental Damages to less than the amount above agreed upon, Landlord shall be entitled to the Premises; ofmaximum amount allowable under such law.
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Sources: Lease Agreement (Windrose Medical Properties Trust)