Defaults Remedies. 21.01. The occurrence of any one or more of the following events shall constitute a default and breach of this lease by Tenant: A. Failure to pay rent or any other required payment when due, if the failure continues for five (5) days after notice has been given to Tenant; provided, however, that any such notice shall be in lieu of, and not in addition to, any notice required under Section 1161, et seq., of the California Code of Civil Procedure; B. Abandonment of the premises; C. The failure by Tenant to observe or perform any other covenants, conditions or provisions of this lease to be observed or performed by Tenant where (except where a different period of time is specified in this lease) such failure shall continue for a period of thirty (30) days after written notice thereof from Landlord to Tenant; provided, however, that any such notice shall be in lieu of, and not in addition to, any notice required under Section 1161, et seq., of the California Code of Civil Procedure. If the nature of Tenant's default is such that more than thirty (30) days is reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion; D. The filing or occurrence of: (1) a petition in bankruptcy by or against the Tenant, unless cured or removed within sixty (60) days; (2) a petition or answer by Tenant seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution or other relief of the same or different kind under any provision of the Bankruptcy Act; (3) adjudication of Tenant as a bankrupt or insolvent; (4) an assignment of all or substantially all of Tenant's assets for the benefit of creditors; (5) a petition or other proceeding, except by Landlord, its agents or affiliates, by or against Tenant, for, or the appointment of, a trustee, receiver, or liquidator of Tenant with respect to all or substantially all of its property; provided, however, that Tenant shall not be in default if Tenant cures or removes such a petition or proceeding within sixty (60) days; (6) a petition or other proceeding by or against Tenant for its dissolution or liquidation, or the taking of possession of the property of Tenant by any governmental authority in connection with dissolution or liquidation, provided, however, that Tenant shall not be in default if Tenant cures or removes such a petition or proceeding within sixty (60) days; (7) the taking or attachment by any person, except by Landlord or its agents or affiliates, of the leasehold created hereby or any part thereof upon execution, or other process of law or equity; or (8) the general failure of Tenant to pay its debts as they become due, as such phrase is construed in connection with 11 U.S.C. Section 303(h)(1). E. Except during such periods as renovations or reconstruction is in active progress, or as the premises are rendered unsafe or unusable, failure to make use of the premises for more than forty-five (45) days in any ninety (90) day period. 21.02. Notices given under Section 21.01 above shall specify the alleged default and the applicable lease provisions, and shall demand that Tenant perform the provisions of this lease or pay the rent that is in arrears, as the case may be, within the applicable period of time, or quit the premises. No such notice shall be deemed a forfeiture or a termination of this lease unless Landlord specifically so elects in the notice. 21.03. Landlord shall have the following remedies without further notice to Tenant if Tenant commits a default. These remedies are not exclusive; they are cumulative and in addition to any remedies now or later allowed by law: A. Landlord can continue this lease in full force and effect, and the lease will continue in effect as long as Landlord does not terminate Tenant's right to possession, and Landlord shall have the right to collect rent when due. During the period Tenant is in default, Landlord can enter the premises and relet them, or any part of them, to third parties for Tenant's account. Tenant shall be liable immediately to Landlord for all costs Landlord incurs in reletting the premises, including, without limitation, brokers' commissions, expenses of remodeling the premises required by the reletting, and like costs. Reletting can be for a period shorter or longer than the remaining term of this lease. Tenant shall pay to Landlord the rent due under this lease on the dates the rent is due, less the rent Landlord receives from any reletting. No act by Landlord allowed by this section shall terminate 28 this lease unless Landlord notifies Tenant that Landlord elects to terminate this lease. B. Landlord can terminate Tenant's right to possession of the premises at any time. No act by Landlord other than the giving of written notice to Tenant shall terminate this lease. Acts of maintenance, efforts to relet the premises, or the appointment of a receiver on Landlord's initiative to protect Landlord's interest under this lease shall not constitute a termination of Tenant's right to possession. On termination, Landlord has the right to recover from Tenant: (1) The worth, at the time of the award of the unpaid rent that had been earned at the time of termination of this lease; (2) The worth, at the time of the award of the amount by which the unpaid rent that would have been earned after the date of termination of this lease until the time of award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided; (3) The worth, at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided; and (4) Any other amount, including court costs and attorneys' fees, necessary to compensate Landlord for all detriment proximately caused by Tenant's default. "The worth, at the time of the award," as used in (1) and (2) of this paragraph B is to be computed by allowing interest at that rate equal to the average weighted discount rate applied by the Federal Reserve Bank of San Francisco during the time period in question, plus 1%, or the maximum amount allowed by law, whichever is less. "The worth, at the time of the award,"as referred to in (3) of this paragraph B is to be computed by discounting the amount at the discount rate applied by the Federal Reserve Bank of San Francisco at the time of the award, plus 1%. 21.04. Landlord, at any time after Tenant commits a default, may, but is under no obligation to, cure the default at Tenant's cost. If Landlord at any time, by reason of Tenant's default, pays any sum or does any act that requires the payment of any sum, the sum paid by Landlord shall be due immediately from Tenant to Landlord at the same time the sum is paid and, if paid at a later date, shall bear interest from the date the sum is paid by Landlord until Landlord is reimbursed by Tenant at that rate equal to the weighted average discount rate applied by the Federal Reserve Bank of San Francisco during the relevant time period plus 1%, or the maximum amount allowed by law, whichever is less.
Appears in 1 contract
Sources: Office Lease (Harbor Bancorp /)
Defaults Remedies. 21.01SECTION 9.1. The occurrence of any one or more of the following events shall constitute a events of default and breach of this lease by Tenant("EVENTS OF DEFAULT") hereunder:
A. Failure (a) Lessee fails to pay rent make any payments to Lessor within ten (10) days after the same become due hereunder;
(b) any representation or warranty of Lessee contained herein or in any document furnished to Lessor in connection herewith is incorrect or misleading in any material respect when made;
(c) Lessee fails to observe or perform any agreement, covenant or undertaking required to be performed by the licensee under any agreement relating to any Unit if such failure causes or permits, or with notice or the passage of time or both would cause or permit, the termination of such Unit by the licensor thereunder or any other required payment when duematerial impairment of licensee's rights thereunder, provided that if Lessee cures such failure within the failure continues for five time permitted under the terms of the agreement relating to such Unit to avoid such termination or impairment (5) days after notice has been given but in no event to Tenant; providedexceed 90 days), however, that any such notice then no Event of Default shall be in lieu of, and not in addition to, any notice required under Section 1161, et seq., of the California Code of Civil Proceduredeemed to have occurred hereunder;
B. Abandonment of the premises;
C. The failure by Tenant (d) Lessee fails to observe or perform any other covenantscovenant, conditions agreement or provisions warranty made by Lessee hereunder or under any document delivered pursuant hereto and such failure continues for thirty (30) days after written notice thereof to Lessee;
(i) Lessee or Middleby shall commence any case, proceeding or other action (A) under any existing or future law of this lease any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or Lessee or Middleby shall make a general assignment for the benefit of its creditors; or (ii) there shall be observed commenced against Lessee or performed by Tenant where Middleby any case, proceeding or other action of a nature referred to in clause (except where i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a different period of sixty (60) days; or (iii) there shall be commenced against Lessee or Middleby any case, proceeding or other action seeking issuance of a warrant of attachment, execution, restraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated or discharged, within sixty (60) days from the entry thereof; or (iv) Lessee or Middleby shall take any action in furtherance of, or
(v) Lessee or Middleby shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due;
(f) Lessee liquidates, dissolves or enters into any partnership, joint venture (other than in its ordinary course of business), consolidation, merger or other combination, and Lessee does not survive the same (provided such consolidation, merger or other combination does not violate any covenant of Lessee hereunder or otherwise create or default under this Lease or any related documents), or sells, leases or disposes of a substantial portion of its business or assets;
(i) Lessee shall fail to make any payment in respect of any indebtedness for borrowed money in excess of $500,000, or (ii) any event or condition shall occur which results in the default after the expiration of any applicable grace period, or requires the early redemption or prepayment, of any of such indebtedness for borrowed money or any event or condition shall occur and be continuing which enables (or, with the giving of notice or lapse of time is specified or both, would enable) the holders of any of such indebtedness for borrowed money acting on such holder's behalf to accelerate the maturity, or require the early redemption or prepayment, of any of such indebtedness for borrowed money;
(h) (i) one or more judgments or orders for the payment (which judgments or orders are uninsured by third party insurers) in this lease) the aggregate, of money in excess of $500,000 shall be rendered against Lessee and such failure judgments or orders shall continue unsatisfied and unstayed for a period of thirty (30) days after written notice thereof from Landlord or (ii) one or more judgments or orders shall be rendered against Lessee, which judgments or orders shall be stayed on condition that a bond or collateral equal to Tenant; or greater than, in the aggregate, $500,000 be posted or provided, however, that any and such notice judgments or orders shall not be in lieu of, and not in addition to, any notice required under Section 1161, et seq., overturned or lifted within a period of the California Code of Civil Procedure. If the nature of Tenant's default is such that more than thirty (30) days is reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion;
D. The filing or occurrence of:
(1) a petition in bankruptcy by or against the Tenant, unless cured or removed within sixty (60) days;
(2) a petition or answer by Tenant seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution or other relief of the same or different kind under any provision of the Bankruptcy Act;
(3) adjudication of Tenant as a bankrupt or insolvent;
(4) an assignment of all or substantially all of Tenant's assets for the benefit of creditors;
(5) a petition or other proceeding, except by Landlord, its agents or affiliates, by or against Tenant, for, or the appointment of, a trustee, receiver, or liquidator of Tenant with respect to all or substantially all of its property; provided, however, that Tenant shall not be in default if Tenant cures or removes such a petition or proceeding within sixty (60) days;
(6) a petition or other proceeding by or against Tenant for its dissolution or liquidation, or the taking of possession of the property of Tenant by any governmental authority in connection with dissolution or liquidation, provided, however, that Tenant shall not be in default if Tenant cures or removes such a petition or proceeding within sixty (60) days;
(7) the taking or attachment by any person, except by Landlord or its agents or affiliates, of the leasehold created hereby or any part thereof upon execution, or other process of law or equity; or
(8) i) Middleby fails to observe or perform any covenant, agreement or warranty made by Middleby under the general failure of Tenant to pay its debts as they become due, as such phrase is construed in connection with 11 U.S.C. Section 303(h)(1)Support Agreement.
E. Except during such periods SECTION 9.2. If any Event of Default occurs, Lessor, at its option, may:
(a) proceed by appropriate court action or actions either at law or in equity, to enforce performance by Lessee of the applicable covenants of this Lease or to recover damages for the breach thereof; or
(b) by notice in writing to Lessee terminate this Lease, whereupon all rights of Lessee to use the Units shall terminate, but Lessee shall remain liable as renovations or reconstruction is in active progress, or as hereinafter provided; and thereupon Lessor may enter upon the premises are rendered unsafe of Lessee or unusable, failure to make use other premises where any of the premises for more than forty-five (45) days in any ninety (90) day period.
21.02. Notices given under Section 21.01 above shall specify the alleged default Units may be and the applicable lease provisions, and shall demand that Tenant perform the provisions take possession of this lease or pay the rent that is in arrears, as the case may be, within the applicable period of time, or quit the premises. No such notice shall be deemed a forfeiture or a termination of this lease unless Landlord specifically so elects in the notice.
21.03. Landlord shall have the following remedies without further notice to Tenant if Tenant commits a default. These remedies are not exclusive; they are cumulative and in addition to any remedies now or later allowed by law:
A. Landlord can continue this lease in full force and effect, and the lease will continue in effect as long as Landlord does not terminate Tenant's right to possession, and Landlord shall have the right to collect rent when due. During the period Tenant is in default, Landlord can enter the premises and relet them, all or any part of them, to third parties for Tenant's account. Tenant shall be liable immediately to Landlord for all costs Landlord incurs in reletting such Units and thenceforth hold the premises, including, without limitation, brokers' commissions, expenses of remodeling the premises required by the reletting, and like costs. Reletting can be for a period shorter or longer than the remaining term of this lease. Tenant shall pay to Landlord the rent due under this lease on the dates the rent is due, less the rent Landlord receives same free from any reletting. No act by Landlord allowed by this section shall terminate 28 this lease unless Landlord notifies Tenant that Landlord elects to terminate this lease.
B. Landlord can terminate Tenant's right to possession of the premises at any time. No act by Landlord other than the giving of written notice to Tenant shall terminate this lease. Acts of maintenanceLessee, efforts to relet the premisesits successors or assigns, or the appointment of but Lessor shall, nevertheless, have a receiver on Landlord's initiative to protect Landlord's interest under this lease shall not constitute a termination of Tenant's right to possession. On termination, Landlord has the right to recover from Tenant:
Lessee any and all amounts that under the terms of this Lease may be then due or that may have accrued to the date of such termination (1computing the rent for any number of days less than a full rent period by multiplying the rent for such full rental period by a fraction of which the numerator is such number of days and the denominator is the total number of days in such full rent period) The worthand also to recover forthwith from Lessee: (i) as damages for loss of the bargain and not as a penalty, a sum, with respect to each Unit, that equals (x) the present value, at the time of the award such termination, of the entire unpaid balance of all rent for the Unit that had been earned would otherwise have accrued hereunder from the date of such termination to the end of its Lease Term minus (y) the then present value of the rent Lessor reasonably estimates to be obtainable for the Unit during such period, such present value to be computed in each case by discounting at a rate equal to the then judgment rate of interest fixed under California law, compounded at the time of termination of this lease;
(2) The worthsame frequency as rent is payable hereunder, at from the time of the award of the amount by respective dates upon which the unpaid rent that would have been earned after payable hereunder had the date of termination of this lease until the time of award exceeds the amount Lease not been terminated and (ii) any damages and expenses in addition thereto that Lessor sustains because of the loss breach of rent that Tenant proves could have been reasonably avoided;
(3) The worthany covenant, at the time of the award of the amount by which the unpaid rent representation or warranty contained in this Lease other than for the balance payment of the term after the rent.Lessee hereby waives any rights now or hereafter conferred by statute or otherwise that may require Lessor to sell, lease or otherwise use any Unit in mitigation of Lessor's damages upon any default by Lessee, except as may be set forth in this Section 9.2, or that may otherwise limit or modify any of Lessor's rights or remedies under Section 9.2.
SECTION 9.3. Lessee agrees to pay all allocated time of award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided; and
(4) Any other amountcharges, including court costs and expenses of internal counsel for Lessor and any other attorneys' fees, necessary to compensate Landlord for all detriment proximately caused expenses or out-of-pocket costs incurred by Tenant's default. "The worth, at the time of the award," as used Lessor in (1) and (2) of enforcing this paragraph B is to be computed by allowing interest at that rate equal to the average weighted discount rate applied by the Federal Reserve Bank of San Francisco during the time period in question, plus 1%, or the maximum amount allowed by law, whichever is less. "The worth, at the time of the award,"as referred to in (3) of this paragraph B is to be computed by discounting the amount at the discount rate applied by the Federal Reserve Bank of San Francisco at the time of the award, plus 1%Lease.
21.04SECTION 9.4. Landlord, at any time after Tenant commits a default, mayThe remedies herein provided in favor of Lessor shall not be deemed exclusive, but is under no obligation toshall be cumulative, cure the default and shall be in addition to all other remedies in its favor existing at Tenant's costlaw or in equity.
SECTION 9.5. If Landlord at Lessee fails to perform any timeof its agreements contained herein, Lessor may perform such agreement, and Lessee shall pay the expenses incurred by reason of Tenant's default, pays any sum or does any act that requires the payment of any sum, the sum paid by Landlord shall be due immediately from Tenant to Landlord at the same time the sum is paid and, if paid at a later date, shall bear interest from the date the sum is paid by Landlord until Landlord is reimbursed by Tenant at that rate equal to the weighted average discount rate applied by the Federal Reserve Bank of San Francisco during the relevant time period plus 1%, or the maximum amount allowed by law, whichever is lessLessor in connection with such performance upon demand.
Appears in 1 contract
Sources: Lease Agreement (Middleby Corp)
Defaults Remedies. 21.01. A. The occurrence of any one or more of the following events shall constitute a default and breach of this lease by Tenant:
A. (1) Failure to pay rent or any other required payment when due, if the failure continues for five (5) days after notice has been given to Tenant; provided, however, that any such notice shall be in lieu of, and not in addition to, any notice required under Section 1161, et seq., of the California Code of Civil Procedure;
B. (2) Abandonment of the premisespremises (failure to occupy and operate the premises for twelve (12) hours shall be deemed an abandonment);
C. (3) The failure by Tenant to observe or perform any other of the covenants, conditions or provisions of this lease to be observed or performed by Tenant Tenant, other than described in paragraph (1) above, where (except where a different period of time is specified in this lease) such failure shall continue for a period of thirty (30) days after receipt of written notice thereof from Landlord to Tenant; provided, however, that any such notice shall be in lieu of, and not in addition to, any notice required under Section 1161, et seq., of the California Code of Civil Procedure. If if the nature of Tenant's default is such that more than thirty (30) days is are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion;
D. (4) The filing of execution or occurrence of:
(1a) a petition in bankruptcy by or against the Tenant, unless cured or removed within sixty (60) days;
(2b) a petition or answer by Tenant ▇▇▇▇▇▇ seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution or other relief of the same or different kind under any provision of the Bankruptcy Act;
(3c) adjudication of Tenant as a bankrupt or insolvent;
(4d) an assignment of all or substantially all of Tenant's assets for the benefit of creditors;
(5e) a petition or other proceeding, except by Landlord, its agents or affiliates, by or against Tenant, for, or the appointment of, a trustee, receiver, or liquidator of Tenant with respect to all or substantially all of its property; provided, however, that Tenant shall not be in default if Tenant cures or removes such a petition or proceeding within sixty (60) days;
(6f) a petition or other proceeding by or against Tenant for its dissolution or liquidation, or the taking of possession of the property of Tenant by any governmental authority in connection with dissolution or liquidation, provided, however, that Tenant shall not be in default if Tenant cures or removes such a petition or proceeding within sixty (60) days;
(7g) the taking or attachment by any person, except by Landlord or its agents or affiliates, of the leasehold created hereby or any part thereof upon execution, or other process of law or equity; or.
(8) 5) Notwithstanding any other provisions of this lease, the general failure of by Tenant to pay its debts as they become duecomply with any of the provisions of the lease, as if such phrase is construed failure (in connection with 11 U.S.C. Section 303(h)(1).
E. Except during such periods as renovations or reconstruction is the reasonable and good faith judgment of Landlord) places in active progress, or as imminent jeopardy the premises are rendered unsafe or unusable, failure to make use continued licensing of the premises for more than fortyas a skilled nursing facility and/or its certification as either a MediCal or Medicare provider and if, within twenty-five four (4524) days in any ninety (90hours after written notice thereof from Landlord to Tenant, Tenant shall not have either 1) day periodcured such failure, or 2) obtained an injunction or other order preventing revocation or suspension of licensing and/or decertification of the premises by virtue of such failure or alleged failure, or 3) provided Landlord with other reasonable assurances that the premises will not be subject to license suspension or revocation and/or decertification as a result of such failure or alleged failure.
21.02. (6) Notices given under Section 21.01 above this paragraph 16 shall specify the alleged default and the applicable lease provisions, and shall demand that Tenant perform the provisions of this lease or pay the rent that is in arrears, as the case may be, within the applicable period of time, or quit the premises. No such notice shall be deemed a forfeiture or a termination of this lease unless Landlord specifically so elects in the notice.
21.03. B. Landlord shall have the following remedies without further notice to Tenant if Tenant ▇▇▇▇▇▇ commits a default. These remedies are not exclusive; they are cumulative and in addition to any remedies now or later allowed by law:
A. (1) Landlord can continue this lease in full force and effect, and the lease will continue in effect as long as Landlord does not terminate Tenant's right to possession, and Landlord shall have the right to collect rent when due. During the period Tenant is in default, Landlord can enter the premises and relet them, or any part of them, to third parties for Tenant▇▇▇▇▇▇'s account. Tenant shall be liable immediately to Landlord for all costs Landlord incurs in reletting the premises, including, without limitation, brokers' commissions, expenses of remodeling the premises required by the reletting, and like costs. Reletting can be for a period shorter or longer than the remaining term of this lease. Tenant shall pay to Landlord the rent due under this lease on the dates the rent is due, less the rent Landlord receives from any reletting. No act by Landlord allowed by this section paragraph shall terminate 28 this lease unless Landlord notifies Tenant that Landlord elects to terminate this lease.
B. (2) Landlord can terminate Tenant's right to possession of the premises at any time. No act by Landlord other than the giving of written notice to Tenant shall terminate this lease. Acts of maintenance, efforts to relet the premises, or the appointment of a receiver on Landlord's initiative to protect Landlord▇▇▇▇▇▇▇▇'s interest under this lease shall not constitute a termination of Tenant's right to possession. On termination, Landlord has the right to recover from Tenant:
(1a) The worth, at the time of the award of the unpaid rent that had been earned at the time of termination of this lease;
(2b) The worth, at the time of the award of the amount by which the unpaid rent that would have been earned after the date of termination of this lease until the time of award exceeds the amount of the loss of rent that Tenant ▇▇▇▇▇▇ proves could have been reasonably avoided;
(3c) The worth, at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided; and
(4d) Any other amount, including and court costs and attorneys' feescosts, necessary to compensate Landlord for all detriment proximately caused by Tenant▇▇▇▇▇▇'s default. "The worth, at the time of the award," as used in (1a) and (2b) of this paragraph B subparagraph B(2) is to be computed by allowing interest at that the rate equal to the average weighted discount rate applied by the Federal Reserve Bank of San Francisco during the time period in question, plus 1%, or the maximum amount allowed by law, whichever is less10% per annum. "The worth, at the time of the award,"as award," as referred to in (3c) of this paragraph B subparagraph B(2) is to be computed by discounting the amount at the discount rate applied by of the Federal Reserve Bank of San Francisco at the time of the award, plus 1%.
21.04(3) If Tenant is in default of this lease Landlord shall have the right to have a receiver appointed to collect rent and conduct ▇▇▇▇▇▇'s business. Neither the filing of a petition for the appointment of a receiver nor the appointment itself shall constitute an election by Landlord to terminate this lease.
(4) Landlord, at any time after Tenant commits a default, may, but is under no obligation to, can cure the default at Tenant's cost. If Landlord at any time, by reason of Tenant's default, pays any sum or does any act that requires the payment of any sum, the sum paid by Landlord shall be due immediately from Tenant to Landlord at the same time the sum is paid andpaid, and if paid at a later date, shall bear interest from the date the sum is paid by Landlord until Landlord is reimbursed by Tenant at that rate equal to the weighted average discount rate applied by the Federal Reserve Bank of San Francisco during the relevant time period plus 1%, or the maximum amount allowed by law, whichever is less.repaid at
Appears in 1 contract
Sources: Assignment and Assumption of Lease Agreement (Sycamore Park Convalescent Hospital)
Defaults Remedies. 21.011 9 .1 by Tenant: Events of Default. The occurrence of any one or more of the following events shall constitute a default and breach of this lease Lease (a) Any failure by Tenant:
A. Failure Tenant to pay rent any Rent or any other charge required payment to be paid under this Lease, or any part thereof, when due, if the due unless such failure continues for is cured within five (5) days after Tenant's receipt of written notice has been given to Tenantthereof; provided, however, that any the such notice shall be in lieu of, addition to and not in addition to, lieu of any notice required under Section 1161, et seq., 1161 of the California Code of Civil Procedure;
B. Abandonment of ; or (b) Except where a specific time period is otherwise set forth for Tena11t's performance in this Lease, in which event the premises;
C. The failure to perfor1n by Tenant within such time period shall be a default by Tenant under this Section 19 .1 (b ), any failure by Tenant to observe or perform any other covenantsprovision, conditions covenant or provisions conditio11 of this lease Lease to be observed or performed perfor1ned by Tenant where (except where a different period of time is specified in this lease) such failure shall continue continues for a period of thirty (30) days after written notice thereof from Landlord to Tenant; provided, however, that any Tenant (such notice shall be in lieu of, addition to and not in addition to, lieu of any notice required under Section 1161, et seq., 1161 of the California Code of Civil Procedure. If ); provided that if the nature of Tenant's such default is such that more than the same cannot reasonably be cured within a thirty (30) days is reasonably required for its cureday period, then Tenant shall not be deemed to be in default if Tenant it diligently commences such cure within said thirty (30) day such period and thereafter diligently prosecutes proceeds to rectify and cure such cure to completion;
D. The default; or (c) To the extent permitted by law, a general assignment by Tenant or any guarantor of the Lease for the benefit of creditors, or the taking of any corporate action in furtherance of bankruptcy or dissolution whether or not there exists any proceeding under an insolvency or bankruptcy law, or the filing or occurrence of:
(1) a petition in bankruptcy by or against the TenantTenant or any guarantor of any proceeding under an insolvency or bankruptcy law, unless cured in the case of a proceeding filed against Tenant or removed any guarantor the same is dismissed within sixty (60) days;
, or the appointment of a trustee or receiver to take possession of all or substantially all of the assets of Tenant or any guarantor, unless possession is restored to Tenant or such guarantor within thirty (230) a petition days, or answer by Tenant seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution any execution or other relief of the same or different kind under any provision of the Bankruptcy Act;
(3) adjudication of Tenant as a bankrupt or insolvent;
(4) an assignment judicially authorized seizm·e of all or substantially all of Tenant's assets for located upon the benefit of creditors;
(5) a petition Premises or other proceeding, except by Landlord, its agents or affiliates, by or against Tenant, for, or the appointment of, a trustee, receiver, or liquidator of Tenant with respect to all or substantially all of its property; provided, however, that Tenant shall not be in default if Tenant cures or removes such a petition or proceeding within sixty (60) days;
(6) a petition or other proceeding by or against Tenant for its dissolution or liquidation, or the taking of possession of the property of Tenant by any governmental authority in connection with dissolution or liquidation, provided, however, that Tenant shall not be in default if Tenant cures or removes such a petition or proceeding within sixty (60) days;
(7) the taking or attachment by any person, except by Landlord or its agents or affiliates, of the leasehold created hereby or any part thereof upon execution, or other process of law or equity; or
(8) the general failure of Tenant to pay its debts as they become due, as such phrase is construed in connection with 11 U.S.C. Section 303(h)(1).
E. Except during such periods as renovations or reconstruction is in active progress, or as the premises are rendered unsafe or unusable, failure to make use of the premises for more than forty-five (45) days in any ninety (90) day period.
21.02. Notices given under Section 21.01 above shall specify the alleged default and the applicable lease provisions, and shall demand that Tenant perform the provisions of this lease or pay the rent that is in arrears, as the case may be, within the applicable period of time, or quit the premises. No such notice shall be deemed a forfeiture or a termination of this lease unless Landlord specifically so elects in the notice.
21.03. Landlord shall have the following remedies without further notice to Tenant if Tenant commits a default. These remedies are not exclusive; they are cumulative and in addition to any remedies now or later allowed by law:
A. Landlord can continue this lease in full force and effect, and the lease will continue in effect as long as Landlord does not terminate Tenant's right to possession, and Landlord shall have the right to collect rent when due. During the period Tenant is in default, Landlord can enter the premises and relet them, or any part of them, to third parties for Tenant's account. Tenant shall be liable immediately to Landlord for all costs Landlord incurs in reletting the premises, including, without limitation, brokers' commissions, expenses of remodeling the premises required by the reletting, and like costs. Reletting can be for a period shorter or longer than the remaining term of this lease. Tenant shall pay to Landlord the rent due under this lease on the dates the rent is due, less the rent Landlord receives from any reletting. No act by Landlord allowed by this section shall terminate 28 this lease unless Landlord notifies Tenant that Landlord elects to terminate this lease.
B. Landlord can terminate Tenant's right to possession of the premises at any time. No act by Landlord other than the giving of written notice to Tenant shall terminate this lease. Acts of maintenance, efforts to relet the premises, or the appointment of a receiver on Landlord's initiative to protect Landlord's interest under this lease shall not constitute a termination of Tenant's right to possession. On terminationinterest in this Lease, Landlord has the right to recover from Tenant:
unless such seizure is discharged within thirty (130) The worth, at the time of the award of the unpaid rent that had been earned at the time of termination of this lease;
(2) The worth, at the time of the award of the amount by which the unpaid rent that would have been earned after the date of termination of this lease until the time of award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided;
(3) The worth, at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoideddays; and
(4) Any other amount, including court costs and attorneys' fees, necessary to compensate Landlord for all detriment proximately caused by Tenant's default. "The worth, at the time of the award," as used in (1) and (2) of this paragraph B is to be computed by allowing interest at that rate equal to the average weighted discount rate applied by the Federal Reserve Bank of San Francisco during the time period in question, plus 1%, or the maximum amount allowed by law, whichever is less. "The worth, at the time of the award,"as referred to in (3) of this paragraph B is to be computed by discounting the amount at the discount rate applied by the Federal Reserve Bank of San Francisco at the time of the award, plus 1%.
21.04. Landlord, at any time after Tenant commits a default, may, but is under no obligation to, cure the default at Tenant's cost. If Landlord at any time, by reason of Tenant's default, pays any sum or does any act that requires the payment of any sum, the sum paid by Landlord shall be due immediately from Tenant to Landlord at the same time the sum is paid and, if paid at a later date, shall bear interest from the date the sum is paid by Landlord until Landlord is reimbursed by Tenant at that rate equal to the weighted average discount rate applied by the Federal Reserve Bank of San Francisco during the relevant time period plus 1%, or the maximum amount allowed by law, whichever is less.or
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Defaults Remedies. 21.01. The occurrence of any one or more of the following events shall constitute a default and breach of this lease by Tenant:
A. Failure to pay rent or any other required payment when due, if the failure continues for five (5) days after notice has been given to Tenant; provided, however, that any such notice shall be in lieu of, and not in addition to, any notice required under Section 1161, et seq., of the California Code of Civil Procedure;
B. Abandonment of the premises;
C. The failure by Tenant to observe or perform any other covenants, conditions or provisions of this lease to be observed or performed by Tenant where (except where a different period of time is specified in this lease) such failure shall continue for a period of thirty (30) days after written notice thereof from Landlord to Tenant; provided, however, that any such notice shall be in lieu of, and not in addition to, any notice required under Section 1161, 1161 et seq., of the California Code of Civil Procedure. If the nature of Tenant's default is such that more than thirty (30) days is reasonably required for its cure, then Tenant tenant shall not be deemed to be in default 36 39 if Tenant commences such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion;
D. The filing or occurrence of:
(1) a petition in bankruptcy by or against the Tenant, unless cured or removed within sixty (60) days;
(2) a petition or answer by Tenant seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution or other relief of the same or different kind under any provision of the Bankruptcy Act;
(3) adjudication of Tenant as a bankrupt or insolvent;
(4) an assignment of all or substantially all of Tenant's Tenants assets for the benefit of creditors;
(5) a petition or other proceeding, except by Landlord, its agents or affiliates, by or against Tenant, for, or the appointment of, a trustee, receiver, or liquidator of Tenant with respect to all or substantially all of its property; provided, however, that Tenant shall not be in default if Tenant cures or removes such a petition or proceeding within sixty (60) days;
(6) a petition or other proceeding by or against Tenant for its dissolution or liquidation, or the taking of possession of the property of Tenant by any governmental authority in connection with dissolution or liquidation, provided, however, that Tenant shall not be in default if Tenant cures or removes such a petition or proceeding within sixty (60) days;
(7) the taking or attachment by any person, except by Landlord or its agents or affiliates, of the leasehold created hereby or any part thereof upon execution, or other process of law or equity; or
(8) the general failure of Tenant to pay its debts as they become due, as such phrase is construed in connection with 11 U.S.C. Section 303(h)(1).
E. Except during such periods as renovations or reconstruction is in active progress, or as the premises are rendered unsafe or unusable, failure to make use of the premises for more than forty-five (45) days in any ninety (90) day period.
21.02. Notices given under Section 21.01 above shall specify the alleged default and the applicable lease provisions, and shall demand that Tenant perform the provisions of this lease or pay the rent that is in arrears, as the case may be, within the applicable period of time, or quit the premises. No such notice shall be deemed a forfeiture or a termination of this lease unless Landlord specifically so elects in the notice.
21.03. Landlord shall have the following remedies without further notice to Tenant if Tenant commits a default. These remedies are not exclusive; they are cumulative and in addition to any remedies now or later allowed by law:
A. Landlord can continue this lease in full force and effect, and the lease will continue in effect as long as Landlord does not terminate Tenant's right to possession, and Landlord shall have the right to collect rent when due. During the period Tenant is in default, Landlord can enter the premises and relet them, or any part of them, to third parties for Tenant's account. Tenant shall be liable immediately to Landlord for all costs Landlord incurs in reletting the premises, including, without limitation, brokers' commissions, expenses of remodeling the premises required by the reletting, and like costs. Reletting can be for a period shorter or longer than the remaining term of this lease. Tenant shall pay to Landlord the rent due under this lease on the dates the rent is due, less the rent Landlord receives from any reletting. No act by Landlord allowed by this section shall terminate 28 this lease unless Landlord notifies Tenant that Landlord elects to terminate this lease.
B. Landlord can terminate Tenant's right to possession of the premises at any time. No act by Landlord other than the giving of written notice to Tenant shall terminate this lease. Acts of maintenance, efforts to relet the premises, or the appointment of a receiver on Landlord's initiative to protect Landlord's interest under this lease shall not constitute a termination of Tenant's right to possession. On termination, Landlord has the right to recover from Tenant:
(1) The worth, at the time of the award of the unpaid rent that had been earned at the time of termination of this lease;
(2) The worth, at the time of the award of the amount by which the unpaid rent that would have been earned after the date of termination of this lease until the time of award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided;
(3) The worth, at the time of the award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided; and
(4) Any other amount, including court costs and attorneys' fees, necessary to compensate Landlord for all detriment proximately caused by Tenant's default. "The worth, at the time of the award," as used in (1) and (2) of this paragraph B is to be computed by allowing interest at that rate equal to the average weighted discount rate applied by the Federal Reserve Bank of San Francisco during the time period in question, plus 1%, or the maximum amount allowed by law, whichever is less. "The worth, at the time of the award,"as referred to in (3) of this paragraph B is to be computed by discounting the amount at the discount rate applied by the Federal Reserve Bank of San Francisco at the time of the award, plus 1%.
21.04. Landlord, at any time after Tenant commits a default, may, but is under no obligation to, cure the default at Tenant's cost. If Landlord at any time, by reason of Tenant's default, pays any sum or does any act that requires the payment of any sum, the sum paid by Landlord shall be due immediately from Tenant to Landlord at the same time the sum is paid and, if paid at a later date, shall bear interest from the date the sum is paid by Landlord until Landlord is reimbursed by Tenant at that rate equal to the weighted average discount rate applied by the Federal Reserve Bank of San Francisco during the relevant time period plus 1%, or the maximum amount allowed by law, whichever is less.in
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Sources: Office Lease (Harbor Bancorp /)
Defaults Remedies. 21.0125.01. The occurrence of any one or more of the following events shall constitute a material default and breach of this lease Lease by TenantTENANT:
A. Failure (a) The failure by TENANT to pay rent make any payment of Rent or any other payment required payment to be made by TENANT hereunder to LANDLORD or to pay Impositions, as and when due, if the where such failure continues shall continue for five a period of ten (510) days after receipt of written notice has been given thereof from LANDLORD to Tenant; provided, however, that any such notice shall be in lieu of, and not in addition to, any notice required under Section 1161, et seq., of the California Code of Civil ProcedureTENANT;
B. Abandonment of the premises;
C. (b) The failure by Tenant TENANT to observe or perform any other of the covenants, conditions or provisions of this lease Lease to be observed or performed by Tenant TENANT, other than as described in Paragraph (a), (c), (d) and (e) herein, where (except where a different period of time is specified in this lease) such failure shall continue for a period of thirty (30) days after written notice thereof from Landlord LANDLORD to TenantTENANT; provided, however, that any such notice shall be in lieu of, and not in addition to, any notice required under Section 1161, et seq., of the California Code of Civil Procedure. If if the nature of Tenant's TENANT’S default is such that more than thirty (30) days is are reasonably required for its cure, then Tenant TENANT shall not be deemed to be in default if Tenant TENANT commences such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion;
D. The filing or occurrence of:; or
(1i) The making by TENANT, or by any guarantor of TENANT’S obligations under this Lease, of any general arrangement or assignment for the benefit of creditors; (ii) TENANT or TENANT’S guarantor becoming a “debtor” as defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, in the case of a petition in bankruptcy by filed against TENANT or against TENANT’S guarantor, the Tenant, unless cured or removed same is dismissed within sixty (60) days;
); (2iii) the appointment of a petition trustee or answer by Tenant seeking a reorganizationreceiver to take possession of substantially all of TENANT’S assets located at the Demised Premises or of TENANT’S interest in this Lease, arrangementwhere possession is not restored to TENANT within thirty (30) days; or (iv) the attachment, composition, readjustment, liquidation, dissolution execution or other relief judicial seizure of substantially all of TENANT’S assets located a the same Demised Premises or different kind under of TENANT’S interest in this Lease, where such seizure is not discharged within thirty (30) days; provided, however, in the event that any provision of the Bankruptcy Act;this Paragraph 25.1(d) is contrary to any applicable law, such provision shall be of no force or effect.
(3d) adjudication Any guarantor of Tenant as a bankrupt or insolvent;this Lease is in default under any guaranty of this Lease.
(4e) an assignment A material failure by TENANT to perform in a manner consistent with the standard for Better Private Golf Clubs where such performance is required under this Lease, where such failure shall continue for a period of all or substantially all of Tenant's assets for the benefit of creditors;
thirty (530) a petition or other proceeding, except by Landlord, its agents or affiliates, by or against Tenant, for, or the appointment of, a trustee, receiver, or liquidator of Tenant with respect days after written notice thereof from LANDLORD to all or substantially all of its propertyTENANT; provided, however, that Tenant if the nature of TENANT’S default is such that more than thirty (30) days are reasonably required for its cure, then TENANT shall not be deemed to be in default if Tenant cures TENANT commences such cure within said period and thereafter diligently prosecutes such cure to completion. For purposes this Section 25.01(e), a material failure of TENANT shall mean a significant failure in TENANT’s performance and not isolated instances of employee neglect or removes such a petition or proceeding within sixty of service failures. The provisions of this subsection (60e) days;
(6) a petition or other proceeding by or against Tenant for its dissolution or liquidation, or the taking of possession of the property of Tenant by any governmental authority in connection with dissolution or liquidation, provided, however, that Tenant shall not be in default if Tenant cures or removes such a petition or proceeding within sixty (60) days;
(7) apply to all of TENANT’s obligations to maintain, repair and operate the taking or attachment by any person, except by Landlord or its agents or affiliates, of the leasehold created hereby or any part thereof upon execution, or other process of law or equityFacilities; or
(8) the general failure of Tenant to pay its debts as they become due, as such phrase is construed in connection with 11 U.S.C. Section 303(h)(1).
E. Except during such periods as renovations or reconstruction is in active progress, or as the premises are rendered unsafe or unusable, failure to make use of the premises for more than forty-five (45) days in any ninety (90) day period.
21.02. Notices given under Section 21.01 above shall specify only those obligations where the alleged default is failure to be “consistent with Better Private Golf Clubs” as required under this Lease.
25.02. In the event of any material default or breach by TENANT as set forth in Section 25.01 hereof LANDLORD may, except as provided in Section 25.03, at any time thereafter, with or without notice or demand and the applicable lease provisions, and shall demand that Tenant perform the provisions of this lease or pay the rent that is in arrears, as the case may be, within the applicable period of time, or quit the premises. No such notice shall be deemed a forfeiture or a termination of this lease unless Landlord specifically so elects without limiting LANDLORD in the notice.
21.03. Landlord shall exercise of any right or remedy which LANDLORD may have the following remedies without further notice to Tenant if Tenant commits a default. These remedies are not exclusive; they are cumulative and in addition to any remedies now by reason of such default or later allowed by lawbreach:
A. Landlord can continue this lease in full force and effect, and the lease will continue in effect as long as Landlord does not terminate Tenant's right to possession, and Landlord shall have the right to collect rent when due. During the period Tenant is in default, Landlord can enter the premises and relet them, or any part of them, to third parties for Tenant's account. Tenant shall be liable immediately to Landlord for all costs Landlord incurs in reletting the premises, including, without limitation, brokers' commissions, expenses of remodeling the premises required by the reletting, and like costs. Reletting can be for a period shorter or longer than the remaining term of this lease. Tenant shall pay to Landlord the rent due under this lease on the dates the rent is due, less the rent Landlord receives from any reletting. No act by Landlord allowed by this section shall terminate 28 this lease unless Landlord notifies Tenant that Landlord elects to terminate this lease.
B. Landlord can terminate Tenant's (a) Terminate TENANT’S right to possession of the premises at Facilities, with or without terminating the Lease, by any timelawful means (including self-help), in which case TENANT shall immediately surrender possession of the Facilities to LANDLORD. No act re-entry or retaking of possession of the Demised Premises by Landlord other than the giving of written notice LANDLORD shall be construed as an election on its part to Tenant shall terminate this leaseLease unless a notice of termination is given to TENANT. Acts of maintenanceShould LANDLORD elect to terminate this Lease, efforts to relet the premises, or the appointment of a receiver on Landlord's initiative to protect Landlord's interest under this lease LANDLORD shall not constitute a termination of Tenant's right to possession. On termination, Landlord has the right be entitled to recover from Tenant:
(1) The worthTENANT all damages incurred by LANDLORD by reason of TENANT’S default including, but not limited to, the cost of recovering possession of the Facilities; expenses of reletting, reasonable attorney’s fees, and; the worth at the time of award by the award of the unpaid rent that had been earned at the time of termination of this lease;
(2) The worth, at the time of the award court having jurisdiction thereof of the amount by which the unpaid rent that would have been earned Rent for the balance of the Term after the date of termination of this lease until the time of award such termination exceeds the amount of such Rental loss for the loss of rent same period that Tenant TENANT proves could have been be reasonably avoided;
(3b) The worthMaintain TENANT’S right to possession in which case this Lease shall continue in effect whether or not TENANT shall have abandoned the Demised Premises. In such event LANDLORD shall be entitled to enforce all of LANDLORD’S rights and remedies under this Lease, at including the time right to recover the Rent as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to LANDLORD under the laws or judicial decisions of the State of Ohio.
25.03. Notwithstanding anything in this Lease to the contrary, in the event that LANDLORD and TENANT are engaged in a bona fide dispute regarding a default under the Lease, LANDLORD shall not have any right to exercise the remedy provided in Section 25.02(a) or any right to enter upon and take possession of the Facilities or any right to expel or remove TENANT from the Facilities or any other right to disturb, restrict or remove TENANT from the use or possession of the Facilities unless and until LANDLORD undertakes the following procedures:
a) LANDLORD provides TENANT with written notice of the dispute;
b) LANDLORD shall submit the dispute to mediation and LANDLORD and TENANT shall undertake to resolve the dispute in mediation for a period of fifteen (15) days; and
c) In the event the dispute has not been resolved through mediation, LANDLORD shall submit the dispute to binding “final position” arbitration administered by the American Arbitration Association under its Rules for the Real Estate Industry, provided, however, that the arbitration shall be completed and the award of the amount arbitrator issued within sixty (60) days of submittal. Included in the arbitration award shall be a determination by which the unpaid rent for the balance arbitrator of the term after prevailing and non-prevailing party. The arbitrators shall be empowered to order specific performance of this Agreement. The arbitrators’ decision may only consist of the final position of one of the parties and may not vary therefrom.
d) In the event that LANDLORD is the prevailing party in arbitration, TENANT shall immediately remedy or otherwise cure the default in accordance with the award of the arbitrator. If TENANT shall fail to cure or remedy such default within fifteen (15) days of the arbitrator’s award, or, if the nature of TENANT’S remedy or cure is such that more than fifteen (15) days are reasonably required, TENANT shall fail to commence such cure within said period or fail to thereafter diligently prosecutes such cure to completion within the time period stipulated in the arbitration award, LANDLORD shall be entitled to immediately pursue the remedies provided in Section 25.02(a) or otherwise to enter upon and take possession of the Facilities or to expel or remove TENANT from the Facilities. With respect to any arbitration commenced in accordance with subsection c) above, the non-prevailing party shall pay and/or reimburse the prevailing party for: i) all costs, expenses and fees of the arbitrators, and ii) the prevailing party’s reasonable attorney fees and costs incurred with respect to the dispute from the submission to mediation until the award exceeds of the arbitrator. In addition, in the event that either party has been the non-prevailing party in arbitrations commenced in accordance with subsection c) above: (y) two (2) or more times on the same or substantially the same issue, or (z) three (3) or more times on any issue within any twenty-four (24) month period, then the non-prevailing party shall pay and or reimburse the prevailing party for: i) all costs, expenses and fees of the arbitrators, and ii) two (2) times the amount of the loss of rent that Tenant proves could have been reasonably avoided; and
(4) Any other amount, including court prevailing party’s reasonable attorney fees and costs and attorneys' fees, necessary incurred with respect to compensate Landlord for all detriment proximately caused by Tenant's default. "The worth, at the time dispute from the submission to mediation until the award of the award," as used in (1) and (2) of this paragraph B is arbitrator. The parties acknowledge that the provisions with respect to be computed by allowing interest at that rate equal to the average weighted discount rate applied by the Federal Reserve Bank of San Francisco during the time period in question, plus 1%, or the maximum amount allowed by law, whichever is less. "The worth, at the time of the award,"as referred to in (3) of this paragraph B is to be computed by discounting the amount at the discount rate applied by the Federal Reserve Bank of San Francisco at the time of the award, plus 1%.
21.04. Landlord, at any time after Tenant commits a default, may, but is under no obligation to, cure the default at Tenant's cost. If Landlord at any time, by reason of Tenant's default, pays any sum or does any act that requires the payment of any sum, the sum paid by Landlord shall be due immediately from Tenant attorney fees provided above are not a penalty but an attempt to Landlord at the same time the sum is paid and, if paid at a later date, shall bear interest from the date the sum is paid by Landlord until Landlord is reimbursed by Tenant at that rate equal to the weighted average discount rate applied by the Federal Reserve Bank of San Francisco during the relevant time period plus 1%, or the maximum amount allowed by law, whichever is lessdiscourage habitual noncompliance and frivolous disputes.
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