Conditional Limitations; Default Provisions. Section 20.1. This lease and the term of this lease are subject to the limitations that if, at any time prior to or during the term of this lease, any one or more of the following events (herein called an "Event of Default") shall occur, that is to say: 20.1.1. If Tenant shall make an assignment for the benefit of its creditors; or 20.1.2. If any petition shall be filed against Tenant in any court, whether or not pursuant to any statute of the United States or of any State, in any bankruptcy, reorganization, composition, extension, arrangement or insolvency proceeding, and if any such proceeding shall not be dismissed within ninety (90) days after the institution of the same; or if any such petition shall be so filed by Tenant; or 20.1.3. If, in any proceeding, a receiver or trustee be appointed for all or any portion of Tenant's property, and such receivership or trusteeship shall not be vacated or set aside within ninety (90) days after the appointment of such receiver or trustee; or 20.1.4. If Tenant shall fail to pay any installment of the Fixed Annual Rent or any Additional Rent (subject to Sections 20.1.5 and 20.1.6 below), or any part thereof, when the same shall become due and payable, and such failure shall continue for ten (10) days after notice thereof from Landlord to Tenant, provided, however, that Landlord shall be required to give Tenant notice of failure to pay only for the first two (2) times in any twelve (12) month period, and further provided that, with respect to any payment to be made to a Fee Mortgagee, (i) same shall be paid by Tenant at least two (2) business days prior to the expiration of the grace or cure period contained in such Fee Mortgage, (ii) proof of payment by facsimile transmission shall be sent to Landlord immediately upon payment by Tenant and (iii) no notice of failure to pay such payment to a Fee Mortgagee shall be given by Landlord to Tenant. A failure on the part of Tenant to pay such requisite amounts under a Fee Mortgage in accordance with this provision (unless Fee Mortgagee waives any resulting default or reinstates the Fee Mortgage following such default) shall constitute an Event of Default. However, the failure on the part of Tenant to submit proof of payment thereof shall constitute an Event of Default under this lease only if (i) Tenant has received notice from Landlord that Landlord has not received said copies and (ii) Tenant has not forwarded said copies within ten (10) business days of receipt of said notice; or 20.1.5. If Tenant fails to comply with Section 34.2, unless the Fee Mortgagee agrees to waive all default interest and penalties ("Penalties") in respect of such failure to refinance the Fee Mortgage or extend the maturity date thereof or Tenant pays such Penalties to the Fee Mortgagee or escrows same with the Landlord's counsel (provided, however, if, thereafter, the Fee Mortgagee waives the Penalties or Tenant refinances the Fee Mortgage or extends the maturity date of the Fee Mortgage as required by Section 34.2, such escrow shall be released to Tenant); or 20.1.6. If Tenant fails to comply with Section 34.2, and the Fee Mortgagee commences a foreclosure proceeding or sends written notice to Landlord that it intends to commence a foreclosure proceeding (provided, however, if the Fee Mortgagee rescinds any notice of foreclosure or discontinues, or agrees in writing to discontinue, any foreclosure proceeding once it is commenced, such default shall be deemed waived by the Landlord); or 20.1.7. If Tenant shall fail to perform or observe any other requirement of this lease (not hereinbefore in this Section 20.1 specifically referred to) on the part of Tenant to be performed or observed (other than the payment of a sum of money) and such failure shall continue for thirty (30) days after notice thereof from Landlord to Tenant (subject, however, to the provisions of Sections 20.5 and 24.4); 20.1.8. If the Optionee fails to pay the Option Payments when the same shall become due and payable, and such failure shall continue for ten (10) Business Days after notice thereof from Landlord to Tenant; Then, upon the happening of any one or more of the aforementioned Events of Default, (subject to the reinstatement of the Fee Mortgage or a waiver by Fee Mortgagee of any default under the Fee Mortgage as provided in Section 20.1.4 above) Landlord may give to Tenant a notice (hereinafter called "notice of termination") terminating this lease at the expiration of five (5) business days from the date of Tenant's receipt of such notice of termination, and at the expiration of such five (5) business days, this lease and the term of this lease, as well as all of the right, title and interest of the Tenant hereunder, shall wholly cease and expire in the same manner and with the same force and effect as if the date of expiration of such five (5) day period were the date originally specified herein for the expiration of the term of this lease, and Tenant shall then quit and surrender the Demised Premises to Landlord, and Landlord or Landlord's agents or servants may, either by summary process or by any suitable action or proceeding at law, immediately or at any time thereafter re-enter the Demised Premises and remove therefrom Tenant, its agents, employees, servants, licensees, and any Subtenants and other persons, and all or any of its or their property therefrom, and repossess and enjoy the Demised Premises, together with all additions, alterations and improvements thereto; but Tenant shall remain liable as hereinafter provided, subject to the provisions of Article 31. Section 20.2. Subject to the rights of any Mortgagee, if this lease shall be terminated as provided in Section 20.1, all of the right, title, estate and interest of Tenant (a) in and to the Building and the Building Equipment, all changes, additions and alterations therein, and all renewals and replacements thereof, (b) in and to all rents, income, receipts, revenues, issues and profits issuing from the Demised Premises, or any part thereof, whether then accrued or to accrue, (c) in and to all insurance policies and all insurance monies premiums or awards paid or payable thereunder, and (d) in the then entire undisbursed balance of any funds in the hands of the Depository, shall automatically pass to, vest in and belong to Landlord, without further action on the part of either party, free of any claim thereto by Tenant. Section 20.3. Subject to the provisions of Article 31, if this lease is terminated under the provisions of Section 20.1 or in the event of the termination of this lease, or of re-entry, by or under any summary dispossess or other proceeding or action or any provision of law by reason of an Event of Default hereunder on the part of Tenant; Tenant shall pay Landlord the fair rental value of any space in the Demised Premises occupied by Tenant or an Affiliate after such termination or re-entry, without thereby creating a landlord-tenant relationship and Tenant shall be liable for no other damages. In the event of a breach or threatened breach by Tenant of any of the covenants or provisions hereof beyond the applicable grace period, if any, Landlord shall have the right to seek an injunction and the right to invoke any remedy allowed at law or in equity as if re-entry, summary proceedings and other remedies were not herein provided for. Mention in this lease of any particular remedy shall not preclude Landlord from any other remedy, in law or in equity. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant being evicted or dispossessed for any cause, or in the event of Landlord obtaining possession of the Demised Premises by reason of the violation by Tenant of any of the covenants and conditions of this lease. Section 20.4. Tenant, for itself and any and all persons claiming through or under Tenant, including its creditors, upon the termination of this lease and of the term of this lease in accordance with the terms hereof, or in the event of entry of judgment for the recovery of the Possession of the Demised Premises in any action or proceeding, or if Landlord shall enter the Demised Premises by process of law hereby waives any right of redemption provided or permitted by any statute, law or decision now or hereafter enforce, and does hereby waive, surrender and give up all rights or privileges which it or they may or might have under and by reason of any present or future law or decision, to redeem the Demised Premises or for a continuation of this lease for the term of this lease hereby demised after having been dispossessed or ejected therefrom by process of law. Section 20.5. Anything in this Article 20 to the contrary notwithstanding it is expressly understood that with respect to any Event of Default within the purview of Section 20.1.7 only, if such Event of Default cannot with the exercise of reasonable diligence, because of Unavoidable Delays or otherwise, be cured within the period of thirty (30) days provided for in said Section, Landlord shall not be entitled to serve a notice of termination upon Tenant, as provided in Section 20.1, if Tenant shall commence the curing of such Event of Default promptly after notice thereof from Landlord and shall thereafter proceed with reasonable diligence to complete the curing of such Event of Default, subject to Unavoidable Delays, it being the intention hereof that in connection with any Event of Default within the purview of Section 20.1.7 only, which is not susceptible of being cured with due diligence within said thirty (30) days, the time of Tenant within which to cure the same shall be extended for such period as may be necessary to complete the same with reasonable diligence, subject to Unavoidable Delays. If at any time Landlord has reasonably determined that Tenant has not proceeded with reasonable diligence to complete the curing of such Event of Default, Landlord shall not be entitled to serve a notice of termination unless Landlord has notified Tenant of such determination and Tenant has failed to respond within five (5) business days after its receipt of such notice. Any dispute between Landlord and Tenant with respect to the subject matter hereof shall be submitted to arbitration pursuant to Article 44. Section 20.6. The words "re-enter" and "re-entry" as used herein are not restricted to their technical legal meanings. Section 20.7. If (a) there shall be an Event of Default and (b) Tenant shall not be attempting to cure such Event of Default with reasonable diligence, then Landlord may, but shall not be obligated to do so, after written notice to Tenant and without waiving or releasing Tenant from any obligations of Tenant in this lease contained, make such payment or perform such act which Tenant is obligated to perform under this lease in such manner and to such extent as may be necessary to cure such Event of Default, and, in exercising any such rights, pay any necessary and incidental costs and expenses, employ counsel and incur and pay reasonable attorneys' fees. All sums so paid by Landlord and all necessary costs and expenses of Landlord incidental thereto, together with interest thereon at the Lease Interest Rate from the date of the making of such expenditures by Landlord, shall be deemed to be Additional Rent and, except as otherwise in this lease expressly provided, shall be payable to the Landlord twenty (20) days after demand, and if not promptly paid shall be added to any rent then due or thereafter becoming due under this lease, and Tenant covenants to pay any such sum or sums with interest as aforesaid and Landlord shall have (in addition to any other right or remedy of Landlord) the same rights and remedies in the event of the non-payment thereof by Tenant as in the case of default by Tenant in the payment of the Fixed Annual Rent.
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Sources: Lease (Northstar Capital Investment Corp /Md/), Lease (Northstar Capital Investment Corp /Md/)
Conditional Limitations; Default Provisions. Section 20.1. This lease and the term of this lease are subject to the limitations that if, at any time prior to or during the term of this lease, any one or more (a) Any of the following events (herein called occurrences or acts shall constitute an "“Event of Default") shall occur, that is to say” under this Lease:
20.1.1. If (i) if Tenant shall make an assignment for the benefit of its creditors; or
20.1.2. If any petition shall be filed against Tenant in any court, whether or not pursuant to any statute of the United States or of any State, in any bankruptcy, reorganization, composition, extension, arrangement or insolvency proceeding, and if any such proceeding shall not be dismissed within ninety (901) days after the institution of the same; or if any such petition shall be so filed by Tenant; or
20.1.3. If, in any proceeding, a receiver or trustee be appointed for all or any portion of Tenant's property, and such receivership or trusteeship shall not be vacated or set aside within ninety (90) days after the appointment of such receiver or trustee; or
20.1.4. If Tenant shall fail to pay any installment of the Fixed Annual Basic Rent, Additional Rent or any Additional Rent (subject other sum as and when required to Sections 20.1.5 and 20.1.6 below), or any part thereof, when the same shall become due and payablebe paid by Tenant under this Lease, and such failure shall continue for ten (10) days after notice thereof from Landlord to Tenant, provided, however, that Landlord shall be required to give Tenant notice of failure to pay only for the first two (2) times in any twelve Business Days (12) month period, and further provided that, with respect to Basic Rent or 5 Business Days (with respect to Additional Rent or any other sum) after delivery of written notice from Landlord (or Lender) to Tenant that such payment to be made to a Fee Mortgageewas not received when due, (i) same shall be paid by Tenant at least two or (2) business days prior to the expiration of the grace or cure period contained in such Fee Mortgage, (ii) proof of payment by facsimile transmission shall be sent to Landlord immediately upon payment by Tenant and (iii) no notice of failure to pay such payment to a Fee Mortgagee shall be given by Landlord to Tenant. A failure on the part of Tenant to pay such requisite amounts under a Fee Mortgage in accordance with this provision (unless Fee Mortgagee waives any resulting default or reinstates the Fee Mortgage following such default) shall constitute an Event of Default. However, the failure on the part of Tenant to submit proof of payment thereof shall constitute an Event of Default under this lease only if (i) Tenant has received notice from Landlord that Landlord has not received said copies and (ii) Tenant has not forwarded said copies within ten (10) business days of receipt of said notice; or
20.1.5. If Tenant fails to comply with Section 34.2, unless the Fee Mortgagee agrees to waive all default interest and penalties ("Penalties") in respect of such failure to refinance the Fee Mortgage or extend the maturity date thereof or Tenant pays such Penalties to the Fee Mortgagee or escrows same with the Landlord's counsel (provided, however, if, thereafter, the Fee Mortgagee waives the Penalties or Tenant refinances the Fee Mortgage or extends the maturity date of the Fee Mortgage as required by Section 34.2, such escrow shall be released to Tenant); or
20.1.6. If Tenant fails to comply with Section 34.2, and the Fee Mortgagee commences a foreclosure proceeding or sends written notice to Landlord that it intends to commence a foreclosure proceeding (provided, however, if the Fee Mortgagee rescinds any notice of foreclosure or discontinues, or agrees in writing to discontinue, any foreclosure proceeding once it is commenced, such default shall be deemed waived by the Landlord); or
20.1.7. If Tenant shall fail to observe or perform or observe any other requirement provision of this lease (not hereinbefore in this Section 20.1 specifically referred to) on the part of Tenant to be performed or observed Lease (other than the payment those referred to in clauses (vii) and (ix) of a sum of moneythis Section 5.1(a)) and such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant of such failure (subjectprovided, howeverthat 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 the provisions of Sections 20.5 and 24.4);
20.1.8. If the Optionee fails to pay the Option Payments when cure the same shall become due and payablethereafter prosecute the curing thereof with diligence, and the time within which such failure may be cured shall continue be extended for ten such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred eighty (10180) Business Days after notice thereof from Landlord to Tenant; Then, upon the happening of any one or more of the aforementioned Events of Default, (subject to the reinstatement of the Fee Mortgage or a waiver by Fee Mortgagee of any default under the Fee Mortgage as provided in Section 20.1.4 above) Landlord may give to Tenant a notice (hereinafter called "notice of termination") terminating this lease at the expiration of five (5) business days from the date of such failure; or;
(ii) if any representation or warranty of Tenant's receipt , Seller or Guarantor set forth herein, in the Contract of Sale or in any 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 time when the same shall have been made; or
(iii) if Tenant or any guarantor of Tenant’s obligations under this Lease (a “Guarantor”) shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a 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 such notice Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of termination, and at the expiration Tenant or any Guarantor or of such five (5) business days, this lease and the term of this lease, as well as all or substantially all of the rightassets of Tenant or such Guarantor or of any Project or Tenant’s estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, title or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and interest shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a period of thirty (30) days (other than as permitted by Section 1.2(b)); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Section 4.1(a), 4.1(b) or 4.1(d) or Schedule K of this Lease; or
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 of this Lease or the letter of even date herewith from Tenant to Landlord relating to insurance; or
(x) if Tenant shall default under Sections 7.2 and/or 7.3 of this Lease.
(xi) Any event that but for the giving of notice or the passage of time would be an Event of Default shall be a “Default.”
(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 shall have the right to give Tenant notice of Landlord’s termination of the Tenant hereunderTerm of this Lease. Upon the giving of such notice, the Term of this Lease and the estate hereby granted shall wholly cease expire and expire in the same manner terminate on such date as fully and completely and with the same force and effect as if the such date of expiration of such five (5) day period were the date originally specified herein fixed for the expiration of the term Term of this lease, and Tenant shall then quit and surrender the Demised Premises to Landlord, and Landlord or Landlord's agents or servants may, either by summary process or by any suitable action or proceeding at law, immediately or at any time thereafter re-enter the Demised Premises and remove therefrom Tenant, its agents, employees, servants, licensees, and any Subtenants and other personsLease, and all or any rights of its or their property therefromTenant under this Lease shall expire and terminate, and repossess and enjoy the Demised Premises, together with all additions, alterations and improvements thereto; but Tenant shall remain liable as hereinafter provided, subject to the provisions of Article 31.
Section 20.2. Subject to the rights of any Mortgagee, if this lease shall be terminated as provided in Section 20.1, all of the right, title, estate and interest of Tenant (a) in and to the Building and the Building Equipment, all changes, additions and alterations therein, and all renewals and replacements thereof, (b) in and to all rents, income, receipts, revenues, issues and profits issuing from the Demised Premises, or any part thereof, whether then accrued or to accrue, (c) in and to all insurance policies and all insurance monies premiums or awards paid or payable thereunder, and (d) in the then entire undisbursed balance of any funds in the hands of the Depository, shall automatically pass to, vest in and belong to Landlord, without further action on the part of either party, free of any claim thereto by Tenant.
Section 20.3. Subject to the provisions of Article 31, if this lease is terminated under the provisions of Section 20.1 or in the event of the termination of this lease, or of re-entry, by or under any summary dispossess or other proceeding or action or any provision of law by reason of If an Event of Default hereunder on the part of Tenant; Tenant shall pay Landlord the fair rental value of any space in the Demised Premises occupied by Tenant or an Affiliate after such termination or re-entry, without thereby creating a landlord-tenant relationship have happened and Tenant shall be liable for no other damages. In the event of a breach or threatened breach by Tenant of any of the covenants or provisions hereof beyond the applicable grace period, if anycontinuing, Landlord shall have the right immediate right, whether or not the Term of this Lease shall have been terminated pursuant to seek an injunction Section 5.1(b), to re-enter and repossess the Premises and the right to invoke remove all persons and property therefrom by summary proceedings, ejectment, any remedy allowed at law other legal action or in equity 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, summary proceedings 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 any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and other remedies were not herein provided foron such conditions and for such uses as Landlord, in its absolute discretion, may determine. Mention in this lease Landlord may collect any rents payable by reason of any particular remedy such reletting. Landlord shall not preclude Landlord from be liable for any other remedyfailure to relet any of the Projects 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), in by operation of law or in equity. otherwise, and no re-entry, 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 hereby expressly waives any of its liabilities and obligations under this Lease, all rights of redemption granted by which shall survive such expiration, termination, re-entry, repossession, removal or under any present or future laws in reletting.
(f) In the event of Tenant being evicted the expiration or dispossessed for any cause, or in the event of Landlord obtaining possession earlier termination of the Demised Term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the violation by Tenant occurrence of any of the covenants and conditions of this lease.
Section 20.4. Tenant, for itself and any and all persons claiming through or under Tenant, including its creditors, upon the termination of this lease and of the term of this lease in accordance with the terms hereof, or in the event of entry of judgment for the recovery of the Possession of the Demised Premises in any action or proceeding, or if Landlord shall enter the Demised Premises by process of law hereby waives any right of redemption provided or permitted by any statute, law or decision now or hereafter enforce, and does hereby waive, surrender and give up all rights or privileges which it or they may or might have under and by reason of any present or future law or decision, to redeem the Demised Premises or for a continuation of this lease for the term of this lease hereby demised after having been dispossessed or ejected therefrom by process of law.
Section 20.5. Anything in this Article 20 to the contrary notwithstanding it is expressly understood that with respect to any Event of Default within the purview of Section 20.1.7 only, if such Event of Default cannot with the exercise of reasonable diligence, because of Unavoidable Delays or otherwise, be cured within the period of thirty (30) days provided for in said Section, Landlord shall not be entitled to serve a notice of termination upon Tenant, as provided in Section 20.1, if Tenant shall commence the curing of such Event of Default promptly after notice thereof from Landlord and shall thereafter proceed with reasonable diligence to complete the curing of such an Event of Default, subject to Unavoidable Delays, it being the intention hereof that in connection with any Event of Default within the purview of Section 20.1.7 only, which is not susceptible of being cured with due diligence within said thirty (30) days, the time of Tenant within which to cure the same shall be extended for such period as may be necessary to complete the same with reasonable diligence, subject to Unavoidable Delays. If at any time Landlord has reasonably determined that Tenant has not proceeded with reasonable diligence to complete the curing of such Event of Default, Landlord shall not be entitled to serve a notice of termination unless Landlord has notified Tenant of such determination and Tenant has failed to respond within five (5) business days after its receipt of such notice. Any dispute between Landlord and Tenant with respect to the subject matter hereof shall be submitted to arbitration pursuant to Article 44.
Section 20.6. The words "re-enter" and "re-entry" as used herein are not restricted to their technical legal meanings.
Section 20.7. If
(a) there shall be an Event of Default and (b) Tenant shall not pay to Landlord all Basic Rent, Additional Rent and other sums required to be attempting to cure such Event of Default with reasonable diligence, then Landlord may, but shall not be obligated to do so, after written notice to Tenant and without waiving or releasing Tenant from any obligations of Tenant in this lease contained, make such payment or perform such act which Tenant is obligated to perform under this lease in such manner and to such extent as may be necessary to cure such Event of Default, andpaid by Tenant, in exercising any such rights, pay any necessary and incidental costs and expenses, employ counsel and incur and pay reasonable attorneys' fees. All sums so paid by Landlord and all necessary costs and expenses of Landlord incidental thereto, each case together with interest thereon at the 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 Interest Rate in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current 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 liquidated and agreed current 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 liquidated and agreed current damages pursuant to Section 5.1(f), 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 and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1(f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages, and the liquidated and agreed final damages reasonably approximate to the actual damages Landlord would sustain on account of a Tenant Default or Event of Default, and the same are not intended to be a penalty), 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 making date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired Term of this Lease in the absence of such expenditures 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 “Treasury Rate”) 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 “Liquidated 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 MAI appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be deemed to be Additional Rent and, except as otherwise in this lease expressly provided, shall be payable to the Landlord twenty (20) days after demand, and if not promptly paid shall be added to any rent then due or thereafter becoming due under this lease, and Tenant covenants to pay any such sum or sums with interest as aforesaid and Landlord shall have (in addition to any other right or remedy of Landlord) the same rights and remedies in the event of the non-payment thereof by Tenant as in the case of default by binding on Tenant in the payment absence of manifest error. If any law shall limit the Fixed Annual Rentamount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Conditional Limitations; Default Provisions. Section 20.1. This lease (a) Any of the following occurrences and the term acts shall constitute an Event of Default under this lease are subject to the limitations that if, Lease:
(i) if Tenant at any time prior to or during the term of this lease, any one or more Lease (and regardless of the following events pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal, which have or might have the effect of preventing Tenant from complying with the terms of this Lease), shall (a) fail to make when due any payment of rent herein called an "required to be paid by Tenant, or (b) fail to make when due any payment of additional rent or any other sum herein required to be paid by Tenant, or (c) fail to observe or perform any of Tenant's other covenants, agreements or obligations hereunder, and if any such failure shall continue as to (b) above for 10 days after Lessor shall have given Tenant notice of such failure, or as to (c) above for 30 days after Lessor shall have given Tenant notice specifying such failure (or if such default cannot be cured by the payment of money and cannot, with due diligence, be cured within such 30 day period owing to causes beyond the control of Tenant, if Tenant shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such default with diligence and continuity), or
(ii) if any Event of Default"Default shall occur under the Agreement or the Indenture, or
(iii) if Tenant shall occurfile a petition in bankruptcy or for reorganization or for an arrangement pursuant to any present or future federal bankruptcy act or under any similar federal or state law, that is to say:
20.1.1. If Tenant or shall be adjudicated a bankrupt or insolvent or shall make an assignment for the benefit of its creditors; or
20.1.2. If creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant as a bankrupt or its reorganization under any petition present or future federal bankruptcy act or any similar federal or state law shall be filed against Tenant in any court, whether court and such petition or not pursuant to any statute of the United States or of any State, in any bankruptcy, reorganization, composition, extension, arrangement or insolvency proceeding, and if any such proceeding answer shall not be dismissed discharged or denied within ninety (90) 90 days after the institution filing thereof, or
(iv) if a receiver, trustee or liquidator of Tenant or of all or substantially all of the same; property of Tenant or of the leased premises shall be appointed in any proceeding brought by Tenant, or if any such petition receiver, trustee or liquidator shall be so filed by Tenant; appointed in any proceeding brought against Tenant and shall not be discharged within 90 days after such appointment or if Tenant shall consent to or acquiesce in such appointment, or
20.1.3. If(v) if at any time the leased premises shall have been abandoned or left substantially unoccupied for 30 consecutive days, or
(vi) if the interest of Tenant in the leased premises or part thereof shall be levied upon or attached in any proceeding, a receiver or trustee be appointed for all or any portion of Tenant's property, proceeding and such receivership or trusteeship process shall not be vacated or set aside discharged within ninety (90) 90 days after such levy or attachment.
(b) This Lease and the appointment of such receiver or trustee; or
20.1.4. If Tenant shall fail to pay any installment of the Fixed Annual Rent or any Additional Rent (term and estate hereby granted are subject to Sections 20.1.5 the limitation that whenever an event of default shall have happened and 20.1.6 below)be continuing, then Lessor shall have the right at its election, then or at any part thereof, when the same shall become due and payable, and time thereafter while any such failure event of default shall continue for ten (10) days after notice thereof from Landlord to Tenantand regardless of and notwithstanding the fact that Lessor has or may have some other remedy hereunder or by virtue hereof, providedin law or in equity, however, that Landlord shall be required to give Tenant written notice of failure Lessor's intention to pay only for terminate the first two (2) times Term on a date specified in any twelve (12) month periodsuch notice, and further provided that, with respect to upon the giving of any payment to be made to a Fee Mortgagee, (i) same shall be paid by Tenant at least two (2) business days prior to the expiration of the grace or cure period contained in such Fee Mortgage, (ii) proof of payment by facsimile transmission shall be sent to Landlord immediately upon payment by Tenant and (iii) no notice of failure to pay such payment to a Fee Mortgagee shall be given by Landlord to Tenant. A failure on the part of Tenant to pay such requisite amounts under a Fee Mortgage in accordance with this provision (unless Fee Mortgagee waives any resulting default or reinstates the Fee Mortgage following such default) shall constitute an Event of Default. Howevernotice, the failure on the part of Tenant to submit proof of payment thereof shall constitute an Event of Default under this lease only if (i) Tenant has received notice from Landlord that Landlord has not received said copies and (ii) Tenant has not forwarded said copies within ten (10) business days of receipt of said notice; or
20.1.5. If Tenant fails to comply with Section 34.2, unless the Fee Mortgagee agrees to waive all default interest and penalties ("Penalties") in respect of such failure to refinance the Fee Mortgage or extend the maturity date thereof or Tenant pays such Penalties to the Fee Mortgagee or escrows same with the Landlord's counsel (provided, however, if, thereafter, the Fee Mortgagee waives the Penalties or Tenant refinances the Fee Mortgage or extends the maturity date of the Fee Mortgage as required by Section 34.2, such escrow shall be released to Tenant); or
20.1.6. If Tenant fails to comply with Section 34.2, Term and the Fee Mortgagee commences a foreclosure proceeding or sends written notice to Landlord that it intends to commence a foreclosure proceeding (provided, however, if the Fee Mortgagee rescinds any notice of foreclosure or discontinues, or agrees in writing to discontinue, any foreclosure proceeding once it is commenced, such default estate hereby granted shall be deemed waived by the Landlord); or
20.1.7. If Tenant shall fail to perform or observe any other requirement of this lease (not hereinbefore in this Section 20.1 specifically referred to) on the part of Tenant to be performed or observed (other than the payment of a sum of money) expire and such failure shall continue for thirty (30) days after notice thereof from Landlord to Tenant (subject, however, to the provisions of Sections 20.5 and 24.4);
20.1.8. If the Optionee fails to pay the Option Payments when the same shall become due and payable, and such failure shall continue for ten (10) Business Days after notice thereof from Landlord to Tenant; Then, terminate upon the happening of any one or more of the aforementioned Events of Default, (subject to the reinstatement of the Fee Mortgage or a waiver by Fee Mortgagee of any default under the Fee Mortgage date so specified in said notice as provided in Section 20.1.4 above) Landlord may give to Tenant a notice (hereinafter called "notice of termination") terminating this lease at the expiration of five (5) business days from the date of Tenant's receipt of such notice of termination, fully and at the expiration of such five (5) business days, this lease and the term of this lease, as well as all of the right, title and interest of the Tenant hereunder, shall wholly cease and expire in the same manner completely and with the same force and effect as if the date of expiration of specified in such five (5) day period notice were the date originally specified herein hereinbefore fixed for the expiration of the term of this lease, and Tenant shall then quit and surrender the Demised Premises to Landlord, and Landlord or Landlord's agents or servants may, either by summary process or by any suitable action or proceeding at law, immediately or at any time thereafter re-enter the Demised Premises and remove therefrom Tenant, its agents, employees, servants, licensees, and any Subtenants and other personsTerm, and all or any rights of its or their property therefromTenant hereunder shall expire and terminate, and repossess and enjoy the Demised Premises, together with all additions, alterations and improvements thereto; but Tenant shall remain liable as hereinafter hereafter provided. In the event any such notice is given, subject Lessor shall have the immediate right of re-entry and possession of the leased premises and the right to remove all persons and property therefrom. Should Lessor elect to re-enter as herein provided or should Lessor take possession pursuant to legal proceedings or pursuant to any notice provided for by law, Lessor may from time to time relet the leased premises or any part thereof for such term or terms and at such rental or rentals and upon such terms and conditions as Lessor may deem advisable, with the right to make alterations in and repairs of the leased premises.
(c) In the event of any termination of the Term as in this SECTION 22 above provided or as otherwise permitted by law, Tenant shall then peaceably quit and surrender the leased premises to Lessor, and Lessor may, without further notice, enter upon, re-enter, possess and repossess the same by force, summary proceedings, ejectment or otherwise and again have, repossess and enjoy the same as if this Lease had not been made, and 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 leased premises, but shall forthwith quit and surrender the leased premises, and Lessor, at its option, shall forthwith, notwithstanding any other provisions of this Lease to the provisions contrary, be entitled to recover from Tenant (in lieu of Article 31all other claims for damages on account of such termination) as and for liquidated damages an amount equal to the excess of all the rents reserved hereunder for the unexpired portion of this Lease discounted to the then present worth over the fair rental value of the leased premises at the time of termination for such unexpired portion. The discount rate to be used in discounting reserve rents and in determining such fair rental value shall be the Prime Rate of ▇▇▇▇▇▇▇ Bank of Jacksonville, N.A. in effect at the time the calculation pursuant to this SUBSECTION (C) shall be required to be made. Nothing herein contained shall, however, limit or prejudice the right of Lessor, in any bankruptcy or 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 bankruptcy or reorganization or insolvency proceedings, or 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, equal to, or less than the amount of the excess referred to above.
Section 20.2. Subject to (d) If Lessor shall re-enter and obtain possession of the rights leased premises by reason of any Mortgageeor following an event of default, if this lease Lessor shall be terminated as provided in Section 20.1, all of have the right, titlewithout notice, estate and interest of Tenant (a) to repair or alter the leased premises in such manner as to Lessor may seem necessary or advisable so as to put the leased premises in good order and to make the Building and the Building Equipment, all changes, additions and alterations thereinsame rentable, and all renewals and replacements thereofshall have the right, (b) in and at Lessor's option to all rents, income, receipts, revenues, issues and profits issuing from relet the Demised Premises, leased premises or any part thereof, whether then accrued or and Tenant agrees to accrue, (c) pay to Lessor on demand all expenses incurred by Lessor in and to all insurance policies and all insurance monies premiums or awards paid or payable thereunderobtaining possession, and (d) in altering, repairing and putting the then entire undisbursed balance leased premises in good order and condition, and in reletting the same, including reasonable fees of attorneys, architects and other experts, and also any funds other reasonable and legitimate expenses or commissions, and Tenant further agrees to pay to Lessor upon each rental payment date following the date of such re-entry to and including the date set forth in SECTION 3 hereof for the hands expiration of the Depository, shall automatically pass to, vest Term in effect immediately prior to such re-entry the sums of money which would have been payable by Tenant as rent hereunder on said rent payment dates if Lessor had not re-entered and belong to Landlord, without further action on the part of either party, free of any claim thereto by Tenant.
Section 20.3. Subject to the provisions of Article 31, if this lease is terminated under the provisions of Section 20.1 or in the event resumed possession of the termination leased premises, deducting only the net amount of this lease, or of re-entry, by or under any summary dispossess or other proceeding or action or any provision of law by reason of an Event of Default hereunder on the part of Tenant; Tenant shall pay Landlord the fair rental value of any space in the Demised Premises occupied by Tenant or an Affiliate after such termination or re-entry, without thereby creating a landlord-tenant relationship and Tenant shall be liable for no other damages. In the event of a breach or threatened breach by Tenant of any of the covenants or provisions hereof beyond the applicable grace periodrent, if any, Landlord which Lessor shall have actually receive (after deducting from the right to seek an injunction gross receipts the expenses, costs and the right to invoke any remedy allowed at law or in equity as if re-entry, summary proceedings and other remedies were not herein provided for. Mention in this lease payments of any particular remedy shall not preclude Landlord from any other remedy, in law or in equity. Tenant hereby expressly waives any and all rights every kind of redemption granted by or under any present or future laws in the event of Tenant being evicted or dispossessed for any cause, or in the event of Landlord obtaining possession of the Demised Premises by reason of the violation by Tenant of any of the covenants and conditions of this lease.
Section 20.4. Tenant, for itself and any and all persons claiming through or under Tenant, including its creditors, upon the termination of this lease and of the term of this lease Lessor which in accordance with the terms hereof, or of this Lease would have been borne by Tenant) in the event meantime from and by any reletting of entry the leased premises, and 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 judgment Lessor aforesaid, as well as for any defi ciency aforesaid, and Lessor shall have the right from time to time to begin and maintain successive actions or other legal proceedings against Tenant for the recovery of the Possession of the Demised Premises in any action such deficiency or proceeding, or if Landlord shall enter the Demised Premises by process of law hereby waives any right of redemption provided or permitted by any statute, law or decision now or hereafter enforce, and does hereby waive, surrender and give up all rights or privileges which it or they may or might have under and by reason of any present or future law or decision, to redeem the Demised Premises damages or for a continuation sum equal to any installment or installments of this lease for rent or additional rent and any other sums payable hereunder, and to recover the term same upon the liability of this lease hereby demised after having been dispossessed or ejected therefrom by process of law.
Section 20.5. Anything in this Article 20 to the contrary notwithstanding Tenant herein provided, which liability it is expressly understood that with respect covenanted shall survive the issuance of any action to secure possession of the leased premises. Nothing herein contained shall be deemed to require Lessor to wait to begin 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.
(e) If under any Event of Default within the purview preceding provisions of Section 20.1.7 onlythis SECTION 22, if such Event of Default cannot with the exercise of reasonable diligence, because of Unavoidable Delays or otherwise, be cured within the period of thirty (30) days provided for in said Section, Landlord Lessor shall not be entitled to serve give Tenant a notice of termination upon Tenantof the Term, as provided in Section 20.1Lessor, if without giving such notice of termination, and notwithstanding the continuance of the Term and notwithstanding that Lessor may have re-entered or taken possession of the leased premises pursuant to this SECTION 22, shall have, to the extent permitted by law, all the rights, powers and remedies given to Lessor by the preceding provisions of this SECTION 22, and Tenant shall commence have the curing obligations imposed upon it by such provisions. No such re-entry or taking of possession of the leased premises by Lessor shall be construed as an election on Lessor's part to terminate the Term unless a written notice of such Event intention be given to Tenant or unless such termination be decreed by a court of Default promptly after notice thereof from Landlord and shall thereafter proceed with reasonable diligence to complete the curing of such Event of Default, subject to Unavoidable Delays, it being the intention hereof that in connection with any Event of Default within the purview of Section 20.1.7 only, which is not susceptible of being cured with due diligence within said thirty (30) days, the time of Tenant within which to cure the same shall be extended for such period as may be necessary to complete the same with reasonable diligence, subject to Unavoidable Delays. If at any time Landlord has reasonably determined that Tenant has not proceeded with reasonable diligence to complete the curing of such Event of Default, Landlord shall not be entitled to serve a notice of termination unless Landlord has notified Tenant of such determination and Tenant has failed to respond within five (5) business days after its receipt of such notice. Any dispute between Landlord and Tenant with respect to the subject matter hereof shall be submitted to arbitration pursuant to Article 44competent jurisdiction.
Section 20.6. (f) The words "enter," "re-enter" and or "re-entry" as used herein are not restricted to their technical legal meaningsmeaning.
Section 20.7. If
(ag) there No right or remedy herein conferred upon or reserved to Lessor is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be an Event of Default cumulative and (b) Tenant shall not be attempting to cure such Event of Default with reasonable diligence, then Landlord may, but shall not be obligated to do so, after written notice to Tenant and without waiving or releasing Tenant from any obligations of Tenant in this lease contained, make such payment or perform such act which Tenant is obligated to perform under this lease in such manner and to such extent as may be necessary to cure such Event of Default, and, in exercising any such rights, pay any necessary and incidental costs and expenses, employ counsel and incur and pay reasonable attorneys' fees. All sums so paid by Landlord and all necessary costs and expenses of Landlord incidental thereto, together with interest thereon at the Lease Interest Rate from the date of the making of such expenditures by Landlord, shall be deemed to be Additional Rent and, except as otherwise in this lease expressly provided, shall be payable to the Landlord twenty (20) days after demand, and if not promptly paid shall be added to any rent then due or thereafter becoming due under this lease, and Tenant covenants to pay any such sum or sums with interest as aforesaid and Landlord shall have (in addition to any other right or remedy given hereunder, or now or hereafter existing at law or in equity or by statute. The failure of LandlordLessor to insist at any time upon the strict performance of any of the covenants or agreements or to exercise any option, right, power or remedy contained in this Lease shall not be construed as a waiver or a relinquishment thereof for the future. The receipt by Lessor of any rent, any additional rent or any other sum payable hereunder with knowledge of the breach of any covenant or agreement contained in this Lease shall not be deemed a waiver of such breach, and no waiver by Lessor of any provision of this Lease shall be deemed to have been made unless expressed in writing and signed by Lessor. In addition to other remedies provided in this Lease, Lessor shall be entitled, to the extent permitted by law, to injunctive relief in case of the violation, or attempted or threatened violation, of any of the covenants, agreements, conditions or provisions of this Lease or to a decree compelling performance of any of the covenants, agreements, conditions or provisions of this Lease, or to any other remedy allowed to Lessor at law or in equity.
(h) In the same rights and remedies event either Lessor or Tenant shall be in default in the event performance of any obligations under this Lease and an action shall be brought for the non-payment thereof by Tenant as enforcement thereof, the prevailing party shall be entitled to reimbursement of all the expenses incurred in the case of default by Tenant in the payment of the Fixed Annual Rentconnection therewith including reasonable attorneys' fees.
Appears in 1 contract
Conditional Limitations; Default Provisions. Section 20.1. This lease (a) Any of the following occurrences and the term acts shall constitute an Event of Default under this lease are subject to the limitations that if, Lease:
(i) if Tenant at any time prior to or during the term of this lease, any one or more Lease (and regardless of the following events pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal, which have or might have the effect of preventing Tenant from complying with the terms of this Lease), shall (a) fail to make when due any payment of rent herein called an "required to be paid by Tenant, or (b) fail to make when due any payment of additional rent or any other sum herein required to be paid by Tenant, or (c) fail to observe or perform any of Tenant's other covenants, agreements or obligations hereunder, and if any such failure shall continue as to (b) above for 10 days after Lessor shall have given Tenant notice of such failure, or as to (c) above for 30 days after Lessor shall have given Tenant notice specifying such failure (or if such default cannot be cured by the payment of money and cannot, with due diligence, be cured within such 30 day period owing to causes beyond the control of Tenant, if Tenant shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such default with diligence and continuity), or
(ii) if any Event of Default"Default shall occur under the Mortgage or any of the Mortgage Documents as a result of any act or omission of Tenant, or
(iii) if Tenant or ATC shall occurfile a petition in bankruptcy or for reorganization or for an arrangement pursuant to any present or future federal bankruptcy act or under any similar federal or state law, that is to say:
20.1.1. If Tenant or shall be adjudicated a bankrupt or insolvent or shall make an assignment for the benefit of its creditors; or
20.1.2. If creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or ATC as a bankrupt or its reorganization under any petition present or future federal bankruptcy act or any similar federal or state law shall be filed against Tenant in any court, whether court and such petition or not pursuant to any statute of the United States or of any State, in any bankruptcy, reorganization, composition, extension, arrangement or insolvency proceeding, and if any such proceeding answer shall not be dismissed discharged or denied within ninety (90) 90 days after the institution filing thereof, or
(iv) if a receiver, trustee or liquidator of Tenant or ATC or of all or substantially all of the same; property of Tenant or ATC or of the leased premises shall be appointed in any proceeding brought by Tenant or ATC, or if any such petition receiver, trustee or liquidator shall be so filed by Tenant; appointed in any proceeding brought against Tenant or ATC and shall not be discharged within 90 days after such appointment or if Tenant or ATC shall consent to or acquiesce in such appointment, or
20.1.3. If(v) if at any time the leased premises shall have been abandoned or left substantially unoccupied for 30 consecutive days, or
(vi) if the interest of Tenant in the leased premises or part thereof shall be levied upon or attached in any proceeding, a receiver or trustee be appointed for all or any portion of Tenant's property, proceeding and such receivership or trusteeship process shall not be vacated or set aside discharged within ninety (90) 90 days after such levy or attachment.
(b) This Lease and the appointment of such receiver or trustee; or
20.1.4. If Tenant shall fail to pay any installment of the Fixed Annual Rent or any Additional Rent (Term and estate hereby granted are subject to Sections 20.1.5 the limitation that whenever an event of default shall have happened and 20.1.6 below)be continuing, then Lessor shall have the right at its election, then or at any part thereof, when the same shall become due and payable, and time thereafter while any such failure event of default shall continue for ten (10) days after notice thereof from Landlord to Tenantand regardless of and notwithstanding the fact that Lessor has or may have some other remedy hereunder or by virtue hereof, providedin law or in equity, however, that Landlord shall be required to give Tenant written notice of failure Lessor's intention to pay only for terminate the first two (2) times Term on a date specified in any twelve (12) month periodsuch notice, and further provided that, with respect to upon the giving of any payment to be made to a Fee Mortgagee, (i) same shall be paid by Tenant at least two (2) business days prior to the expiration of the grace or cure period contained in such Fee Mortgage, (ii) proof of payment by facsimile transmission shall be sent to Landlord immediately upon payment by Tenant and (iii) no notice of failure to pay such payment to a Fee Mortgagee shall be given by Landlord to Tenant. A failure on the part of Tenant to pay such requisite amounts under a Fee Mortgage in accordance with this provision (unless Fee Mortgagee waives any resulting default or reinstates the Fee Mortgage following such default) shall constitute an Event of Default. Howevernotice, the failure on the part of Tenant to submit proof of payment thereof shall constitute an Event of Default under this lease only if (i) Tenant has received notice from Landlord that Landlord has not received said copies and (ii) Tenant has not forwarded said copies within ten (10) business days of receipt of said notice; or
20.1.5. If Tenant fails to comply with Section 34.2, unless the Fee Mortgagee agrees to waive all default interest and penalties ("Penalties") in respect of such failure to refinance the Fee Mortgage or extend the maturity date thereof or Tenant pays such Penalties to the Fee Mortgagee or escrows same with the Landlord's counsel (provided, however, if, thereafter, the Fee Mortgagee waives the Penalties or Tenant refinances the Fee Mortgage or extends the maturity date of the Fee Mortgage as required by Section 34.2, such escrow shall be released to Tenant); or
20.1.6. If Tenant fails to comply with Section 34.2, Term and the Fee Mortgagee commences a foreclosure proceeding or sends written notice to Landlord that it intends to commence a foreclosure proceeding (provided, however, if the Fee Mortgagee rescinds any notice of foreclosure or discontinues, or agrees in writing to discontinue, any foreclosure proceeding once it is commenced, such default estate hereby granted shall be deemed waived by the Landlord); or
20.1.7. If Tenant shall fail to perform or observe any other requirement of this lease (not hereinbefore in this Section 20.1 specifically referred to) on the part of Tenant to be performed or observed (other than the payment of a sum of money) expire and such failure shall continue for thirty (30) days after notice thereof from Landlord to Tenant (subject, however, to the provisions of Sections 20.5 and 24.4);
20.1.8. If the Optionee fails to pay the Option Payments when the same shall become due and payable, and such failure shall continue for ten (10) Business Days after notice thereof from Landlord to Tenant; Then, terminate upon the happening of any one or more of the aforementioned Events of Default, (subject to the reinstatement of the Fee Mortgage or a waiver by Fee Mortgagee of any default under the Fee Mortgage date so specified in said notice as provided in Section 20.1.4 above) Landlord may give to Tenant a notice (hereinafter called "notice of termination") terminating this lease at the expiration of five (5) business days from the date of Tenant's receipt of such notice of termination, fully and at the expiration of such five (5) business days, this lease and the term of this lease, as well as all of the right, title and interest of the Tenant hereunder, shall wholly cease and expire in the same manner completely and with the same force and effect as if the date of expiration of specified in such five (5) day period notice were the date originally specified herein hereinbefore fixed for the expiration of the term of this lease, and Tenant shall then quit and surrender the Demised Premises to Landlord, and Landlord or Landlord's agents or servants may, either by summary process or by any suitable action or proceeding at law, immediately or at any time thereafter re-enter the Demised Premises and remove therefrom Tenant, its agents, employees, servants, licensees, and any Subtenants and other personsTerm, and all or any rights of its or their property therefromTenant hereunder shall expire and terminate, and repossess and enjoy the Demised Premises, together with all additions, alterations and improvements thereto; but Tenant shall remain liable as hereinafter hereafter provided. In the event any such notice is given, subject Lessor shall have the immediate right of re-entry and possession of the leased premises and the right to remove all persons and property therefrom. Should Lessor elect to re-enter as herein provided or should Lessor take possession pursuant to legal proceedings or pursuant to any notice provided for by law, Lessor may from time to time relet the leased premises or any part thereof for such term or terms and at such rental or rentals and upon such terms and conditions as Lessor may deem advisable, with the right to make alterations in and repairs of the leased premises.
(c) In the event of any termination of the Term as in this SECTION 22 above provided or as otherwise permitted by law, Tenant shall then peaceably quit and surrender the leased premises to Lessor, and Lessor may, without further notice, enter upon, re-enter, possess and repossess the same by force, summary proceedings, ejectment or otherwise and again have, repossess and enjoy the same as if this Lease had not been made, and 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 leased premises, but shall forthwith quit and surrender the leased premises, and Lessor, at its option, shall forthwith, notwithstanding any other provisions of this Lease to the provisions contrary, be entitled to recover from Tenant (in lieu of Article 31all other claims for damages on account of such termination) as and for liquidated damages an amount equal to the excess of all the rents reserved hereunder for the unexpired portion of this Lease discounted to the then present worth over the fair rental value of the leased premises at the time of termination for such unexpired portion. The discount rate to be used in discounting reserve rents and in determining such fair rental value shall be the Prime Rate of Bank of America, N.A. in effect at the time the calculation pursuant to this SUBSECTION (C) shall be required to be made. Nothing herein contained shall, however, limit or prejudice the right of Lessor, in any bankruptcy or 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 bankruptcy or reorganization or insolvency proceedings, or 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, equal to, or less than the amount of the excess referred to above.
Section 20.2. Subject to (d) If Lessor shall re-enter and obtain possession of the rights leased premises by reason of any Mortgageeor following an event of default, if this lease Lessor shall be terminated as provided in Section 20.1, all of have the right, titlewithout notice, estate and interest of Tenant (a) to repair or alter the leased premises in such manner as to Lessor may seem necessary or advisable so as to put the leased premises in good order and to make the Building and the Building Equipment, all changes, additions and alterations thereinsame rentable, and all renewals and replacements thereofshall have the right, (b) in and at Lessor's option to all rents, income, receipts, revenues, issues and profits issuing from relet the Demised Premises, leased premises or any part thereof, whether then accrued or and Tenant agrees to accrue, (c) pay to Lessor on demand all expenses incurred by Lessor in and to all insurance policies and all insurance monies premiums or awards paid or payable thereunderobtaining possession, and (d) in altering, repairing and putting the then entire undisbursed balance leased premises in good order and condition, and in reletting the same, including reasonable fees of attorneys, architects and other experts, and also any funds other reasonable and legitimate expenses or commissions, and Tenant further agrees to pay to Lessor upon each rental payment date following the date of such re-entry to and including the date set forth in SECTION 3 hereof for the hands expiration of the Depository, shall automatically pass to, vest Term in effect immediately prior to such re-entry the sums of money which would have been payable by Tenant as rent hereunder on said rent payment dates if Lessor had not re-entered and belong to Landlord, without further action on the part of either party, free of any claim thereto by Tenant.
Section 20.3. Subject to the provisions of Article 31, if this lease is terminated under the provisions of Section 20.1 or in the event resumed possession of the termination leased premises, deducting only the net amount of this lease, or of re-entry, by or under any summary dispossess or other proceeding or action or any provision of law by reason of an Event of Default hereunder on the part of Tenant; Tenant shall pay Landlord the fair rental value of any space in the Demised Premises occupied by Tenant or an Affiliate after such termination or re-entry, without thereby creating a landlord-tenant relationship and Tenant shall be liable for no other damages. In the event of a breach or threatened breach by Tenant of any of the covenants or provisions hereof beyond the applicable grace periodrent, if any, Landlord which Lessor shall have actually receive (after deducting from the right to seek an injunction gross receipts the expenses, costs and the right to invoke any remedy allowed at law or in equity as if re-entry, summary proceedings and other remedies were not herein provided for. Mention in this lease payments of any particular remedy shall not preclude Landlord from any other remedy, in law or in equity. Tenant hereby expressly waives any and all rights every kind of redemption granted by or under any present or future laws in the event of Tenant being evicted or dispossessed for any cause, or in the event of Landlord obtaining possession of the Demised Premises by reason of the violation by Tenant of any of the covenants and conditions of this lease.
Section 20.4. Tenant, for itself and any and all persons claiming through or under Tenant, including its creditors, upon the termination of this lease and of the term of this lease Lessor which in accordance with the terms hereof, or of this Lease would have been borne by Tenant) in the event meantime from and by any reletting of entry the leased premises, and 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 judgment Lessor aforesaid, as well as for any deficiency aforesaid, and Lessor shall have the right from time to time to begin and maintain successive actions or other legal proceedings against Tenant for the recovery of the Possession of the Demised Premises in any action such deficiency or proceeding, or if Landlord shall enter the Demised Premises by process of law hereby waives any right of redemption provided or permitted by any statute, law or decision now or hereafter enforce, and does hereby waive, surrender and give up all rights or privileges which it or they may or might have under and by reason of any present or future law or decision, to redeem the Demised Premises damages or for a continuation sum equal to any installment or installments of this lease for rent or additional rent and any other sums payable hereunder, and to recover the term same upon the liability of this lease hereby demised after having been dispossessed or ejected therefrom by process of law.
Section 20.5. Anything in this Article 20 to the contrary notwithstanding Tenant herein provided, which liability it is expressly understood that with respect covenanted shall survive the issuance of any action to secure possession of the leased premises. Nothing herein contained shall be deemed to require Lessor to wait to begin 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.
(e) If under any Event of Default within the purview preceding provisions of Section 20.1.7 onlythis SECTION 22, if such Event of Default cannot with the exercise of reasonable diligence, because of Unavoidable Delays or otherwise, be cured within the period of thirty (30) days provided for in said Section, Landlord Lessor shall not be entitled to serve give Tenant a notice of termination upon Tenantof the Term, as provided in Section 20.1Lessor, if without giving such notice of termination, and notwithstanding the continuance of the Term and notwithstanding that Lessor may have re-entered or taken possession of the leased premises pursuant to this SECTION 22, shall have, to the extent permitted by law, all the rights, powers and remedies given to Lessor by the preceding provisions of this SECTION 22, and Tenant shall commence have the curing obligations imposed upon it by such provisions. No such re-entry or taking of possession of the leased premises by Lessor shall be construed as an election on Lessor's part to terminate the Term unless a written notice of such Event intention be given to Tenant or unless such termination be decreed by a court of Default promptly after notice thereof from Landlord and shall thereafter proceed with reasonable diligence to complete the curing of such Event of Default, subject to Unavoidable Delays, it being the intention hereof that in connection with any Event of Default within the purview of Section 20.1.7 only, which is not susceptible of being cured with due diligence within said thirty (30) days, the time of Tenant within which to cure the same shall be extended for such period as may be necessary to complete the same with reasonable diligence, subject to Unavoidable Delays. If at any time Landlord has reasonably determined that Tenant has not proceeded with reasonable diligence to complete the curing of such Event of Default, Landlord shall not be entitled to serve a notice of termination unless Landlord has notified Tenant of such determination and Tenant has failed to respond within five (5) business days after its receipt of such notice. Any dispute between Landlord and Tenant with respect to the subject matter hereof shall be submitted to arbitration pursuant to Article 44competent jurisdiction.
Section 20.6. (f) The words "enter," "re-enter" and or "re-entry" as used herein are not restricted to their technical legal meaningsmeaning.
Section 20.7. If
(ag) there No right or remedy herein conferred upon or reserved to Lessor is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be an Event of Default cumulative and (b) Tenant shall not be attempting to cure such Event of Default with reasonable diligence, then Landlord may, but shall not be obligated to do so, after written notice to Tenant and without waiving or releasing Tenant from any obligations of Tenant in this lease contained, make such payment or perform such act which Tenant is obligated to perform under this lease in such manner and to such extent as may be necessary to cure such Event of Default, and, in exercising any such rights, pay any necessary and incidental costs and expenses, employ counsel and incur and pay reasonable attorneys' fees. All sums so paid by Landlord and all necessary costs and expenses of Landlord incidental thereto, together with interest thereon at the Lease Interest Rate from the date of the making of such expenditures by Landlord, shall be deemed to be Additional Rent and, except as otherwise in this lease expressly provided, shall be payable to the Landlord twenty (20) days after demand, and if not promptly paid shall be added to any rent then due or thereafter becoming due under this lease, and Tenant covenants to pay any such sum or sums with interest as aforesaid and Landlord shall have (in addition to any other right or remedy given hereunder, or now or hereafter existing at law or in equity or by statute. The failure of LandlordLessor to insist at any time upon the strict performance of any of the covenants or agreements or to exercise any option, right, power or remedy contained in this Lease shall not be construed as a waiver or a relinquishment thereof for the future. The receipt by Lessor of any rent, any additional rent or any other sum payable hereunder with knowledge of the breach of any covenant or agreement contained in this Lease shall not be deemed a waiver of such breach, and no waiver by Lessor of any provision of this Lease shall be deemed to have been made unless expressed in writing and signed by Lessor. In addition to other remedies provided in this Lease, Lessor shall be entitled, to the extent permitted by law, to injunctive relief in case of the violation, or attempted or threatened violation, of any of the covenants, agreements, conditions or provisions of this Lease or to a decree compelling performance of any of the covenants, agreements, conditions or provisions of this Lease, or to any other remedy allowed to Lessor at law or in equity.
(h) In the same rights and remedies event either Lessor or Tenant shall be in default in the event performance of any obligations under this Lease and an action shall be brought for the non-payment thereof by Tenant as enforcement thereof, the prevailing party shall be entitled to reimbursement of all the expenses incurred in the case of default by Tenant in the payment of the Fixed Annual Rentconnection therewith, including reasonable attorneys' fees.
Appears in 1 contract
Conditional Limitations; Default Provisions. Section 20.1. This lease and the term of this lease are subject to the limitations that if, at any time prior to or during the term of this lease, any one or more (a) Any of the following events (herein called occurrences or acts shall constitute an "Event of Default") shall occur, that is to say" under this Lease:
20.1.1. If (i) if Tenant shall make an assignment for the benefit of its creditors; or
20.1.2. If any petition shall be filed against Tenant in any court, whether or not pursuant to any statute of the United States or of any State, in any bankruptcy, reorganization, composition, extension, arrangement or insolvency proceeding, and if any such proceeding shall not be dismissed within ninety (901) days after the institution of the same; or if any such petition shall be so filed by Tenant; or
20.1.3. If, in any proceeding, a receiver or trustee be appointed for all or any portion of Tenant's property, and such receivership or trusteeship shall not be vacated or set aside within ninety (90) days after the appointment of such receiver or trustee; or
20.1.4. If Tenant shall fail to pay any installment of the Fixed Annual Basic Rent, Additional Rent or any Additional Rent (subject other sum as and when required to Sections 20.1.5 and 20.1.6 below), or any part thereof, when the same shall become due and payablebe paid by Tenant under this Lease, and such failure shall continue for ten (10) days after notice thereof from Landlord to Tenant, provided, however, that Landlord shall be required to give Tenant notice of failure to pay only for the first two (2) times in any twelve Business Days (12) month period, and further provided that, with respect to Basic Rent or 5 Business Days (with respect to Additional Rent or any other sum) after delivery of written notice from Landlord (or Lender) to Tenant that such payment to be made to a Fee Mortgageewas not received when due, (i) same shall be paid by Tenant at least two or (2) business days prior to the expiration of the grace or cure period contained in such Fee Mortgage, (ii) proof of payment by facsimile transmission shall be sent to Landlord immediately upon payment by Tenant and (iii) no notice of failure to pay such payment to a Fee Mortgagee shall be given by Landlord to Tenant. A failure on the part of Tenant to pay such requisite amounts under a Fee Mortgage in accordance with this provision (unless Fee Mortgagee waives any resulting default or reinstates the Fee Mortgage following such default) shall constitute an Event of Default. However, the failure on the part of Tenant to submit proof of payment thereof shall constitute an Event of Default under this lease only if (i) Tenant has received notice from Landlord that Landlord has not received said copies and (ii) Tenant has not forwarded said copies within ten (10) business days of receipt of said notice; or
20.1.5. If Tenant fails to comply with Section 34.2, unless the Fee Mortgagee agrees to waive all default interest and penalties ("Penalties") in respect of such failure to refinance the Fee Mortgage or extend the maturity date thereof or Tenant pays such Penalties to the Fee Mortgagee or escrows same with the Landlord's counsel (provided, however, if, thereafter, the Fee Mortgagee waives the Penalties or Tenant refinances the Fee Mortgage or extends the maturity date of the Fee Mortgage as required by Section 34.2, such escrow shall be released to Tenant); or
20.1.6. If Tenant fails to comply with Section 34.2, and the Fee Mortgagee commences a foreclosure proceeding or sends written notice to Landlord that it intends to commence a foreclosure proceeding (provided, however, if the Fee Mortgagee rescinds any notice of foreclosure or discontinues, or agrees in writing to discontinue, any foreclosure proceeding once it is commenced, such default shall be deemed waived by the Landlord); or
20.1.7. If Tenant shall fail to observe or perform or observe any other requirement provision of this lease (not hereinbefore in this Section 20.1 specifically referred to) on the part of Tenant to be performed or observed Lease (other than the payment those referred to in clauses (vii) and (ix) of a sum of moneythis Section 5.1(a)) and such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant of such failure (subjectprovided, howeverthat 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 the provisions of Sections 20.5 and 24.4);
20.1.8. If the Optionee fails to pay the Option Payments when cure the same shall become due and payablethereafter prosecute the curing thereof with diligence, and the time within which such failure may be cured shall continue be extended for ten such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred eighty (10180) Business Days after notice thereof from Landlord to Tenant; Then, upon the happening of any one or more of the aforementioned Events of Default, (subject to the reinstatement of the Fee Mortgage or a waiver by Fee Mortgagee of any default under the Fee Mortgage as provided in Section 20.1.4 above) Landlord may give to Tenant a notice (hereinafter called "notice of termination") terminating this lease at the expiration of five (5) business days from the date of such failure; or;
(ii) if any representation or warranty of Tenant, Seller or Guarantor set forth herein, in the Contract of Sale or in any 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 time when the same shall have been made; or
(iii) if Tenant or any guarantor of Tenant's receipt obligations under this Lease (a "Guarantor") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a 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 such notice Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of termination, and at the expiration Tenant or any Guarantor or of such five (5) business days, this lease and the term of this lease, as well as all or substantially all of the rightassets of Tenant or such Guarantor or of any Project or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, title or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and interest shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if any Project shall have been left unoccupied and unattended for a period of thirty (30) days (other than as permitted by Section 1.2(b)); or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Section 4.1(a), 4.1(b) or 4.1(d) or Schedule K of this Lease; or
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 of this Lease or the letter of even date herewith from Tenant to Landlord relating to insurance; or
(x) if Tenant shall default under Sections 7.2 and/or 7.3 of this Lease.
(xi) Any event that but for the giving of notice or the passage of time would be an Event of Default shall be a "Default."
(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 shall have the right to give Tenant notice of Landlord's termination of the Tenant hereunderTerm of this Lease. Upon the giving of such notice, the Term of this Lease and the estate hereby granted shall wholly cease expire and expire in the same manner terminate on such date as fully and completely and with the same force and effect as if the such date of expiration of such five (5) day period were the date originally specified herein fixed for the expiration of the term Term of this lease, and Tenant shall then quit and surrender the Demised Premises to Landlord, and Landlord or Landlord's agents or servants may, either by summary process or by any suitable action or proceeding at law, immediately or at any time thereafter re-enter the Demised Premises and remove therefrom Tenant, its agents, employees, servants, licensees, and any Subtenants and other personsLease, and all or any rights of its or their property therefromTenant under this Lease shall expire and terminate, and repossess and enjoy the Demised Premises, together with all additions, alterations and improvements thereto; but Tenant shall remain liable as hereinafter provided, subject to the provisions of Article 31.
Section 20.2. Subject to the rights of any Mortgagee, if this lease shall be terminated as provided in Section 20.1, all of the right, title, estate and interest of Tenant (a) in and to the Building and the Building Equipment, all changes, additions and alterations therein, and all renewals and replacements thereof, (b) in and to all rents, income, receipts, revenues, issues and profits issuing from the Demised Premises, or any part thereof, whether then accrued or to accrue, (c) in and to all insurance policies and all insurance monies premiums or awards paid or payable thereunder, and (d) in the then entire undisbursed balance of any funds in the hands of the Depository, shall automatically pass to, vest in and belong to Landlord, without further action on the part of either party, free of any claim thereto by Tenant.
Section 20.3. Subject to the provisions of Article 31, if this lease is terminated under the provisions of Section 20.1 or in the event of the termination of this lease, or of re-entry, by or under any summary dispossess or other proceeding or action or any provision of law by reason of If an Event of Default hereunder on the part of Tenant; Tenant shall pay Landlord the fair rental value of any space in the Demised Premises occupied by Tenant or an Affiliate after such termination or re-entry, without thereby creating a landlord-tenant relationship have happened and Tenant shall be liable for no other damages. In the event of a breach or threatened breach by Tenant of any of the covenants or provisions hereof beyond the applicable grace period, if anycontinuing, Landlord shall have the right immediate right, whether or not the Term of this Lease shall have been terminated pursuant to seek an injunction Section 5.1(b), to re-enter and repossess the Premises and the right to invoke remove all persons and property therefrom by summary proceedings, ejectment, any remedy allowed at law other legal action or in equity 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, summary proceedings 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 any or all of the Projects for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and other remedies were not herein provided foron such conditions and for such uses as Landlord, in its absolute discretion, may determine. Mention in this lease Landlord may collect any rents payable by reason of any particular remedy such reletting. Landlord shall not preclude Landlord from be liable for any other remedyfailure to relet any of the Projects 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), in by operation of law or in equity. otherwise, and no re-entry, 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 hereby expressly waives any of its liabilities and obligations under this Lease, all rights of redemption granted by which shall survive such expiration, termination, re-entry, repossession, removal or under any present or future laws in reletting.
(f) In the event of Tenant being evicted the expiration or dispossessed for any cause, or in the event of Landlord obtaining possession earlier termination of the Demised Term of this Lease or re-entry or repossession of the Premises or removal of persons or property therefrom by reason of the violation by Tenant occurrence of any of the covenants and conditions of this lease.
Section 20.4. Tenant, for itself and any and all persons claiming through or under Tenant, including its creditors, upon the termination of this lease and of the term of this lease in accordance with the terms hereof, or in the event of entry of judgment for the recovery of the Possession of the Demised Premises in any action or proceeding, or if Landlord shall enter the Demised Premises by process of law hereby waives any right of redemption provided or permitted by any statute, law or decision now or hereafter enforce, and does hereby waive, surrender and give up all rights or privileges which it or they may or might have under and by reason of any present or future law or decision, to redeem the Demised Premises or for a continuation of this lease for the term of this lease hereby demised after having been dispossessed or ejected therefrom by process of law.
Section 20.5. Anything in this Article 20 to the contrary notwithstanding it is expressly understood that with respect to any Event of Default within the purview of Section 20.1.7 only, if such Event of Default cannot with the exercise of reasonable diligence, because of Unavoidable Delays or otherwise, be cured within the period of thirty (30) days provided for in said Section, Landlord shall not be entitled to serve a notice of termination upon Tenant, as provided in Section 20.1, if Tenant shall commence the curing of such Event of Default promptly after notice thereof from Landlord and shall thereafter proceed with reasonable diligence to complete the curing of such an Event of Default, subject to Unavoidable Delays, it being the intention hereof that in connection with any Event of Default within the purview of Section 20.1.7 only, which is not susceptible of being cured with due diligence within said thirty (30) days, the time of Tenant within which to cure the same shall be extended for such period as may be necessary to complete the same with reasonable diligence, subject to Unavoidable Delays. If at any time Landlord has reasonably determined that Tenant has not proceeded with reasonable diligence to complete the curing of such Event of Default, Landlord shall not be entitled to serve a notice of termination unless Landlord has notified Tenant of such determination and Tenant has failed to respond within five (5) business days after its receipt of such notice. Any dispute between Landlord and Tenant with respect to the subject matter hereof shall be submitted to arbitration pursuant to Article 44.
Section 20.6. The words "re-enter" and "re-entry" as used herein are not restricted to their technical legal meanings.
Section 20.7. If
(a) there shall be an Event of Default and (b) Tenant shall not pay to Landlord all Basic Rent, Additional Rent and other sums required to be attempting to cure such Event of Default with reasonable diligence, then Landlord may, but shall not be obligated to do so, after written notice to Tenant and without waiving or releasing Tenant from any obligations of Tenant in this lease contained, make such payment or perform such act which Tenant is obligated to perform under this lease in such manner and to such extent as may be necessary to cure such Event of Default, andpaid by Tenant, in exercising any such rights, pay any necessary and incidental costs and expenses, employ counsel and incur and pay reasonable attorneys' fees. All sums so paid by Landlord and all necessary costs and expenses of Landlord incidental thereto, each case together with interest thereon at the 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 Interest Rate in the absence of such expiration, termination, re-entry, repossession or removal and whether or not any Projects shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current 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 liquidated and agreed current 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 liquidated and agreed current damages pursuant to Section 5.1(f), 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 and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1(f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages, and the liquidated and agreed final damages reasonably approximate to the actual damages Landlord would sustain on account of a Tenant Default or Event of Default, and the same are not intended to be a penalty), 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 making date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired Term of this Lease in the absence of such expenditures 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 "Treasury Rate") 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 "Liquidated 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 MAI appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be deemed to be Additional Rent and, except as otherwise in this lease expressly provided, shall be payable to the Landlord twenty (20) days after demand, and if not promptly paid shall be added to any rent then due or thereafter becoming due under this lease, and Tenant covenants to pay any such sum or sums with interest as aforesaid and Landlord shall have (in addition to any other right or remedy of Landlord) the same rights and remedies in the event of the non-payment thereof by Tenant as in the case of default by binding on Tenant in the payment absence of manifest error. If any law shall limit the Fixed Annual Rentamount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
Appears in 1 contract
Conditional Limitations; Default Provisions. Section 20.118.1. This lease and the term of this lease are subject to the limitations that if, at any time prior to or during the term of this lease, any one or more Any of the following events (herein called an "Event of Default") shall occur, that is to say:
20.1.1. If Tenant shall make an assignment for the benefit of its creditors; or
20.1.2. If any petition shall be filed against Tenant in any court, whether occurrences or not pursuant to any statute of the United States or of any State, in any bankruptcy, reorganization, composition, extension, arrangement or insolvency proceeding, and if any such proceeding shall not be dismissed within ninety (90) days after the institution of the same; or if any such petition shall be so filed by Tenant; or
20.1.3. If, in any proceeding, a receiver or trustee be appointed for all or any portion of Tenant's property, and such receivership or trusteeship shall not be vacated or set aside within ninety (90) days after the appointment of such receiver or trustee; or
20.1.4. If Tenant shall fail to pay any installment of the Fixed Annual Rent or any Additional Rent (subject to Sections 20.1.5 and 20.1.6 below), or any part thereof, when the same shall become due and payable, and such failure shall continue for ten (10) days after notice thereof from Landlord to Tenant, provided, however, that Landlord shall be required to give Tenant notice of failure to pay only for the first two (2) times in any twelve (12) month period, and further provided that, with respect to any payment to be made to a Fee Mortgagee, (i) same shall be paid by Tenant at least two (2) business days prior to the expiration of the grace or cure period contained in such Fee Mortgage, (ii) proof of payment by facsimile transmission shall be sent to Landlord immediately upon payment by Tenant and (iii) no notice of failure to pay such payment to a Fee Mortgagee shall be given by Landlord to Tenant. A failure on the part of Tenant to pay such requisite amounts under a Fee Mortgage in accordance with this provision (unless Fee Mortgagee waives any resulting default or reinstates the Fee Mortgage following such default) shall constitute an Event of Default. However, the failure on the part of Tenant to submit proof of payment thereof acts shall constitute an Event of Default under this lease only if Sublease: (i) Tenant has received notice if Lessee, at any time during the continuance of this Sublease (and regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity, or before any administrative tribunal, which have or might have the effect of preventing Lessee from Landlord that Landlord has not received said copies and (ii) Tenant has not forwarded said copies within ten (10) business days of receipt of said notice; or
20.1.5. If Tenant fails to comply with Section 34.2, unless the Fee Mortgagee agrees to waive all default interest and penalties ("Penalties") in respect of such failure to refinance the Fee Mortgage or extend the maturity date thereof or Tenant pays such Penalties to the Fee Mortgagee or escrows same complying with the Landlord's counsel terms of this Sublease), shall (provided, however, if, thereafter, the Fee Mortgagee waives the Penalties or Tenant refinances the Fee Mortgage or extends the maturity date of the Fee Mortgage as required by Section 34.2, such escrow shall be released to Tenant); or
20.1.6. If Tenant fails to comply with Section 34.2, and the Fee Mortgagee commences a foreclosure proceeding or sends written notice to Landlord that it intends to commence a foreclosure proceeding (provided, however, if the Fee Mortgagee rescinds any notice of foreclosure or discontinues, or agrees in writing to discontinue, any foreclosure proceeding once it is commenced, such default shall be deemed waived by the Landlord); or
20.1.7. If Tenant shall 1) fail to perform make any payment when due of Basic Rent, additional rent or observe any other requirement of this lease (not hereinbefore in this Section 20.1 specifically referred to) on the part of Tenant sum herein required to be performed or observed (other than the payment of a sum of money) paid by Lessee and such failure shall continue for thirty (30) a period of 10 days after delivery by Lessor of written notice thereof from Landlord to Tenant (subject, however, to the provisions of Sections 20.5 and 24.4);
20.1.8. If the Optionee fails to pay the Option Payments when the same shall Lessee that any such payment has become due and payablethat failure to pay within 10 days of receipt of the notice may result in termination of this Sublease and other liability, and or (2) fail to observe or perform any other provision hereof for 15 days after Lessor shall have given to Lessee notice of such failure shall continue for ten (10) Business Days after notice thereof from Landlord to Tenant; Thenprovided that, upon in the happening of any one or more of the aforementioned Events of Default, (subject to the reinstatement of the Fee Mortgage or a waiver by Fee Mortgagee case of any default under the Fee Mortgage as provided referred to in Section 20.1.4 abovethis clause (2) Landlord may give to Tenant a notice (hereinafter called "notice of termination") terminating this lease at the expiration of five (5) business days from the date of Tenant's receipt of which cannot with diligence be cured within such notice of termination, and at the expiration of such five (5) business days, this lease and the term of this lease, as well as all of the right, title and interest of the Tenant hereunder, shall wholly cease and expire in the same manner and with the same force and effect as if the date of expiration of such five (5) 15-day period were the date originally specified herein for the expiration of the term of this lease, and Tenant shall then quit and surrender the Demised Premises to Landlord, and Landlord or Landlord's agents or servants may, either by summary process or by any suitable action or proceeding at law, immediately or at any time thereafter re-enter the Demised Premises and remove therefrom Tenant, its agents, employees, servants, licensees, and any Subtenants and other persons, and all or any of its or their property therefrom, and repossess and enjoy the Demised Premises, together with all additions, alterations and improvements thereto; but Tenant shall remain liable as hereinafter provided, subject to the provisions of Article 31.
Section 20.2. Subject to the rights of any Mortgagee, if this lease shall be terminated as provided in Section 20.1, all of the right, title, estate and interest of Tenant (a) in and to the Building and the Building Equipment, all changes, additions and alterations therein, and all renewals and replacements thereof, (b) in and to all rents, income, receipts, revenues, issues and profits issuing from the Demised Premises, or any part thereof, whether then accrued or to accrue, (c) in and to all insurance policies and all insurance monies premiums or awards paid or payable thereunder, and (d) in the then entire undisbursed balance of any funds in the hands of the Depository, shall automatically pass to, vest in and belong to Landlord, without further action on the part of either party, free of any claim thereto by Tenant.
Section 20.3. Subject to the provisions of Article 31, if this lease is terminated under the provisions of Section 20.1 or in the event of the termination of this lease, or of re-entry, by or under any summary dispossess or other proceeding or action or any provision of law by reason of an Event of Default hereunder on the part of Tenant; Tenant shall pay Landlord the fair rental value of any space in the Demised Premises occupied by Tenant or an Affiliate after such termination or re-entry, without thereby creating a landlord-tenant relationship and Tenant shall be liable for no other damages. In the event of a breach or threatened breach by Tenant of any of the covenants or provisions hereof beyond the applicable grace period, if any, Landlord Lessee shall have proceed promptly to cure the right to seek an injunction same and the right to invoke any remedy allowed at law or in equity as if re-entry, summary proceedings and other remedies were not herein provided for. Mention in this lease of any particular remedy thereafter shall not preclude Landlord from any other remedy, in law or in equity. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant being evicted or dispossessed for any cause, or in the event of Landlord obtaining possession of the Demised Premises by reason of the violation by Tenant of any of the covenants and conditions of this lease.
Section 20.4. Tenant, for itself and any and all persons claiming through or under Tenant, including its creditors, upon the termination of this lease and of the term of this lease in accordance with the terms hereof, or in the event of entry of judgment for the recovery of the Possession of the Demised Premises in any action or proceeding, or if Landlord shall enter the Demised Premises by process of law hereby waives any right of redemption provided or permitted by any statute, law or decision now or hereafter enforce, and does hereby waive, surrender and give up all rights or privileges which it or they may or might have under and by reason of any present or future law or decision, to redeem the Demised Premises or for a continuation of this lease for the term of this lease hereby demised after having been dispossessed or ejected therefrom by process of law.
Section 20.5. Anything in this Article 20 to the contrary notwithstanding it is expressly understood that with respect to any Event of Default within the purview of Section 20.1.7 only, if such Event of Default cannot with the exercise of reasonable diligence, because of Unavoidable Delays or otherwise, be cured within the period of thirty (30) days provided for in said Section, Landlord shall not be entitled to serve a notice of termination upon Tenant, as provided in Section 20.1, if Tenant shall commence prosecute the curing of such Event default with diligence, then, upon receipt by Lessor of Default promptly after notice thereof a certificate from Landlord the President or a Vice President of Lessee stating the reason that such default cannot be cured within 15 days and shall thereafter proceed stating that Lessee is proceeding with reasonable diligence to complete the curing of cure such Event of Default, subject to Unavoidable Delays, it being the intention hereof that in connection with any Event of Default within the purview of Section 20.1.7 only, which is not susceptible of being cured with due diligence within said thirty (30) daysdefault, the time of Tenant within which to cure the same such failure may be cured shall be extended for such period as may be necessary to complete the curing of the same with reasonable diligence, subject to Unavoidable Delays. If at any time Landlord has reasonably determined that Tenant has not proceeded with reasonable diligence to complete the curing of such Event of Default, Landlord ); or (ii) if Lessee shall not be entitled to serve file a notice of termination unless Landlord has notified Tenant of such determination and Tenant has failed to respond within five (5) business days after its receipt of such notice. Any dispute between Landlord and Tenant with respect to the subject matter hereof shall be submitted to arbitration petition in bankruptcy or for reorganization or for an arrangement pursuant to Article 44.
Section 20.6. The words "re-enter" and "re-entry" as used herein are not restricted to their technical legal meanings.
Section 20.7. If
(a) there shall be an Event of Default and (b) Tenant shall not be attempting to cure such Event of Default with reasonable diligenceany present or future federal or state bankruptcy law or under any similar federal or state law, then Landlord may, but shall not be obligated to do so, after written notice to Tenant and without waiving or releasing Tenant from any obligations of Tenant in this lease contained, make such payment or perform such act which Tenant is obligated to perform under this lease in such manner and to such extent as may be necessary to cure such Event of Default, and, in exercising any such rights, pay any necessary and incidental costs and expenses, employ counsel and incur and pay reasonable attorneys' fees. All sums so paid by Landlord and all necessary costs and expenses of Landlord incidental thereto, together with interest thereon at the Lease Interest Rate from the date of the making of such expenditures by Landlord, shall be deemed to be Additional Rent and, except as otherwise in this lease expressly provided, shall be payable to the Landlord twenty (20) days after demand, and if not promptly paid shall be added to any rent then due or thereafter becoming due under this lease, and Tenant covenants to pay any such sum or sums with interest as aforesaid and Landlord shall have (in addition to any other right or remedy of Landlord) the same rights and remedies in the event of the non-payment thereof by Tenant as in the case of default by Tenant in the payment of the Fixed Annual Rent.or
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Conditional Limitations; Default Provisions. Section 20.1. This lease and the term of this lease are subject to the limitations that if, at any time prior to or during the term of this lease, any one or more (a) Any of the following events (herein called occurrences or acts shall constitute an "Event of Default") shall occur, that is to sayEVENT OF DEFAULT" under this Lease:
20.1.1. If (i) if Tenant shall make an assignment for the benefit of its creditors; or
20.1.2. If any petition shall be filed against Tenant in any court, whether or not pursuant to any statute of the United States or of any State, in any bankruptcy, reorganization, composition, extension, arrangement or insolvency proceeding, and if any such proceeding shall not be dismissed within ninety (901) days after the institution of the same; or if any such petition shall be so filed by Tenant; or
20.1.3. If, in any proceeding, a receiver or trustee be appointed for all or any portion of Tenant's property, and such receivership or trusteeship shall not be vacated or set aside within ninety (90) days after the appointment of such receiver or trustee; or
20.1.4. If Tenant shall fail to pay any installment of Basic Rent on or before three (3) Business Days following the Fixed Annual Rent or any Additional Rent (subject to Sections 20.1.5 and 20.1.6 below), or any part due date thereof, when the same shall become due and payable, and such failure shall continue for ten (10) days after notice thereof from Landlord to Tenant, provided, however, that Landlord shall be required to give Tenant notice of failure to pay only for the first two (2) times in any twelve (12) month period, fail to pay Additional Rent or other sum as and further provided that, with respect when required to any payment to be made to a Fee Mortgagee, (i) same shall be paid by Tenant at least two (2) business days prior to the expiration of the grace or cure period contained in such Fee Mortgage, (ii) proof of payment by facsimile transmission shall be sent to Landlord immediately upon payment by Tenant and (iii) no notice of failure to pay such payment to a Fee Mortgagee shall be given by Landlord to Tenant. A failure on the part of Tenant to pay such requisite amounts under a Fee Mortgage in accordance with this provision (unless Fee Mortgagee waives any resulting default or reinstates the Fee Mortgage following such default) shall constitute an Event of Default. However, the failure on the part of Tenant to submit proof of payment thereof shall constitute an Event of Default under this lease only if (i) Tenant has received notice from Landlord that Landlord has not received said copies and (ii) Tenant has not forwarded said copies within ten (10) business days of receipt of said notice; or
20.1.5. If Tenant fails to comply with Section 34.2, unless the Fee Mortgagee agrees to waive all default interest and penalties ("Penalties") in respect of such failure to refinance the Fee Mortgage or extend the maturity date thereof or Tenant pays such Penalties to the Fee Mortgagee or escrows same with the Landlord's counsel (provided, however, if, thereafter, the Fee Mortgagee waives the Penalties or Tenant refinances the Fee Mortgage or extends the maturity date of the Fee Mortgage as required by Section 34.2, such escrow shall be released to Tenant); or
20.1.6. If Tenant fails to comply with Section 34.2, and the Fee Mortgagee commences a foreclosure proceeding or sends written notice to Landlord that it intends to commence a foreclosure proceeding (provided, however, if the Fee Mortgagee rescinds any notice of foreclosure or discontinueshereunder, or agrees in writing to discontinue, any foreclosure proceeding once it is commenced, such default shall be deemed waived by the Landlord); or
20.1.7. If Tenant shall (3) fail to observe or perform or observe any other requirement of this lease (not hereinbefore in this Section 20.1 specifically referred to) on the part of Tenant to be performed or observed (other than the payment of a sum of money) provision hereof and such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant of such failure (subjectprovided, howeverthat 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 the provisions of Sections 20.5 and 24.4);
20.1.8. If the Optionee fails to pay the Option Payments when cure the same shall become due and payablethereafter prosecute the curing thereof with diligence, and the time within which such failure may be cured shall continue be extended for ten such period as is necessary to complete the curing thereof with diligence, but in no event to exceed one hundred fifty (10150) Business Days after notice thereof from Landlord to Tenant; Then, upon the happening of any one or more of the aforementioned Events of Default, (subject to the reinstatement of the Fee Mortgage or a waiver by Fee Mortgagee of any default under the Fee Mortgage as provided in Section 20.1.4 above) Landlord may give to Tenant a notice (hereinafter called "notice of termination") terminating this lease at the expiration of five (5) business days from the date of such failure); or
(ii) if any representation or warranty of Tenant or Guarantor set forth herein or in any 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 time when the same shall have been made; or
(iii) if Tenant or any guarantor of Tenant's receipt obligations under this Lease (any such guarantor is referred to herein as a "GUARANTOR") shall file a petition in bankruptcy or for reorganization or for an arrangement, administration, liquidation or receivership pursuant to any federal or state law (or any other law governing a Guarantor), or shall be adjudicated a bankrupt or become insolvent or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of Tenant or a 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 such Guarantor shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or
(iv) if a receiver, trustee, administrator or liquidator of Tenant or any Guarantor or of all or substantially all of the assets of Tenant or such Guarantor or of the Premises or Tenant's estate therein shall be appointed in any proceeding brought by Tenant or a Guarantor, or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against Tenant or a Guarantor and shall not be discharged within ninety (90) days after such appointment, or if Tenant or a Guarantor shall consent to or acquiesce in such appointment; or
(v) if the Premises shall have been left unoccupied and unattended for a period of thirty (30) days (other than for renovation or reconstruction; or
(vi) if Tenant or a Guarantor shall dissolve or otherwise fail to maintain its legal existence; or
(vii) if Tenant shall default under Sections 2.2(c), 4.1(a), 4.1(b) or 10.3 of this Lease; or
(viii) if any Guarantor shall default under the provisions of its guaranty; or
(ix) if Tenant shall fail to maintain any insurance required to be maintained by Tenant in accordance with the terms and conditions of Section 3.7 hereof.
(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 shall have the right to give Tenant notice of termination, and at the expiration Landlord's termination of such five (5) business days, this lease and the term of this leaseLease. Upon the giving of such notice, the term of this Lease and the estate hereby granted shall expire and terminate on such date as well as all of the right, title fully and interest of the Tenant hereunder, shall wholly cease and expire in the same manner completely and with the same force and effect as if the such date of expiration of such five (5) day period were the date originally specified herein fixed for the expiration of the term of this lease, and Tenant shall then quit and surrender the Demised Premises to Landlord, and Landlord or Landlord's agents or servants may, either by summary process or by any suitable action or proceeding at law, immediately or at any time thereafter re-enter the Demised Premises and remove therefrom Tenant, its agents, employees, servants, licensees, and any Subtenants and other personsLease, and all or any rights of its or their property therefromTenant hereunder shall expire and terminate, and repossess and enjoy the Demised Premises, together with all additions, alterations and improvements thereto; but Tenant shall remain liable as hereinafter provided, subject to the provisions of Article 31.
Section 20.2. Subject to the rights of any Mortgagee, if this lease shall be terminated as provided in Section 20.1, all of the right, title, estate and interest of Tenant (a) in and to the Building and the Building Equipment, all changes, additions and alterations therein, and all renewals and replacements thereof, (b) in and to all rents, income, receipts, revenues, issues and profits issuing from the Demised Premises, or any part thereof, whether then accrued or to accrue, (c) in and to all insurance policies and all insurance monies premiums or awards paid or payable thereunder, and (d) in the then entire undisbursed balance of any funds in the hands of the Depository, shall automatically pass to, vest in and belong to Landlord, without further action on the part of either party, free of any claim thereto by Tenant.
Section 20.3. Subject to the provisions of Article 31, if this lease is terminated under the provisions of Section 20.1 or in the event of the termination of this lease, or of re-entry, by or under any summary dispossess or other proceeding or action or any provision of law by reason of If an Event of Default hereunder on the part of Tenant; Tenant shall pay Landlord the fair rental value of any space in the Demised Premises occupied by Tenant or an Affiliate after such termination or re-entry, without thereby creating a landlord-tenant relationship have happened and Tenant shall be liable for no other damages. In the event of a breach or threatened breach by Tenant of any of the covenants or provisions hereof beyond the applicable grace period, if anycontinuing, Landlord shall have the right immediate right, whether or not the term of this Lease shall have been terminated pursuant to seek an injunction Section 5.1(b), to re-enter and repossess the Premises and the right to invoke remove all persons and property therefrom by summary proceedings, ejectment, any remedy allowed at law other legal action or in equity 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, summary proceedings and other remedies were 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 herein provided for. Mention in the term of this lease Lease shall have been terminated pursuant to Section 5.1(b), Landlord may (but shall be under no obligation to) relet the Premises or any portion thereof for the account of any particular remedy shall not preclude Landlord from any other remedyTenant, in law or in equity. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event name of Tenant being evicted or dispossessed 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 cause, or in the event of Landlord obtaining possession of the Demised Premises rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet the violation by Tenant of Premises or any of the covenants and conditions of this leaseportion thereof or for any failure to collect any rent due upon any such reletting.
Section 20.4. Tenant, for itself and any and all persons claiming through (e) No expiration or under Tenant, including its creditors, upon the earlier termination of this lease and of the term of this lease in accordance with Lease pursuant to Section 5.1(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 5.1(c) or otherwise, and no reletting of the terms hereofPremises or any portion thereof 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 in reletting.
(f) In the event of entry the expiration or earlier termination of judgment for the recovery of the Possession of the Demised Premises in any action or proceeding, or if Landlord shall enter the Demised Premises by process of law hereby waives any right of redemption provided or permitted by any statute, law or decision now or hereafter enforce, and does hereby waive, surrender and give up all rights or privileges which it or they may or might have under and by reason of any present or future law or decision, to redeem the Demised Premises or for a continuation of this lease for the term of this lease hereby demised after having been dispossessed Lease or ejected re-entry or repossession of the Premises or removal of persons or property therefrom by process reason of law.
Section 20.5. Anything in this Article 20 to the contrary notwithstanding it is expressly understood that with respect to any Event occurrence of Default within the purview of Section 20.1.7 only, if such Event of Default cannot with the exercise of reasonable diligence, because of Unavoidable Delays or otherwise, be cured within the period of thirty (30) days provided for in said Section, Landlord shall not be entitled to serve a notice of termination upon Tenant, as provided in Section 20.1, if Tenant shall commence the curing of such Event of Default promptly after notice thereof from Landlord and shall thereafter proceed with reasonable diligence to complete the curing of such an Event of Default, subject to Unavoidable Delays, it being the intention hereof that in connection with any Event of Default within the purview of Section 20.1.7 only, which is not susceptible of being cured with due diligence within said thirty (30) days, the time of Tenant within which to cure the same shall be extended for such period as may be necessary to complete the same with reasonable diligence, subject to Unavoidable Delays. If at any time Landlord has reasonably determined that Tenant has not proceeded with reasonable diligence to complete the curing of such Event of Default, Landlord shall not be entitled to serve a notice of termination unless Landlord has notified Tenant of such determination and Tenant has failed to respond within five (5) business days after its receipt of such notice. Any dispute between Landlord and Tenant with respect to the subject matter hereof shall be submitted to arbitration pursuant to Article 44.
Section 20.6. The words "re-enter" and "re-entry" as used herein are not restricted to their technical legal meanings.
Section 20.7. If
(a) there shall be an Event of Default and (b) Tenant shall not pay to Landlord all Basic Rent, Additional Rent and other sums required to be attempting to cure such Event of Default with reasonable diligence, then Landlord may, but shall not be obligated to do so, after written notice to Tenant and without waiving or releasing Tenant from any obligations of Tenant in this lease contained, make such payment or perform such act which Tenant is obligated to perform under this lease in such manner and to such extent as may be necessary to cure such Event of Default, andpaid by Tenant, in exercising any such rights, pay any necessary and incidental costs and expenses, employ counsel and incur and pay reasonable attorneys' fees. All sums so paid by Landlord and all necessary costs and expenses of Landlord incidental thereto, each case together with interest thereon at the 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 Interest Rate in the absence of such expiration, termination, re-entry, repossession or removal and whether or not the Premises or any portion thereof shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current 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 liquidated and agreed current 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 liquidated and agreed current damages pursuant to Section 5.1(f), 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 and in lieu of all liquidated and agreed current damages beyond the date of such demand as outlined in Section 5.1(f) above (it being agreed that it would be impracticable or extremely difficult to fix the actual damages), an amount equal to, at the election of Landlord in its sole discretion, (A) 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 making date to which Tenant shall have satisfied in full its obligations under Section 5.1(f) to pay liquidated and agreed current damages) for what would be the then-unexpired term of the then-current term of this Lease in the absence of such expenditures 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 "TREASURY RATE") 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 "LIQUIDATED DAMAGES") or (B) an amount equal to the aggregate Stipulated Loss Value applicable to the Premises as specified on Schedule E annexed hereto and made a part hereof as of the immediately preceding Payment Date plus an amount equal to the Make-Whole Premium, and any other sums then due and payable as of the date of such demand under this Lease. For the purposes of determining value pursuant to this Section 5.1(g)(A), the following shall apply: (a) determinations of fair rental value shall be made by an MAI appraiser (engaged by Landlord) who is a member of the American Institute of Appraisers, with copies of such determinations and supporting analysis to be provided to Tenant; and (b) all determinations of Liquidated Damages shall be deemed to be Additional Rent and, except as otherwise in this lease expressly provided, shall be payable to the Landlord twenty (20) days after demand, and if not promptly paid shall be added to any rent then due or thereafter becoming due under this lease, and Tenant covenants to pay any such sum or sums with interest as aforesaid and Landlord shall have (in addition to any other right or remedy of Landlord) the same rights and remedies in the event of the non-payment thereof by Tenant as in the case of default by binding on Tenant in the payment absence of manifest error. If any law shall limit the Fixed Annual Rentamount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such law.
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