Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition to any and all other rights or remedies Landlord may have in connection with this Lease, as provided by law or equity, Landlord shall have the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damages.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Tuesday Morning Corp/De), Lease Agreement (Tuesday Morning Corp/De), Lease Agreement (Tuesday Morning Corp/De)
Events of Default Remedies. Each If any of the following occurrences shall constitute events (each, an “Event of Default”) shall occur and be continuing: (a) Tenant’s the failure of Borrower to pay Fixed Rental, or when due any other sums due from Tenant to Landlord payable under this Lease (provided, however, no such Event Note and the continuation of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s after written notice to Tenant Borrower from Lender requesting that Borrower cure such failure; (b) the failure of Borrower to perform material non-monetary obligations under the Note and/or Credit Documents and the continuation of such failure for more than thirty (30) days after written notice to Borrower from Lender requesting that Borrower cure such failure; provided, however, that the time for Borrower to perform the such non-monetary obligations shall be extended to ninety (90) days if Borrower commences the cure of the samepurported failure within thirty (30) days of receipt of the written notice from Lender; or (dc) the admission filing of any petition by Tenant in writing that it cannot meet its obligations as they become due or against the Borrower, or the making by Tenant commencement of an assignment any proceedings for the benefit relief or readjustment of its creditors. Any Event any indebtedness of Default shall be considered the Borrower, either through reorganization, composition, extension or otherwise, under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or the taking of any action by the Borrower to authorize any of the foregoing (provided that in the case of any petition or proceeding against Borrower filed or initiated by a breach party other than Borrower, only if such petition or proceeding remains undismissed, undischarged or unbonded for a period of ninety (90) days); then the Lender may declare this Lease by Tenant. In addition to Note, all interest hereon, and any and all other rights or remedies Landlord may have in connection with this Leaseamounts payable hereunder, as provided by law or equity, Landlord to be immediately due and payable (but the same shall have the following rights occur and remedies be automatic upon the occurrence of any Event of Default: Default under clause (a) without terminating c), whereupon this LeaseNote, to change the locks on the doors to the Premises all such interest and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any all such other amounts shall become and be immediately due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises payable, all without terminating this Leasepresentment, reenter and take possession of the Premises and remove all persons and property therefrom with protest, demand or without process of law, without being deemed guilty notice of any manner kind, all of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award which are expressly waived by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagesBorrower.
Appears in 2 contracts
Samples: Cardo Medical, Inc., Cardo Medical, Inc.
Events of Default Remedies. Each The occurrence of any one or more of the following occurrences shall constitute an “Event event of Default”default under this Instrument: (a) Tenant’s any failure by Borrower to pay Fixed Rental, when due any amount required by the Note or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year)Instrument; (b) Tenant’s any failure by Borrower to perform, comply with, or observe perform any other agreement or obligation of Tenant its obligations under this Lease, Instrument which failure is not cured within continues for a period of thirty (30) days after notice of written such failure by Lender to Borrower (but no such notice from Landlord (providedor grace period shall apply in the case of any such failure which could, howeverin Lender’s judgment, if Tenant commences such cure within such 30-day period and diligently pursues such cureabsent immediate exercise by Lender of a right or remedy under this Instrument, Tenant may have such additional time as may be reasonably necessary result in harm to effect such cure)Lender, impairment of the Note or this Instrument; or (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition to any and all other rights or remedies Landlord may have in connection with this Lease, as provided by law or equity, Landlord shall have the following rights and remedies upon the occurrence of any event of default under the note. At any time during the existence of an Event of Default: (a) , Lender, at Lender’s option, may declare the Indebtedness to be immediately due and payable without terminating further demand, and may invoke the power of sale and any other remedies permitted by applicable law or provided in this LeaseInstrument or the Note, including, but not limited to, commencing an action to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession appoint a receiver or specifically enforce any of the Premises and to re-let covenants hereto, sell the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant Mortgaged Property or any portion thereof or exercise any or all of the obligation remedies available to pay any Fixed Rental or any other amounts due a secured party under the terms Uniform Commercial Code. Borrower acknowledges that the power of sale granted in this Lease Instrument may be exercised by Lender without prior judicial hearing. Lender shall be entitled to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove collect all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of incurred in pursuing such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs of documentary evidence, abstracts and title reports. If Lender directs the Trustee to invoke the power of sale, Lender shall send to Borrower, in the manner provided in Section 27, notice of Lender’s election to cause the Mortgaged Property to be sold. Trustee shall give notice of sale and shall sell the Mortgaged Property according to the laws of the State of Mississippi to the highest and best bidder during legal hours, at any front door of the county courthouse of the county in which the Mortgaged Property is situated after having advertised for three consecutive weeks preceding the sale in a newspaper published in the county where the Mortgaged Property is situated, or if none is so published, then in some newspaper having general circulation therein, and by posting notice for the same time at the courthouse of the same county or in accordance with such other laws of the State of Mississippi governing sales of land under deeds of trust in force at the time the publication of said notice has begun. The advertisement and the notice shall disclose the original Borrower in this Instrument. Borrower waives the provisions of Miss. Code Xxx. § 89-1-55 as far as this section restricts the right of Trustee to offer at sale more than 160 acres at a time, and Trustee may offer the Mortgaged Property as a whole, regardless of how it is described. If the Mortgaged Property is situated in two or more counties or in two judicial districts of the same county, then the Trustee shall have power, in case the Trustee is directed to foreclose under this Instrument, to select in which county, or judicial district, the sale of all the Mortgaged Property shall be made, and the selection shall be binding upon the Borrower and the Lender and all persons claiming through or under them, whether by contract or by law. Should the Lender be a corporation or an unincorporated association, then any officer thereof may declare the Borrower to be in default as provided herein and request the Trustee to sell the Mortgaged Property. The Trustee may sell the Mortgaged Property at the time and place and under the terms designated in the notice of sale in one or more parcels and in such order as the Lender may determine. The Trustee may postpone sale of all or any parcel of the Mortgaged Property by public announcement subject to the provisions of Miss. Code Xxx. § 11-5-99 which sets forth the procedural requirements for the continuation of a sale. The Lender or Lender’s designee may purchase the Mortgaged Property at any sale. Trustee shall deliver to the purchaser at the sale, within a reasonable time after the sale, a deed conveying the Mortgaged Property so sold without any express or implied covenant or warranty. The recitals in Trustee’s deed shall be prima facie evidence of the truth of the statements made in those recitals. Trustee shall apply the proceeds of the sale in the following order: (a) to all costs and interest at expenses of the lesser sale, including Trustee’s fees not to exceed 5% of ten percent the gross sales price, attorneys’ fees and costs of title evidence; (10%b) to the Indebtedness in such order as Lender, in Lender’s discretion, directs; and (c) the excess, if any, to the person or persons legally entitled to it. Each right and remedy provided in this Instrument and the Note is district form all other rights or remedies under this Instrument or the maximum rate of interest allowed Note or afforded by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord each shall be applied (i) first to the payment of any indebtedness other than rent cumulative and may be exercised concurrently, independently or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premisessuccessively, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagesany order.
Appears in 2 contracts
Samples: Security Agreement and Fixture Filing, Security Agreement and Fixture Filing
Events of Default Remedies. Each 8.01 It will be a default hereunder if, at any time after the date hereof, any one of the following occurrences shall constitute events (herein called an “"Event of Default”") occurs: (a) Tenant’s failure to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless if Tenant fails to pay any installment of the Fixed Rent or Operating Expenses, or any part thereof, when same is due and payable and such sum within failure continues for five (5) Business Days days after receipt of a written notice of default from Landlordthe same is due and payable; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); or (b) Tenant’s failure if Tenant fails to perform, comply with, or observe pay any other agreement item of Additional Rent or obligation any other charges required to be paid by Tenant hereunder and such failure continues for ten (10) days after notice thereof from Landlord to Tenant; or (c) if Tenant fails to perform any of the requirements of this Lease (other than the payment of money) on the part of Tenant under this Lease, which to be performed or observed and such failure is not cured within continues for thirty (30) days of written after notice thereof from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; or (d) if Tenant allows the admission by Demised Premises to become vacant, deserted or abandoned for a period of twenty (20) days (the fact that any of Tenant's property remains in the Demised Premises shall not be evidence that Tenant in writing that it canhas not meet its obligations vacated or abandoned the Demised Premises) or if Tenant fails to keep the Demised Premises occupied to the extent necessary to maintain fire insurance coverage; or (e) if Tenant assigns, mortgages or encumbers this Lease, or sublets the Demised Premises, or any part thereof, other than as they become due expressly permitted hereunder; or the making by (f) if Tenant of makes an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease ; or (g) if any petition is filed by Tenant. In addition or against Tenant in any court, whether or not pursuant to any statute of the United States or of any State, in any bankruptcy, reorganization, extension, arrangement or insolvency proceedings, and with regard to a petition filed against Tenant the same is not dismissed within forty-five (45) days, provided that during such period Tenant continues to pay all Base Rent and all Additional Rent and performs all of its obligations under this Lease; or (h) if, a receiver or trustee is appointed for all or any substantial portion of Tenant's property, and with regard to a proceeding brought against Tenant the same is not dismissed in forty-five (45) days, provided that during such period Tenant continues to pay all Base Rent and all Additional Rent and performs all of its obligations under this Lease; or (i) if a petition or a proceeding is filed or commenced by or against Tenant for its dissolution or liquidation (other rights or remedies Landlord may have than in connection with this Leaseany merger permitted hereunder), as or if Tenant's property is taken by any governmental authority in connection with a dissolution or liquidation, and with regard to a petition filed or commenced against Tenant the same is not dismissed within forty-five (45) days, provided by law or equity, Landlord shall have the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude that during such period Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation continues to pay any Fixed Rental or any other amounts due under the terms all Base Rent and all additional rent and performs all of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s its obligations under this Lease the net rental received Lease; or (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of j) if a levy under judgment against Tenant is not satisfied or bonded within thirty (i30) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagesdays.
Appears in 2 contracts
Samples: Lease Agreement (Windsortech Inc), Lease Agreement (Windsortech Inc)
Events of Default Remedies. Each of the following occurrences shall constitute If an “Event of Default”: (a) Tenant’s failure to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under and be continuing, the principal of all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture. As provided in and subject to the provisions of the Indenture, the Holder of this subparagraph (a) Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless Tenant fails such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to pay the Securities, the Holders of not less than 25% in principal amount of the Securities at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity reasonably satisfactory to it and the Trustee shall not have received from the Holders of a majority in principal amount of the Securities at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such sum within five (5) Business Days proceeding, for 90 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein (or, in the case of redemption, on or after the date of redemption). No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed. REGISTRATION OF TRANSFER; EXCHANGE As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Issuer in the Borough of Manhattan, The City of New York, duly endorsed by, or accompanied by a written notice instrument of default from Landlord; providedtransfer in form satisfactory to the Issuer and the Security Registrar duly executed by, however, that such notice shall not be required more than two (2) times the Holder hereof or his attorney duly authorized in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10writing, and such failure continues for thereupon one or more than ten (10) days following Tenant’s receipt new Securities, of Landlord’s written notice to Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition to any authorized denominations and all other rights or remedies Landlord may have in connection with this Lease, as provided by law or equity, Landlord shall have the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which aggregate principal amount, will be issued to the Tenant proves could have been reasonably avoideddesignated transferee or transferees. The Securities are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called Securities are exchangeable for under this Lease for the balance of the term after the time of such award exceeds the a like aggregate principal amount of such Fixed Rental loss for Securities of a different authorized denomination, as requested by the same period that Tenant proves could be reasonably avoided. The worth at Holder surrendering the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagessame.
Appears in 2 contracts
Samples: Lexmark International Inc, Lexmark International Inc /Ky/
Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure The following events shall be deemed to pay Fixed Rental, or any other sums due from be events of default by Tenant to Landlord under this Lease Lease: (provided, however, no such Event of Default i) Tenant shall occur under this subparagraph (a) unless Tenant fails fail to promptly pay any such rent or other sum of money due hereunder within five (5) Business Days days after receipt of a written notice from Landlord to Tenant of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year)failure; (bii) Tenant’s failure Tenant shall fail to perform, comply with, or observe with any other agreement or obligation provision of Tenant under this Lease, which failure is not cured Lease within thirty (30) days after receipt of written notice from Landlord (provided, howeverto Tenant of such failure or, if Tenant commences such failure shall be incapable of cure within thirty (30) days, Tenant shall not commence to cure such failure within such thirty (30-) day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary continuously prosecute the performance of the same to effect such cure)completion with due diligence; (ciii) the leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant’s failure to perform any ; (iv) a default or event of default shall occur under that certain Lease dated August 29, 1984 between Landlord and Tenant, as amended by the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant amendments thereof existing as of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant date of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition to any and all other rights or remedies Landlord may have in connection with this Lease, and as provided by law or equity, Landlord shall have the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefromthereafter amended; (bv) terminate this Lease Tenant shall fail to promptly move into and take possession of the Premises and to re-let when the Premises are ready for the Landlord’s account (no termination of this Lease occupancy, or shall relieve the Tenant of the obligation to pay abandon any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any substantial portion of the Premises; (vi) Tenant shall become insolvent or unable to pay its debts as they become due, including or Tenant notifies Landlord that it anticipates either condition; (vii) Tenant takes any action to, or notifies Landlord that Tenant intends to file a petition under section or chapter of the cost National Bankruptcy Act, as amended, or under any similar law or statute of removing and storing the United States or any state thereof; or a petition shall be filed against Tenant under any such statute; or (viii) a receiver or trustee shall be appointed for Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making 's leasehold interest in the Premises ready or for all or a new tenant, including the cost of leasehold improvements. Upon any re-letting substantial part of the Premises by Landlordassets of Tenant. If Landlord shall not be permitted to terminate this Lease as hereinabove provided because of the provisions of Title II, all rent received of the United States Code relating to Bankruptcy as amended ("Bankruptcy Code"), then Tenant or any trustee for Tenant agrees promptly, within no more than sixty (60) days upon request by Landlord shall be applied (i) first to the payment of any indebtedness other than rent Bankruptcy Court, to assume or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under reject this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damages.such
Appears in 2 contracts
Samples: Sublease Agreement (Landacorp Inc), Sublease Agreement (Landa Management Systems Corp)
Events of Default Remedies. Each Except as to those specific notices and cure periods, if any, particularly set forth elsewhere herein, the breach by either party (“Defaulting Party”) hereto of any term, provision, condition, promise, covenant, agreement, representation, warranty, guaranty, indemnity, duty or obligation if not cured within five (5) business days of the following occurrences earlier of said Defaulting Party’s receipt or refusal of written notice of the same from the other party (“Non-Defaulting Party”) hereto shall constitute automatically and without further notice hereunder be an immediate event of default (“Event of Default”: (a) Tenant’s failure entitling the Non- Defaulting party to pay Fixed Rentalexercise any and all remedies available to it hereunder or in law or equity, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in if a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease, which failure non-monetary breach is not reasonably capable of being cured within the aforesaid five (5) business days but the Defaulting Party promptly commences to cure within said period, within said period notifies the non-defaulting party in writing of the commencement of said cure, and thereafter diligently pursues the same to conclusion and successfully completes said cure within thirty (30) calendar days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s its first receipt of Landlordnotice of said breach or violation, it shall not be an event of default hereunder. Subject to the provisions of section 24, to the extent permitted under governing law, the Non-Defaulting party’s written notice to Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default rights and remedies hereunder shall be considered a breach cumulative and not mutually exclusive and to the extent permitted under governing law and subject to section 24 the exercise by the Non-Defaulting party of this Lease by Tenant. In addition to any and all other one or more rights or remedies Landlord may have granted it hereunder or in connection with this Leaselaw or equity shall not be deemed, interpreted or construed as provided by an election of the same or to bar, prevent or preclude the simultaneous or consecutive exercise of any other right or remedy granted to the Non-Defaulting party hereunder or in law or equity, Landlord including but not limited to the simultaneous or successive pursuit of money damages and injunctive relief. The Non-Defaulting party shall have the following rights and remedies upon the occurrence not be required to post any bond, surety or security of any Event of Default: (a) without terminating this Leasenature whatsoever to pursue injunctive relief, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental necessity or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss requirement for the same period which being hereby waived by the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagesDefaulting Party.
Appears in 2 contracts
Samples: Operations Transfer Agreement, Operations Transfer Agreement
Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure The following events shall be deemed to pay Fixed Rental, or any other sums due from be events of default by Tenant to Landlord under this Lease Lease: (provided, however, no such Event of Default i) Tenant shall occur under this subparagraph (a) unless Tenant fails fail to promptly pay any such rent or other sum of money due hereunder within five (5) Business Days days after receipt of a written notice from Landlord to Tenant of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year)failure; (bii) Tenant’s failure Tenant shall fail to perform, comply with, or observe with any other agreement or obligation provision of Tenant under this Lease, which failure is not cured Lease within thirty (30) days after receipt of written notice from Landlord (provided, howeverto Tenant of such failure or, if Tenant commences such failure shall be incapable of cure within thirty (30) days, Tenant shall not commence to cure such failure within such thirty (30-) day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary continuously prosecute the performance of the same to effect such cure)completion with due diligence; (ciii) the leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant’s failure to perform any ; (iv) a default or event of default shall occur under that certain Lease dated August 29, 1984 between Landlord and Tenant, as amended by the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant amendments thereof existing as of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant date of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition to any and all other rights or remedies Landlord may have in connection with this Lease, and as provided by law or equity, Landlord shall have the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefromthereafter amended; (bv) terminate this Lease Tenant shall fail to promptly move into and take possession of the Premises and to re-let when the Premises are ready for occupancy, or shall abandon any substantial portion of the Landlord’s account Premises; (no termination vi) Tenant shall become insolvent or unable to pay its debts as they become due, or Tenant notifies Landlord that it anticipates either condition; (vii) Tenant takes any action to, or notifies Landlord that Tenant intends to file a petition under section or chapter of the National Bankruptcy Act, as amended, or under any similar law or statute of the United States or any State thereof; or a petition shall be filed against Tenant under any such statute; or (viii) a receiver or trustee shall be appointed for Tenant's leasehold interest in the Premises or for all or a substantial part of the assets of Tenant. If Landlord shall not be permitted to terminate this Lease shall relieve the Tenant as hereinabove provided because of the obligation provisions of Title II, of the United States Code relating to pay any Fixed Rental Bankruptcy as amended ("Bankruptcy Code"), then Tenant or any other amounts due under trustee for Tenant agrees promptly, within no more than sixty (60) days upon request by Landlord to the terms Bankruptcy Court, to assume or reject this Lease. In such event. Tenant or any trustee of Tenant may assume this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of only if it (i) cures or provides adequate assurance that the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) trustee will promptly cure any default hereunder and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, compensates or provides adequate assurance that Tenant shall be required to pay all expenses reasonably incurred by will promptly compensate Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay for any actual pecuniary loss to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease resulting from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damages's default.
Appears in 2 contracts
Samples: Sublease Agreement (Landa Management Systems Corp), Sublease Agreement (Landacorp Inc)
Events of Default Remedies. Each An event of the following occurrences shall constitute an default (“Event of Default”: (a) Tenant’s failure to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default Agreement shall occur under this subparagraph (a) unless Tenant if either Party fails to pay comply with any of the covenants or obligations hereunder and does not cure such sum within five (5) Business Days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days after receipt of written notice from Landlord thereof (provided, however, if Tenant commences or fails to commence to cure such cure default within such thirty (30-) day period and diligently pursues thereafter fails to proceed with due diligence to cure such cure, Tenant may have such additional time as may be reasonably necessary to effect such curedefault); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; or (d) the admission by Tenant in writing . The Parties agree that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition to any and all other rights or remedies Landlord may have in connection with this Lease, as provided by law or equity, Landlord shall have the following rights and remedies upon the occurrence of any an Event of Default: (a) without terminating this LeaseDefault hereunder, VCTC may pursue all remedies at law or in equity. It is expressly understood by the Parties that such remedies shall include VCTC’s right, in its sole discretion, to change terminate the locks on Easement(s) of the doors defaulting Developer or assignee and to require the defaulting Developer or assignee to quitclaim one or more of its Easements to VCTC and comply with the requirements of this Section 18 only as and to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession extent such termination is as a result of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages a Termination Default (as defined below); and (c) Landlord may terminate Tenant’s by Developer or such assignee. If VCTC exercises its right to possession terminate pursuant to this Section 18, the affected Easement(s) shall be quitclaimed from Developer or the applicable assignee to VCTC without expense to VCTC, and any and all interest in the VCTC Property conveyed to Developer or any assignee of Developer in the Premises without terminating this Lease, reenter Easement(s) shall automatically revert to VCTC or its assigns and take possession of the Premises and remove all persons and property therefrom with or without process of lawsuccessors, without being deemed guilty the necessity of any manner further action to effect such reversion. All Easements not so terminated shall remain in full force and effect unless or until terminated in accordance with this Agreement. The Parties further agree that upon an Event of trespass and without prejudice Default by VCTC, Developer’s or any assignee’s sole remedy is to any remedies for arrears require specific performance by VCTC of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of TenantVCTC’s obligations under this Lease Agreement. Notwithstanding any other provision of this Agreement, from and after the net rental received (after deducting therefrom all reasonable costs and expenses first assignment by Developer of repossessingan Easement and/or improvements to an assignee pursuant to Section 16, leasing, managingneither Developer nor any assignee shall be responsible for any act or omission of any other Party to this Agreement, and operating no action by any Party shall constitute a default of or affect any rights or benefits afforded to any non-defaulting Party(ies) nor shall it subject the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (inon-defaulting Party(ies) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of terminationto any obligations, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) liability or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting responsibility (including brokerage fees and attorney’s fees and costs of alterations and repairsany indemnity obligations), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damages.
Appears in 2 contracts
Samples: Construction and Non Exclusive Easement Agreement, Construction and Non Exclusive Easement Agreement
Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure The following events shall be deemed to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice be events of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of by Tenant under this Lease, which failure is not cured within thirty : (30i) days Tenant shall fail to promptly pay any rent or other sum of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure)money due hereunder; (cii) Tenant’s failure Tenant shall fail to perform comply with any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach provisions of this Lease by Tenant. In addition to or any other agreement between Landlord and Tenant including the Work Letter all other rights or remedies Landlord may have in connection with this Leaseof which terms, as provided by law or equity, Landlord provisions and covenants shall have the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrombe deemed material; (biii) terminate this Lease the leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant; (iv) Tenant shall fail to promptly move into and take possession of the Premises and to re-let when the Premises are ready for occupancy, or shall cease to do business in or abandon any substantial portion of the Landlord’s account Premises; (no termination v) Tenant shall become insolvent or unable to pay its debts as they become due, or Tenant notifies Landlord that it anticipates either condition; (vi) Tenant takes any action to, or notifies Landlord that Tenant intends to file a petition under any section or chapter of the National Bankruptcy Act, as amended, or under any similar law or statute of the United States or any State thereof; or a petition will be filed or Tenant notifies Landlord that it expects such a petition to be filed; or (vii) a receiver or trustee shall be appointed for Tenant's leasehold interest in the Premises or for all or a substantial part of the assets of Tenant. If Landlord shall not be permitted to terminate this Lease shall relieve the Tenant as hereinabove provided because of the obligation provisions of Title II, of the United States Code relating to pay any Fixed Rental Bankruptcy as amended ("Bankruptcy Code"), then Tenant or any other amounts due under trustee for Tenant agrees promptly, within no more than fifteen (15) days upon request by Landlord to the terms of Bankruptcy Court, to assume or reject this Lease prior and Tenant agrees not to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with seek or without process of law, without being deemed guilty request any extension or adjournment of any manner of trespass and without prejudice application to any remedies for arrears of the Fixed Rental assume or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under reject this Lease the net rental received (after deducting therefrom all reasonable costs and expenses by Landlord with such Court. In such event, Tenant or any trustee of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of Tenant may assume this Section means the worth at the time of award by the court having jurisdiction thereof of Lease only if it (i) cures or provides adequate assurance that the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of terminationtrustee will promptly cure any default hereunder, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%)compensates or provides adequate assurance that Tenant will promptly compensate Landlord for any actual pecuniary loss to Landlord resulting from Tenant's default. In addition the event of a filing of a petition under the Bankruptcy Code, Landlord shall have no obligation to the foregoing remediesprovide Tenant with heating, ventilating and air conditioning services, or utilities, janitorial, maintenance or security services, if any, unless Tenant shall have paid and be required to pay current in all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser payments of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges rents due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damageshereunder.
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Events of Default Remedies. Each of the following occurrences shall constitute an “"Event of Default”": (a1) Tenant’s failure by Lessee to pay Fixed Rental, or make any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum payment within five (5) Business Days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt after its due date; (2) failure by Lessee to perform any other obligation under this Agreement, and the continuance of Landlord’s such default for ten (10) days after written notice thereof by Lessor to Tenant Lessee; (3) any material misrepresentation or false statement of fact by Lessee; (4) the loss, theft, damage, destruction or the attempted sale or encumbrance by Xxxxxx of any of the sameEquipment; or (d5) the admission by Tenant in writing that it cannot meet its obligations as they become due Lessee's dissolution, termination of existence, discontinuance of business, insolvency, or the making commencement of any bankruptcy proceedings by Tenant of an assignment for the benefit of its creditorsor against, Xxxxxx. Any Xxxxxx acknowledges that any Event of Default shall be considered a breach will substantially impair the lease value of this Lease by Tenantthe Equipment hereof. In addition to any and all other rights or remedies Landlord may have in connection with this Lease, as provided by law or equity, Landlord shall have the following rights and remedies upon Upon the occurrence of any Event of Default, Lessor may, without notice, exercise one or more of the following remedies: (a1) without terminating declare all unpaid payments under this Lease, Agreement to change the locks on the doors to the Premises be immediately due and to exclude Tenant therefrompayable; (b2) terminate this Lease and Agreement as to any or all items of the Equipment; (3) take possession of the Premises Equipment wherever found, and for this purpose enter upon any premises of Lessee and remove the Equipment, without any liability to re-let Lessee; (4) direct Lessee at its expense to promptly prepare the Premises Equipment for the Landlord’s account pickup by Lessor; (no termination 5) proceed by appropriate action either in law or in equity to enforce performance by Lessee of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior Agreement or to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all damages for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Leasebreach hereof, including attorneys’ fees, court costs ' fees and interest at the lesser of ten percent (10%) any other expenses paid or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) Lessor in connection with the repossession of the Equipment; (6) apply the security deposit specified in this LeaseAgreement ("Security Deposit") to payment of Lessor's costs, expenses and attorney fees in enforcing the terms of this Agreement and to indemnify Lessor against any damages sustained by Lessor; and/or (7) recover the replacement cost of any Equipment which Lessor is unable to repossess. Landlord Lessor's waiver of any Event of Default shall use commercially reasonable efforts not constitute a waiver of any other Event of Default or of any term or condition of this Agreement. No right or remedy referred to mitigate damagesherein is intended to be exclusive and each may be exercised concurrently or separately and from time to time. In the event of repossession, Lessee waives any bond posting requirement.
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Samples: www.mobilemodular.com
Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure Except in the event of an emergency and after the expiration of any applicable grace periods, the following events shall be deemed to be events of default by Tenant under this Lease: (i) Tenant shall fail to pay Fixed Rental, any rent or any other sums of money due from Tenant to Landlord under this Lease (provided, however, no hereunder and such Event failure shall continue for a period of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days business days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year)the date sum is due; (bii) Tenant’s failure Tenant shall fail to perform, comply with, with any material provision of this Lease or observe any other agreement or obligation of between Landlord and Tenant under this Lease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure)including the Work Letter; (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; or (diii) the admission by leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant; (iv) Tenant shall fail to promptly move in writing that it cannot meet or take possession of and operate its obligations business on the Premises when the Premises are ready for occupancy; (v) Tenant shall become insolvent or unable to pay its debts as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition to any and all other rights or remedies notifies Landlord may have in connection with this Lease, as provided by law or equity, Landlord shall have the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefromthat it anticipates either condition; (bvi) terminate this Lease and take possession of the Premises and Tenant takes any action to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) notifies Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred intends to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate file a petition under any section or chapter of the Federal Reserve Bank Bankruptcy Act as amended, or under any similar law or statute of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remediesUnited States or any State thereof, Tenant or a petition shall be required filed against Tenant under any such statute or Tenant or any creditor of Tenant notifies Landlord that it knows such a petition will be filed or Tenant notifies Landlord that it expects such a petition to pay all expenses reasonably incurred by Landlord be filed; or (vii) a receiver or trustee shall be appointed for Tenant's leasehold interest in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) Premises or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting for all or any portion a substantial part of the Premises, including the cost assets of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damages.
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Samples: Office Lease Agreement (Zix Corp)
Events of Default Remedies. Each 28.1 The following events shall be deemed to be events of the following occurrences shall constitute an “Event of Default”default by Tenant under this Lease: (ai) Tenant’s failure to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt installment of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, Base Rent or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, Additional Rent when due and such failure continues for more than ten five (105) days following Tenant’s receipt of Landlord’s after Tenant is given written notice of such failure (provided, however, Tenant shall not be entitled to such notice and cure period more than twice in any calendar year during the Lease Term); (ii) Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach fails to comply with any provision of this Lease by Tenant. In addition (other than clauses (iii), (iv), (v), and (vi) in this Paragraph 28.1), all of which terms, provisions and covenants shall be deemed material and such failure continues for more than thirty (30) days after Tenant is given written notice of such failure, unless such failure cannot be reasonably cured within said thirty (30) day period and Tenant has begun and continues to any cure said failure, in which case Tenant shall be provided an additional period, not to exceed sixty (60) days from the initial notice, prior to an event of default being called (provided such 30-day notice and all other rights cure period for non-monetary defaults shall be decreased or remedies Landlord may have in connection with this Leasedispensed with, as provided reasonably required, in cases of emergency or in circumstances where such failure will result in a default by law or equity, Landlord shall have under other leases of space in the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined belowBuilding); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount leasehold hereunder demised is taken on execution or other process of law in any action against Tenant by which the unpaid Fixed Rental and other charges and adjustments called for a third party creditor; (iv) Tenant becomes insolvent or unable to pay its debts as they become due, or Tenant notifies Landlord that it anticipates either condition; (v) Tenant takes any action to or notifies Landlord that Tenant intends to file a petition under this Lease for the balance any section or chapter of the term after the United States Bankruptcy Code, as amended from time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award to time, or under any similar law or statute of the sums referred to United States or any State thereof; or a petition shall be filed against Tenant under any such statute or Tenant which involuntary petition is not dismissed within ninety (90) days; (vi) a receiver or trustee is appointed for Tenant’s leasehold interest in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate Premises or for all or a substantial part of the Federal Reserve Bank assets of San Francisco at the time Tenant and Tenant has been unable to have said receiver or trustee removed within ninety (90) days of award plus one percent (1%)its appointment. In addition to Provided, however, and notwithstanding the foregoing remediesprovisions in this Paragraph 28.1, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant not be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent notice and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) cure period in connection with this Lease. Landlord shall use commercially reasonable efforts Tenant’s obligation to mitigate damagesvacate the Premises at the end of the Lease Term.
Appears in 1 contract
Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure The following events shall be deemed to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice be events of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of by Tenant under this Lease, which failure is not cured within thirty : (30i) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary shall fail to effect such cure); (c) Tenant’s failure to perform comply with any of the obligations of Tenant in the manner set forth in Section 10terms, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; provisions or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach covenants of this Lease by or any other agreement between Landlord and Tenant. In addition , all of which terms, provisions and covenants shall be deemed material; (ii) the leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant; (iii) Tenant notifies Landlord, at any time prior to any and all other rights or remedies Landlord may have in connection with this Leasethe Commencement Date, as provided by law or equity, Landlord shall have that Tenant does not intend to take occupancy of the following rights and remedies Premises upon the occurrence commencement of any Event of Default: (a) without terminating this Lease, the Lease Term; Tenant shall fail to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease promptly move into and take possession of the Premises and to re-let when the Premises are ready for the Landlord’s account (no termination of this Lease occupancy or shall relieve the Tenant of the obligation cease to pay do business in or abandon any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any substantial portion of the Premises; (iv) Tenant shall become insolvent or unable to pay its debts as they become due, including or Tenant notifies Landlord that it anticipates either condition; (v) Tenant takes any action or notifies Landlord that Tenant intends to file a petition under any section or chapter of the cost Bankruptcy Act, as amended from time to time, or under any similar law or statute of removing and storing the United States or any State thereof; or a petition shall be filed against Tenant under any such statute or Tenant or any creditor of Tenant’s personal property and other property, repairing the Premises, removing and/or replacing 's notifies Landlord that it knows such a petition will be filed or Tenant notifies Landlord that it expects such a petition to be filed; or (vi) a receiver or trustee shall be appointed for Tenant’s signage, and making 's leasehold interest in the Premises ready or for all or a new tenant, including the cost of leasehold improvements. Upon any re-letting substantial part of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment assets of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damages.
Appears in 1 contract
Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform If any of the obligations of Tenant in the manner set forth in Section 10Liabilities are not paid at maturity, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; whether by acceleration or (d) the admission otherwise, or if a default occurs by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition to any and all other rights or remedies Landlord may have in connection with this Lease, as provided by law or equity, Landlord shall have the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due anyone under the terms of this Lease prior to termination) and recover Mortgage or any Related Document, then the Landlord’s Liquidated Damages (as defined below); and (c) Landlord Mortgagee may terminate Tenant’s right to possession exercise all of the Premises without terminating this Leaserights, reenter powers and take possession of the Premises and remove all persons and property therefrom with remedies expressly or without process of law, without being deemed guilty of any manner of trespass and without prejudice impliedly conferred on or reserved to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations it under this Lease Mortgage or any other Related Document, or now or later existing at law or in equity, including without limitation the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of following: (i) the unpaid Fixed Rental and other charges and adjustments called for under Mortgagee may declare the Lease which had been earned at the time of terminationLiabilities to be immediately due, (ii) the amount by which Mortgagee may proceed at law or in equity to collect the unpaid Fixed Rental and Liabilities, foreclose this Mortgage or otherwise pursue any of its rights or remedies available at law, in equity, pursuant to this Mortgage or pursuant to any of the other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, Related Documents and (iii) the Mortgagee may exercise any of its rights, powers or remedies pursuant to the UCC. The Mortgagee shall be entitled to the appointment of a receiver for the Premises as a matter of right and without notice (without regard to the value of the Premises) and the Mortgagor specifically consents to that appointment without notice. Without limitation, the receiver shall have the power to protect and preserve the Premises, operate the Premises prior to and during any foreclosure proceedings, to collect the Rents and apply the proceeds, over and above the costs of the receivership, to the Liabilities. The receiver shall serve without bond, if permitted by law. The Premises may be sold in one parcel as an entirety or in such parcels, manner and order as the Mortgagee may elect. The proceeds of any sale of the Premises in foreclosure shall be retained by the Mortgagee, up to the amount due on the Liabilities, including costs of sale and any environmental remediation or other costs and expenses incurred by the Mortgagee in connection with the Liabilities and/or the Premises, including without limitation, attorneys' fees and court costs. By executing this Mortgage, the Mortgagor waives, in the event of a foreclosure of this Mortgage or the enforcement by the Mortgagee of any other rights and remedies in this Mortgage, any right otherwise available in respect to marshalling of assets which secure the unpaid Fixed Rental Liabilities or to require the Mortgagee to pursue its remedies against any other such assets. The Mortgagor waives all errors and other charges imperfections in any proceedings instituted by the Mortgagee to enforce any of its rights and adjustments called for remedies. The exercise of any one right or remedy by the Mortgagee under this Lease for the balance Mortgage or any of the term after other Related Documents shall not impair or waive the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth Mortgagee's right to exercise any other rights or remedies available to it at the time of award law, in equity, under this Mortgage or under any of the sums referred to in subsections (i) other Related Documents, all such rights and (ii) aboveremedies being cumulative. All fees, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all costs and expenses reasonably incurred by Landlord the Mortgagee in pursuing or enforcing its rights and remedies at law, in equity, under this LeaseMortgage or under any of the other Related Documents, whether or not a lawsuit or legal action is filed, including attorneys’ fees' fees and court costs, court costs and interest at shall be payable by the lesser of ten percent (10%) or Mortgagor to the maximum rate of interest allowed by applicable law, Mortgagee on demand and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred be secured by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagesMortgage.
Appears in 1 contract
Samples: Blackwater Midstream Corp.
Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure The following events shall be deemed to pay Fixed Rentalbe, or any other sums due from Tenant to Landlord under this Lease (providedbut are not exclusively, however, no such Event "Events of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Default" by Tenant under this Lease: (i) Tenant shall fail to pay any Rent or other sum of money when due under this Lease; (ii) Tenant shall fail to comply with any provision of this Lease or any other agreement between Landlord and Tenant not requiring the payment of money (all of which terms, which provisions, and covenants shall be deemed material) and such failure shall continue for a period of 15 days after written notice of such default is delivered to Tenant; or if such failure could not reasonably be cured within thirty (30) days of written notice from Landlord (providedsuch period, however, if Tenant commences shall have failed to commence such cure within such 30-day period and diligently pursues or thereafter failed to prosecute with diligence such curecure to completion, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant but in the manner set forth in Section 10, and such failure continues for more no event later than ten (10) 60 days following Tenant’s receipt of after Landlord’s written 's initial notice to Tenant of the samesuch failure; or (diii) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default leasehold hereunder demised shall be considered a breach taken by execution or other process of this Lease by law in any action against Tenant. In addition ; (iv) Tenant notifies Landlord, at any time prior to any and all other rights or remedies Landlord may have in connection with this Leasethe Rent Commencement Date, as provided by law or equity, Landlord shall have that Tenant does not intend to take occupancy of the following rights and remedies Premises upon the occurrence of any Event of Default: (a) without terminating this LeaseRent Commencement Date, or Tenant shall fail to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease promptly move into and take possession of the Premises and to re-let when the Premises are ready for occupancy or shall cease to do business in or abandon any substantial portion of the Landlord’s account Premises; (no termination v) Tenant shall become insolvent or unable to pay its debts as they become due, or Tenant notifies Landlord that it anticipates either condition; (vi) Tenant or any guarantor takes any action to, or notifies Landlord that Tenant or any guarantor intends to file a petition under any section or chapter of the Bankruptcy Code, as amended from time to time, or under any similar law or statute of the United States or any State thereof, or a petition shall be filed against Tenant or any guarantor under any such statute, or Tenant or any guarantor or any creditor of Tenant notifies Landlord that it knows such a petition will be filed, or Tenant or any guarantor notifies Landlord that it expects such a petition to be filed; (vii) a receiver or trustee shall be appointed for Tenant's leasehold interest in the Premises or for all or a substantial part of the assets of Tenant or any guarantor; (viii) Tenant shall make any assignment of this Lease shall relieve the Tenant or sublease of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the PremisesPremises without Landlord's prior consent in violation of the terms of this Lease; (ix) Tenant shall remove or permit the removal of any furniture, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making fixtures or equipment from the Premises ready for a new tenantother than in the normal course of business without replacing same with replacement furniture, including fixtures or equipment of at least equivalent value; (x) Tenant or any agent of Tenant falsifies any report or misrepresents other information required to be furnished to Landlord pursuant to this Lease; (xi) the cost death of leasehold improvements. Upon Tenant or any re-letting guarantor of Tenant's obligations; or the commencement of steps or proceedings toward the dissolution, winding up, or other termination of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to existence of the payment Tenant or of any indebtedness other than rent guarantor of the Tenant's obligations, or other charges due under this Lease from Tenant, toward the liquidation of either of their respective assets; (iixii) second to the payment occurrence of any reasonable and related costs and expenses other event described as a default elsewhere in the Lease or any amendment thereto, regardless of whether such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess is defined as one of the rent and other charges payable under Events of Default in this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagesParagraph.
Appears in 1 contract
Events of Default Remedies. Each SECTION 8.1 It will be a default hereunder if, at any time after the date hereof, any one of the following occurrences shall constitute events (herein called an “Event "event of Default”default") occurs: (a) Tenant’s failure to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless if Tenant fails to pay any installment of the Base Rent or Operating Expenses, or any part thereof, when same is due and payable and such sum within failure continues for five (5) Business Days days after receipt of a written notice of default from Landlordthe same is due and payable; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); or (b) Tenant’s failure if Tenant fails to perform, comply with, or observe pay any other agreement item of additional rent or obligation any other charges required to be paid by Tenant hereunder and such failure continues for ten (10) days after notice thereof from Landlord to Tenant; or (c) if Tenant fails to perform any of the requirements of this Lease (other than the payment of money) on the part of Tenant under this Lease, which to be performed or observed and such failure is not cured within continues for thirty (30) days of written after notice thereof from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; or (d) if Tenant allows the admission by Demised Premises to become vacant, deserted or abandoned for a period of twenty (20) days (the fact that any of Tenant's property remains in the Demised Premises shall not be evidence that Tenant in writing that it canhas not meet its obligations vacated or abandoned the Demised Premises) or if Tenant fails to keep the Demised Premises occupied to the extent necessary to maintain fire insurance coverage; or (e) if Tenant assigns, mortgages or encumbers this Lease, or sublets the Demised Premises, or any part thereof, other than as they become due expressly permitted hereunder; or the making by (f) if Tenant of makes an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease ; or (g) if any petition is filed by Tenant. In addition or against Tenant in any court, whether or not pursuant to any statute of the United States or of any State, in any bankruptcy, reorganization, extension, arrangement or insolvency proceedings, and with regard to a petition filed against Tenant the same is not dismissed within forty-five (45) days, provided that during such period Tenant continues to pay all Base Rent and all other rights or remedies Landlord may have in connection with this Lease, as provided by law or equity, Landlord shall have the following rights additional rent and remedies upon the occurrence performs all of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s its obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damages.; or
Appears in 1 contract
Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s The following events shall be deemed to be events of default by Tenant under this Lease: (i) Tenant shall fail to comply with any provisions of this Lease or any other agreement between Landlord and Tenant all of which terms, provisions and covenants shall be deemed material and such failure to pay Fixed Rentalshall continue, if default in payment of Base Rental or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within hereunder for five (5) Business Days business days after receipt of a written notice of to Tenant, and if such default from Landlord; provided, however, that such notice is a non-monetary default it shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within continue for thirty (30) days of following written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary thereof to effect such cure)Tenant; (c) Tenant’s failure to perform any of notwithstanding the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition to any and all other rights or remedies Landlord may have in connection with this Lease, as provided by law or equityforegoing, Landlord shall have be required to provide Tenant with notice of monetary default no more frequently than once in any twelve (12) calendar month period and no more than three (3) times total during the Lease Term and following rights and remedies upon such one notice in any twelve (12) calendar month period or three (3) such notices during the occurrence Lease Term, Tenant shall be deemed in default as to any further failure to pay Base Rental or other sums when due during such period, without any notice or demand being required(ii) the leasehold hereunder demised shall be taken on execution or other process of law in any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefromaction against Tenant; (biii) terminate this Lease Tenant shall fail to promptly move into and take possession of the Premises and to re-let when the Premises are ready for the Landlord’s account (no termination of this Lease occupancy or shall relieve the Tenant of the obligation cease to pay do business in or abandon any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession substantial portion of the Premises without terminating this Leasewritten notice to Landlord; (iv) Tenant shall become insolvent or unable to pay its debts as they become due, reenter and take possession or Tenant notifies Landlord that it anticipates either condition; (v) Tenant takes any action to, or notifies Landlord that Tenant intends to file a petition under any section or chapter of the Premises and remove all persons and property therefrom with National Bankruptcy Act, as amended, or without process of law, without being deemed guilty of under any manner of trespass and without prejudice to any remedies for arrears similar law or statute of the Fixed Rental United States or other amounts due hereunder any State thereof; or existing breaches hereof, and lease, manage, and operate a petition shall be filed against Tenant under any such statute or Tenant or any creditor of Xxxxxx’s notifies Landlord that it knows such a petition will be filed or Tenant notifies Landlord that it expects such a petition to be filed; or (vi) a receiver or trustee shall be appointed for Xxxxxx’s leasehold interest in the Premises and collect or for all or a substantial part of the rents, issues, and profits therefrom all for the account assets of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damages.
Appears in 1 contract
Samples: Lease Agreement (Healthequity Inc)
Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure to pay Fixed Rental, or If any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph and be continuing, the Agent may, and at the request of the Required Lenders, shall, by notice to the Borrowers, declare the Delayed Draw Commitments to be terminated, whereupon such Delayed Draw Commitments shall be terminated and declare the Maturity Date to have occurred with respect to the Loans, and all Lender Debt related thereto (a) unless Tenant fails including, but not limited to, accrued but unpaid interest and, as liquidated damages and not as a penalty, the Applicable Premium if such acceleration is on or prior to pay the third anniversary of the Closing Date), shall become immediately due and payable in full without presentment, demand, protest or any such sum within five (5) Business Days after receipt of a written other notice of default from Landlord; providedany kind, howeverall of which are hereby expressly waived by the Borrowers, that such notice shall not be required more than two (2) times anything contained herein or in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary Loan Document to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of contrary notwithstanding. If an assignment for the benefit of its creditors. Any Event of Default under clause (h) of Section 9.1 occurs, the Delayed Draw Commitments shall automatically be considered terminated and the Maturity Date will be deemed to have occurred automatically and without notice and all Lender Debt (including, but not limited to, accrued but unpaid interest and, as liquidated damages and not as a breach penalty, the Applicable Premium if such acceleration is on or prior to the third anniversary of this Lease the Closing Date) shall automatically become immediately due and payable without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by Tenantthe Borrowers, anything contained herein or in any other Loan Document to the contrary notwithstanding. In Upon any such declaration or designation, the Agent and the Lenders shall have, in addition to any the rights and remedies which it may have under this Agreement, all other rights or and remedies Landlord may have in connection with this Leaseprovided after default under the UCC and under other applicable law, as provided by law or equity, Landlord shall have the following which rights and remedies upon the occurrence of shall be cumulative. Each Lender agrees that it will not have any Event of Default: (a) without terminating right individually to enforce or seek to enforce this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental Agreement or any other amounts due under the terms of this Lease prior Loan Document or to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of realize upon any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all Collateral for the account of TenantLender Debt, it being understood and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of agreed that such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest may be exercised only by the Agent in its discretion granted hereunder or at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion direction of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagesapplicable Lenders as set forth hereunder.
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Events of Default Remedies. Each () The following events shall be deemed to be events of the following occurrences shall constitute an “Event of Default”default by Tenant under this Lease: (ai) Tenant’s failure to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt installment of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, Base Rental or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, Additional Rent when due and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s after Tenant is given written notice of such failure (provided, however, Tenant shall not be entitled to such notice and cure period more than twice in any calendar year during the Lease Term); (ii) Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach fails to comply with any provision of this Lease by Tenant. In addition to any (other than clauses (iii), (iv), (v), (vi) and (vii) in this Paragraph 28(a)), all other rights of which terms, provisions and covenants shall be deemed material and such failure continues for more than thirty (30) days after Tenant is given written notice of such failure (provided such 30-day notice and cure period for non-monetary defaults shall be decreased or remedies Landlord may have in connection with this Leasedispensed with, as provided reasonably required, in cases of emergency or in circumstances where such failure will result in a default by law or equity, Landlord shall have under other leases of space in the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined belowBuilding); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and leasehold hereunder demised is taken on execution or other charges and adjustments called for process of law in any action against Tenant; (iv)Tenant becomes insolvent or unable to pay its debts as they become due; (v) Tenant takes any action to or notifies Landlord that Tenant intends to file a petition under this Lease for the balance any section or chapter of the term after the United States Bankruptcy Code, as amended from time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award to time, or under any similar law or statute of the sums referred United States or any State thereof; or a petition shall be filed against Tenant under any such statute or Tenant or any creditor of Tenant's notifies Landlord that it knows such a petition will be filed or Tenant notifies Landlord that it expects such a petition to be filed; or (vi) a receiver or trustee is appointed for Tenant's leasehold interest in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate Premises or for all or a substantial part of the Federal Reserve Bank assets of San Francisco at the time of award plus one percent (1%)Tenant. In addition to Provided, however, and notwithstanding the foregoing remediesprovisions in this Paragraph 28(a), Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant not be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent notice and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) cure period in connection with this Lease. Landlord shall use commercially reasonable efforts Tenant's obligation to mitigate damagesvacate the Premises at the end of the Lease Term.
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Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition to any and all other rights or remedies Landlord may have in connection with this Lease, as provided by law or equity, Landlord shall have the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damages.and
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Samples: Purchase and Sale Agreement
Events of Default Remedies. Each SECTION 8.1 It will be a default hereunder if, at any time after the date hereof, any one of the following occurrences shall constitute events (herein called an “Event of Default”"EVENT OF DEFAULT") occurs: (a) Tenant’s if Tenant falls to pay any installment of the Base Rent or Operating Expenses, or any part thereof, when same is due and payable and such failure continues for five (5) days after the same is due and payable; Notwithstanding the foregoing, Landlord agrees that it will notice Tenant up to three (3) times in any Lease Year of any failure to pay Fixed Rental, an Installment of Base Rent or any other sums due from Operating Expenses and it will not be an event of default if Tenant to Landlord under this Lease pays such overdue amount within five (provided, however, no 5) days of the receipt of such Event of Default shall occur under this subparagraph notice; or (ab) unless if Tenant fails to pay any such sum within five (5) Business Days after receipt other item of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, additional rent or observe any other agreement charges required to be paid by Tenant hereunder and such failure continues for ten (10) days after notice thereof from Landlord to Tenant; or obligation (c) If Tenant fails to perform any of the requirements of this Lease (other than the payment of money) on the part of Tenant under this Lease, which to be performed or observed and such failure is not cured within continues for thirty (30) days of written after notice thereof from Landlord (to Tenant; or provided, however, if such default shall be of a nature that it cannot reasonably be cured by Tenant commences such cure within such thirty (30-) day period and diligently pursues such cureperiod, Tenant may shall have such additional time as may shall be reasonably necessary necessary, provided Tenant promptly commences a cure within said thirty (30) day period and diligently proceeds to effect cure same thereafter provided that under no circumstances will such cure); additional time exceed ninety (c90) Tenant’s failure to perform days. (d) Deleted Intentionally. (e) if Tenant assigns, mortgages or encumbers this Lease, or sublets the Demised Premises, or any of the obligations of Tenant in the manner set forth in Section 10part thereof, and such failure continues for more other than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the sameas expressly permitted hereunder; or (df) the admission by If Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of makes an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease ; or (g) if any petition is filed by Tenant. In addition or against Tenant in any court, whether or not pursuant to any statute of the United States or of any State, in any bankruptcy, reorganization, extension, arrangement or insolvency proceedings, and with regard to a petition filed against Tenant the same is not dismissed within forty-five (45) days, provided that during such period Tenant continues to pay all Base Rent and all additional rent and performs all of its obligations under this Lease; or (h) if, a receiver or trustee is appointed for all or any substantial portion of Tenant's property, 11 and with regard to a proceeding brought against Tenant the same is not dismissed in forty-five (45) days, provided that during such period Tenant continues to pay all Base Rent and all additional rent and performs all of its obligations under this Lease; or (i) if a petition or a proceeding is filed or commenced by or against Tenant for its dissolution or liquidation (other rights or remedies Landlord may have than in connection with this Leaseany merger permitted hereunder), as or if Tenant's property is taken by any governmental authority in connection with a dissolution or liquidation, and with regard to a petition filed or commenced against Tenant the same is not dismissed within forty-five (45) days, provided by law or equity, Landlord shall have the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude that during such period Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation continues to pay any Fixed Rental or any other amounts due under the terms all Base Rent and all additional rent and performs all of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s its obligations under this Lease the net rental received Lease; or (after deducting therefrom j) if a levy for substantially all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth Tenant's property at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under Demised Premises or upon the Lease which had been earned at the time of terminationor upon Tenant's leasehold interest hereunder, under judgment against Tenant is not satisfied or bonded within thirty (ii30) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagesdays.
Appears in 1 contract
Samples: Agreement (Miix Group Inc)
Events of Default Remedies. Each of the following occurrences shall constitute an An “Event of Default”: ” shall be deemed to have occurred in the event (ai) Tenant’s failure to pay Fixed Rental, any payment of rent or any other sums sum becoming due from Tenant to Landlord under is not paid within ten (1O) days of its due date, (ii) Customer fails to perform any other obligation of Customer pursuant to this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant Customer, or (iii) if at any time proceedings in bankruptcy, or pursuant to any other act for the relief of debtors, shall be instituted by or against the Customer, or if a receiver or trustee shall be appointed of the same; Customer’s property, or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of If this Lease shall by Tenant. In addition operation of law, devolve upon or pass to any and all person or persons other rights or remedies Landlord may have in connection with this Lease, as provided by law or equity, than Customer. A late payment charge of 2% per month (of the amount owed) will be payable on any payment which Is not paid within ten (10) days of Its due date. Rent payments paid to Landlord shall have first be applied to any unpaid charges on the following rights account (for example, late penalties, NSF charges, and remedies upon administrative tees) and Customer shall immediately pay any deficiency. Upon the occurrence of any an Event of Default: , Landlord may (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (bi) terminate this Lease and take possession of the Premises and on notice to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of terminationCustomer, (ii) take control of and repossess the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoidedPremises, and (iii) remove Customer’s property from the amount by which Premises and dispose of the unpaid Fixed Rental same in any manner, (iv) accelerate and other charges and adjustments called for under this Lease declare immediately due all rent for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoidedTerm. The worth at the time foregoing remedies and rights of award of the sums referred to Landlord are cumulative and in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its any other rights and remedies under to which Landlord may be entitled by applicable law. Upon Landlord’s election to terminate this Lease, including attorneys’ fees, court costs Customer shall immediately quit and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making surrender the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by to Landlord, but Customer shall remain liable for all rent received by Landlord shall be applied (i) first to the of Customer’s payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under performance obligations contained in this Lease. In no event shall the Tenant be entitled to receive any surplus Event of any sums received by Landlord on re-letting the PremisesDefault, in excess of the rent and addition to any other charges payable under this Lease. In no event damages to which Landlord is entitled, Customer shall Tenant be liable for consequential, punitive, exemplary Landlord’s reasonable attorneys’ fees and court costs. such right or other damages (other than actual damages only) in connection with this Leaseremedy. No failure of Landlord to enforce any term hereof shall use commercially reasonable efforts be deemed to mitigate damagesbe a waiver.
Appears in 1 contract
Samples: North Forest (CIPHERLOC Corp)
Events of Default Remedies. Each (a)(1) Tenant shall be in default upon the occurrence of one or more of the following occurrences shall constitute events (an “"Event of Default”: "): (ai) Tenant’s failure to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any installment of Annual Base Rent, Additional Rent or any other sum of money required to be paid by Tenant hereunder within seven (7) days of the date when due, provided, however, that solely with respect to the first occurrence of such sum failure to pay within any twelve (12) month period, Landlord shall give Tenant written notice of such failure and Tenant shall not be deemed in default unless Tenant fails to cure such failure within five (5) Business Days after receipt business days of a written notice of default from Landlordsaid notice; provided, however, it being expressly understood and agreed that such notice Landlord shall not be required to give any notice of failure to pay with respect to the second occurrence of nonpayment within any twelve (12) month period or with respect to any subsequent occurrences of nonpayment within said twelve (12) month period; (ii) Tenant fails to perform any of Tenant's non-monetary obligations under this Lease within the Non-Monetary Grace Period (as said term is hereinafter defined) (provided that if more than two (2) times the Non-Monetary Grace Period is required to complete such performance, Tenant shall not be in a given calendar yeardefault if Tenant commences such performance within said Non-Monetary Grace Period and thereafter diligently pursues its completion); (biii) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within abandons the Demised Premises for thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the sameor more; or (div) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of makes an assignment for the benefit of creditors, or if a petition for adjudication of bankruptcy or for reorganization is filed by or against Tenant and is not dismissed within ninety (90) days, or if a receiver or trustee is appointed for a substantial part of Tenant's property and such appointment is not vacated within ninety (90) days; or (v) Tenant assigns all or any portion of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition to any and all other rights or remedies Landlord may have interest in connection with this Lease, as provided by law or equity, Landlord shall have the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting sublets all or any portion of the Premises, including Premises or transfers or allows the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment transfer of any indebtedness other than rent legal interest or other charges due under this Lease from beneficial interest in Tenant, (ii) second to the payment except as otherwise expressly permitted by Section 17 of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damages.
Appears in 1 contract
Samples: Agreement of Lease (Parlex Corp)
Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure The following events shall be deemed to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice be events of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of by Tenant under this Lease: Tenant shall fail to pay any Rent or other sum of money due hereunder and such failure shall continue for a period of TEN (10) DAYS AFTER TENANT'S RECEIPT OF NOTICE THEREOF FROM LANDLORD; PROVIDED, HOWEVER, THAT LANDLORD SHALL NOT BE REQUIRED TO PROVIDE TENANT WITH THE NOTICE AND TEN-DAY PERIOD SET FORTH IN THIS SUBPARAGRAPH MORE THAN THREE (3) TIMES DURING ANY LEASE YEAR, AND THE FOURTH AND EACH SUBSEQUENT FAILURE TO TIMELY PAY SUCH SUMS DURING ANY LEASE YEAR SHALL IMMEDIATELY CONSTITUTE AN EVENT OF DEFAULT HEREUNDER; Tenant shall fail to comply with any provision of this Lease or any other agreement between Landlord and Tenant not requiring the payment of money, all of which terms, provisions and covenant shall be deemed material, and such failure is not cured within shall continue for a period of thirty (30) days of (or immediately if the failure involves a hazardous condition) after written notice from Landlord of such default is delivered to Tenant; PROVIDED, THAT IN THE EVENT ANY SUCH FAILURE IS NOT REASONABLY SUSCEPTIBLE OF CURE WITHIN SUCH THIRTY (provided30)-DAY PERIOD, howeverTENANT SHALL HAVE A REASONABLE TIME TO CURE SUCH FAILURE (NOT TO EXCEED NINETY (90) DAYS TOTAL), if PROVIDED TENANT COMMENCES CURE AS SOON AS IS REASONABLY POSSIBLE, AND PROSECUTES SUCH CURE DILIGENTLY TO COMPLETION; the leasehold hereunder demised shall be taken on execution, levied upon or attached or other process of law in any action against Tenant; Tenant commences such cure within such 30-day period and diligently pursues such curenotifies Landlord, at any time prior to the Commencement Date, that Tenant may have such additional time as may be reasonably necessary does not intend to effect such cure); (c) Tenant’s failure to perform any take occupancy of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition to any and all other rights or remedies Landlord may have in connection with this Lease, as provided by law or equity, Landlord shall have the following rights and remedies Premises upon the occurrence of any Event of Default: (a) without terminating this Lease, Commencement Date or Tenant shall fail to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease promptly move into and take possession of the Premises and to re-let when the Premises are ready for the Landlord’s account (no termination of this Lease occupancy or shall relieve the Tenant of the obligation cease to pay any Fixed Rental do business in, vacate or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or abandon any portion of the Premises; Tenant shall become insolvent or unable to pay its debts as they become due, including or Tenant notifies Landlord that it anticipates either condition; Tenant takes any action to, or notifies Landlord that Tenant intends to file a petition under any section or chapter of the cost United States Bankruptcy Code, as amended from time to time, or under any similar law or statute of removing and storing the United States or any State thereof; or a petition shall be filed against Tenant under any such statute or Tenant or any creditor of Tenant notifies Landlord that it knows such a petition will be filed or has been filed or Tenant notifies Landlord that it expects such a petition to be filed; or a receiver or trustee shall be appointed for Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making 's leasehold interest in the Premises ready or for all or a new tenant, including the cost of leasehold improvements. Upon any re-letting substantial part of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment assets of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damages.
Appears in 1 contract
Samples: Office Lease Agreement (Triton Network Systems Inc)
Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure The following events shall be deemed to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice be events of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of by Tenant under this Lease: (i) Tenant shall fail to pay when due any installment of the rent hereby reserved; (ii) Tenant shall fail to comply with any term, which provision or covenant of this Lease, other than the payment of rent, and shall not cure such failure is not cured within thirty (30) days of after written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary thereof to effect such cure)Tenant; (ciii) the leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant’s failure ; (iv) Tenant shall fail to perform any promptly move into and take possession of the obligations of Tenant Premises when the Premises are ready for occupancy or shall cease to do business in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant or abandon any substantial portion of the samePremises; (v) Tenant becomes insolvent, or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of makes an assignment for the benefit of creditors, or admits in writing its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition inability to any and all other rights or remedies Landlord may have in connection with this Lease, pay its debts as provided by law or equity, Landlord shall have the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefromthey become due; (bvi) terminate this Lease and take Tenant is not paying its debts as such debts become due; (vii) a receiver, trustee or custodian is appointed for, or takes possession of, all or substantially all of the Premises and to re-let the Premises for the Landlord’s account (no termination assets of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including either in a proceeding brought by Tenant or in a proceeding brought against Tenant and such appointment is not discharged or such possession is not terminated within thirty (30) days after the cost of removing and storing Tenant’s personal property and effective date thereof or Tenant consents to or acquiesces in such appointment or possession; (viii) Tenant files a petition for relief under the Federal Bankruptcy Code, as amended, or any other propertypresent or future federal or state insolvency, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting bankruptcy or similar law (all of the Premises by Landlordforegoing hereinafter collectively called “applicable Bankruptcy Law”) or an involuntary petition for relief is filed against Tenant under any applicable Bankruptcy Law and such petition is not dismissed within thirty (30) days after the filing thereof, all rent received by Landlord shall be applied (i) first to the payment of or an order for relief naming Tenant is entered under any indebtedness other than rent applicable Bankruptcy Law, or any composition, rearrangement, extension, reorganization or other charges due under this Lease from relief of debtors now or hereafter existing is requested or consented to by Tenant; or (ix) any of the events referred to in subheadings (v), (ii) second to the payment of any reasonable and related costs and expenses of such re-letting vi), (including brokerage fees and attorney’s fees and costs of alterations and repairsvii), and (iiiviii) third shall occur with respect to any guarantor (hereinafter called “Guarantor”) of the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus or performance of any sums received by Landlord on re-letting Tenant’s obligations hereunder and shall not be remedied within the Premises, time set forth in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagessuch subheadings.
Appears in 1 contract
Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure The following events shall be deemed to pay Fixed Rentalbe, or any other sums due from Tenant to Landlord under this Lease (providedbut are not exclusively, however, no such Event "Events of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Default" by Tenant under this Lease: (i) Tenant shall fail to pay any Rent or other sum of money when due under this Lease; (ii) Tenant shall fail to comply with any provision of this Lease or any other agreement between Landlord and Tenant (including, without limitation, the Work Letter) not requiring the payment of money (all of which terms, provisions, and covenants shall be deemed material) and such failure shall continue for a period of 15 days after written notice of such default is delivered to Tenant, or if such failure could not reasonably be cured within thirty (30) days of written notice from Landlord (providedsuch period, however, if Tenant commences shall have failed to commence such cure within such 30-day period and diligently pursues or thereafter failed to prosecute with diligence such curecure to completion, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant but in the manner set forth in Section 10, and such failure continues for more not event later than ten (10) 60 days following Tenant’s receipt of after Landlord’s written 's initial notice to Tenant of the samesuch failure; or (diii) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default leasehold hereunder demised shall be considered a breach taken by execution or other process of this Lease by law in any action against Tenant. In addition ; (iv) Tenant notifies Landlord, at any time prior to any and all other rights or remedies Landlord may have in connection with this Leasethe Rent Commencement Date, as provided by law or equity, Landlord shall have that Tenant does not intend to take occupancy of the following rights and remedies Premises upon the occurrence of any Event of Default: (a) without terminating this LeaseRent Commencement Date, or Tenant shall fail to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease promptly move into and take possession of the Premises and to re-let when the Premises are ready for occupancy or shall cease to do business in or abandon any substantial portion of the Landlord’s account Premises; (no termination v) Tenant shall become insolvent or unable to pay its debts as they become due, or Tenant notifies Landlord that it anticipates either condition; (vi) Tenant or any guarantor takes any action to, or notifies Landlord that Tenant or any guarantor intends to file a petition under any section or chapter of the Bankruptcy Code, as amended from time to time, or under any similar law or statute of the United States or any State thereof, or a petition shall be filed against Tenant or any guarantor under any such statute, or Tenant or any guarantor or any creditor of Tenant notifies Landlord that it knows such a petition will be filed, or Tenant or any guarantor notifies Landlord that it expects such a petition to be filed; (vii) a receiver or trustee shall be appointed for Tenant's leasehold interest in the Premises or for all or a substantial part of the assets of Tenant or any guarantor; (viii) Tenant shall make any assignment of this Lease shall relieve the Tenant or sublease of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the PremisesPremises without Landlord's prior consent in violation of the terms of this Lease; (ix) Tenant shall remove or permit the removal of any furniture, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making fixtures or equipment from the Premises ready for a new tenantother than in the ordinary course of its business; (x) if Tenant fails more than twice within any 12 month period to observe or perform any covenant, condition, or agreement of this Lease (including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to without limitation the payment of Rent), regardless of whether such defaults shall have been cured by Tenant, the third default shall at the election of Landlord, in its sole and absolute discretion, be deemed a noncurable Event of Default; (xi) Tenant or any indebtedness agent of Tenant falsifies any report or misrepresents other than rent information required to be furnished to Landlord pursuant to this Lease; (xii) the death of Tenant or any guarantor of Tenant's obligations; or the commencement of steps or proceedings toward the dissolution, winding up, or other charges due under this Lease from Tenant, (ii) second to termination of the payment existence of the Tenant or of any reasonable and related costs and expenses guarantor of such re-letting the Tenant's obligations, or toward the liquidation of either of their respective assets; or (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iiixiii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus occurrence of any sums received by Landlord on re-letting other event described as a default elsewhere in the PremisesLease or any amendment thereto, in excess regardless of whether such event is defined as one of the rent and other charges payable under Events of Default in this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagesParagraph.
Appears in 1 contract
Events of Default Remedies. Each of the The following occurrences shall constitute an “Event of Default”Default hereunder: (a) Tenant’s failure if by June 30, 2015 Tenant fails to pay Fixed Rental, close on the equity and construction funding necessary to develop the Project; if Tenant or any other sums due from Tenant of its permitted Transferees shall fail to Landlord make payment of any sum payable under this Lease (provided, however, no if such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, after such payment is due; if Tenant commences such cure within such 30-day period and diligently pursues such cureshall be adjudged bankrupt or insolvent, Tenant may file any debtor proceedings, or take or have such additional time as may be reasonably necessary taken against Tenant, in any court pursuant to effect such cure); (c) any statute now or hereafter enacted, a petition in bankruptcy or insolvency or for an arrangement or for reorganization, composition, or any other arrangement with Tenant’s failure to perform any of creditors, and the obligations same is not dismissed within ninety (90) days, or if this Lease or the estate of Tenant in herein shall pass to or devolve upon, by operation of law or otherwise, anyone other than Tenant (other than as herein provided) and the manner set forth in Section 10, and such failure continues same does not revert to Tenant within ninety (90) days; or for more than ten (10) days following the appointment of a receiver or trustee of all or a portion of Tenant’s receipt of Landlord’s written notice to property; if Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of makes an assignment for the benefit of creditors, or petitions for or enters into a similar arrangement (other than any arrangement or assignment permitted under this Lease) and the same is not dismissed within ninety (90) days; if Tenant shall suffer this Lease to be taken under any writ of execution; if Tenant shall fail to pay an obligation required under any mortgage within the time provided in such an instrument plus any period of grace to make such payment or cure a failure to make such a payment, or otherwise commit an act of default under any mortgage affecting the Leased Premises; if Tenant shall assign this Lease or sublet, other than to income eligible low-income households, or otherwise encumber the Leased Premises without first obtaining Landlord’s consent except as permitted in this Lease; if the provisions of Section 4 hereof shall not be fully and completely complied with and such failure continues without the curing of the same for a period of thirty (30) days after written notice shall have been given to Tenant by Landlord specifying the nature of such failure; provided, however, that if such curing is commenced within such thirty (30) day period but cannot, with due diligence, be completed within such period, the same will not become a default under this Lease so long as Tenant shall at all times diligently, continually, and in good faith prosecute such curing to effect the same as soon as reasonably possible under all prevailing circumstances but in any event completes such cure within ninety (90) days after the aforementioned written notice; if Tenant, any of its creditors. Any Event permitted Transferees, shall fail to perform any of Default the other covenants, conditions and agreements contained in this Lease that are required to be kept or performed by Tenant and such failure continues without the curing of the same for a period of thirty (30) days after written notice shall have been given to Tenant by Landlord specifying the nature of such failure; provided, however, that if such curing is commenced within such thirty (30) day period but cannot, with due diligence, be considered completed within such period, the same will not become a breach default under this Lease so long as Tenant shall at all times diligently, continually, and in good faith prosecute such curing to effect the same as soon as reasonably possible under all prevailing circumstances but in any event completes such cure within ninety (90) days after the aforementioned written notice; if Tenant fails to diligently and continuously prosecute the construction of the improvements to completion by December 31, 2017; if Tenant abandons or ceases to operate in the Leased Premises during the term of this Lease by (other than temporary closures following a casualty or to effect any improvements or alterations in and to the Leased Premises) for a period of more than 180 days, subject to Excusable Delays; or if a mechanic’s, vendor’s, laborer’s, or material supplier’s statutory lien or other similar lien arising from work, labor, services, equipment, or materials supplied, or claimed to have been supplied, to Tenant (or anyone claiming through Tenant. In addition to any and all other rights ) attaches (or remedies Landlord may have in connection with attach upon termination of this Lease, as provided by law ) to the fee estate and Tenant fails to remove the lien or equitybond it over within sixty (60) days. Upon the occurrence of a Default, Landlord shall have the following rights immediate right and remedies upon option (but not the occurrence of any Event of Default: (aobligation) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let enter the Premises for the Landlord’s account (no termination of this Lease shall relieve the Leased Premises, either by summary proceedings, force, or otherwise, and to dispossess Tenant of the obligation to pay any Fixed Rental or any and all other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises occupants therefrom and remove and dispose of all persons property therein, all without service of any notice of intention to re-enter and property therefrom with or without resort to legal process of law, (which Tenant hereby expressly waives) and without Landlord being deemed guilty of trespass or becoming liable for any manner loss or damage which may be occasioned thereby. Further, Landlord shall have the right, at its option, in addition to and not in limitation of trespass and without prejudice any other right or remedy, to any remedies for arrears terminate this Lease by giving Tenant notice of the Fixed Rental or other amounts due hereunder or existing breaches hereofcancellation, and leaseupon delivery of such notice, managethis Lease and the term hereof shall end and terminate as fully and completely and thereupon, unless Landlord shall have theretofore elected to re-enter the Leased Premises, Landlord shall have the immediate right of re-entry, in the manner aforesaid, and operate Tenant and all other occupants shall quit and surrender the Leased Premises and collect the rentsto Landlord, issues, and profits therefrom all for the account but Tenant shall remain liable as provided herein. Notwithstanding any provision of Tenant, and credit this Lease to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessingcontrary, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of Landlord shall take no action with respect to a particular Default if (i) Landlord or any of its affiliates is the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time general partner of termination, Tenant or (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of its affiliates owns a controlling interest in the Premisesgeneral partner, including the cost managing member or controlling shareholder of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damages.
Appears in 1 contract
Samples: quickserv.pha.phila.gov
Events of Default Remedies. Each 12.1 If the Tenant shall default in the payment of Annual Rent or Additional Rent on the following occurrences date provided for in this Lease, and if such default shall constitute an “Event continue for a period of Default”: (a) Tenant’s failure to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days days after the date when due; or in the event that Tenant shall default or fail in the performance of a covenant or agreement on its part to be performed in this Lease (other than the payment of Rent), and such default shall not have been cured for a period of thirty (30) days after receipt by Tenant of a written notice of said default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Leaseif such default cannot, which failure is not with due diligence, be cured within thirty (30) days of written notice from Landlord (provideddays, however, and Tenant shall not have commenced the remedying thereof within such period or shall not be proceeding with due diligence; or if Tenant commences such cure within such 30-day period and diligently pursues such curebecomes insolvent, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; or (d) the admission by Tenant admits in writing that it cannot meet the inability to pay its obligations debts as they become due due, is adjudged bankrupt (by way of voluntary or involuntary petition) under the making by Tenant of Federal Bankruptcy Act or any Federal insolvency proceedings as now in effect or hereafter amended, seeks reorganization or similar arrangement or relief under the Federal Bankruptcy Act or any Federal insolvency proceedings, or makes an assignment for the benefit of its creditors. Any Event , or if a receiver or trustee is appointed in connection with any of Default the foregoing or similar proceedings; or if there shall occur a dissolution of liquidation, or commencement of an action for dissolution or liquidation of the Tenant which is not vacated or stayed within one hundred twenty (120) days after the commencement of such action, then, and in any such case, Landlord, at any time thereafter, may give written notice to the Tenant, specifying such event of default stating that this Lease shall expire on the date specified in such notice which shall be considered a breach at least thirty (30) days after the giving of such notice and upon the date specified in such notice, this Lease and all rights of the Tenant hereunder shall terminate, title to the improvements shall vest in Landlord but Tenant shall remain liable as hereafter provided. Upon the expiration of this Lease in the manner above set forth or by Tenant. In addition to summary proceedings or by any and all other rights appropriate legal action or remedies Landlord may have in connection with this Lease, as provided by law or equityproceedings, Landlord shall have may, without further notice, re-enter the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Demised Premises and to exclude dispossess Tenant therefrom; (b) terminate this Lease or any person or persons occupying said premises and take possession of the Premises and so to re-let possess and enjoy the Premises for Demised Premises, subject, however, to the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty rights of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagesOccupancy Tenants.
Appears in 1 contract
Samples: Ground Lease Agreement (EVO Transportation & Energy Services, Inc.)
Events of Default Remedies. Each (a) As used herein, the term "Event of Default" shall mean any of the following occurrences shall constitute an “Event of Default”events: (a1) Tenant’s failure Lessee violates or fails to pay Fixed Rental, or perform any other sums due from Tenant to Landlord under provision of this Lease (provided, however, no Agreement and such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, violation or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days of after written notice from Landlord by Lessor; or (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c2) Tenant’s failure Lessee violates or fails to perform any covenant or representation made by Lessee herein and such violation or failure is not cured within thirty (30) days after written notice by Lessor. An Event of Default with respect to any Equipment Order hereunder shall, at Lessor's option, constitute an Event of Default for all Equipment Orders hereunder and any other agreements between Lessor and Lessee. (b) Upon the occurrence of an Event of Default, Lessor may do one or more of the obligations following as Lessor in its sole discretion shall elect: (1) proceed by appropriate court action or actions, either at law or in equity, to enforce performance by Lessee of Tenant the applicable covenants of this Lease Agreement or to recover damages for the breach thereof; (2) sell any Item of Equipment at public or private sale; (3) hold, keep idle or lease to others any Item of Equipment as Lessor in its sole discretion may determine; (4) by notice in writing to Lessee, cancel or terminate this Lease Agreement, without prejudice to any other remedies hereunder; 10 <PAGE> (5) demand that Lessee, and Lessee shall, upon written demand of Lessor and at Lessee's expense forthwith return all Items of Equipment to Lessor in the manner set forth in and condition required by Section 1013 hereof; (6) enter upon the premises of Lessee or other premises where any Item of Equipment may be located and, without notice to Lessee and with or without legal process, take possession of and remove all or any such Items of Equipment without liability to Lessor by reason of such entry or taking possession, and without such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; action constituting a cancellation or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach termination of this Lease by Tenant. In addition Agreement unless Lessor notifies Lessee in writing to such effect; (7) cause Lessee, at its expense, to promptly assemble any and all Items of Equipment and return the same to Lessor at such place as Lessor may designate in writing; and (8) exercise any other rights right or remedies Landlord may have in connection with this Lease, as provided by remedy available to Lessor under applicable law or equityproceed by appropriate court action to enforce the terms hereof or to recover damages for the breach hereof or to rescind this Lease Agreement. In addition, Landlord Lessee shall have the following rights be liable, except as otherwise provided above, for reasonable legal fees and remedies upon other costs and expenses incurred by reason of the occurrence of any Event of Default: Default or the exercise of Lessor's remedies with respect thereto. If an Event of Default occurs, Lessee hereby agrees that ten (a10) without terminating this Leasedays prior notice to Lessee of (A) any public sale or (B) the time after which a private sale may be negotiated shall be conclusively deemed reasonable and, to change the locks on the doors extent permitted by Applicable Law, Lessee waives all rights and defenses with respect to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession such disposition of the Premises Equipment. None of Lessor's rights or remedies hereunder are intended to be exclusive of, but each shall be cumulative and in addition to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior right or remedy referred to termination) hereunder or otherwise available to Lessor at law or in equity, and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with no express or without process of law, without being deemed guilty implied waiver by Lessor of any manner Event of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant Default shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for constitute a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment waiver of any indebtedness other than rent Event of Default or other charges due under this Lease from Tenant, (ii) second to the payment a waiver of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this LeaseLessor's rights. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damages21.
Appears in 1 contract
Samples: Equipment Lease Agreement
Events of Default Remedies. Each Except as to those specific notices and cure periods, if any, particularly set forth elsewhere herein, the breach by either party (“Defaulting Party”) hereto of any term, provision, condition, promise, covenant, agreement, representation, warranty, guaranty, indemnity, duty or obligation if not cured within five (5) business days of the following occurrences earlier of said Defaulting Party’s receipt or refusal of written notice of the same from the other party (“Non-Defaulting Party”) hereto shall constitute automatically and without further notice hereunder be an immediate event of default (“Event of Default”: (a) Tenant’s failure entitling the Non- Defaulting Party to pay Fixed Rentalexercise any and all remedies available to it hereunder or in law or equity, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in if a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease, which failure non-monetary breach is not reasonably capable of being cured within the aforesaid five (5) business days but the Defaulting Party promptly commences to cure within said period, within said period notifies the Non-Defaulting Party in writing of the commencement of said cure, and thereafter diligently pursues the same to conclusion and successfully completes said cure within thirty (30) calendar days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s its first receipt of Landlord’s written notice to Tenant of the same; said breach or (d) the admission by Tenant in writing that violation, it canshall not meet its obligations as they become due or the making by Tenant of be an assignment for the benefit of its creditors. Any Event of Default hereunder. The Non-Defaulting Party’s rights and remedies hereunder shall be considered a breach cumulative and not mutually exclusive and the exercise by the Non-Defaulting Party of this Lease by Tenant. In addition to any and all other one or more rights or remedies Landlord may have granted it hereunder or in connection with this Leaselaw or equity shall not be deemed, interpreted or construed as provided by an election of the same or to bar, prevent or preclude the simultaneous or consecutive exercise of any other right or remedy granted to the Non-Defaulting Party hereunder or in law or equity, Landlord including but not limited to the simultaneous or successive pursuit of money damages and injunctive relief. The Non- Defaulting Party shall have the following rights and remedies upon the occurrence not be required to post any bond, surety or security of any Event of Default: (a) without terminating this Leasenature whatsoever to pursue injunctive relief, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental necessity or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss requirement for the same period which being hereby waived by the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagesDefaulting Party.
Appears in 1 contract
Samples: Operations Transfer Agreement
Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure The following events shall be deemed to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice be events of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of by Tenant under this Lease, which failure is not cured within thirty : (30i) days Tenant shall fail to pay any Rent or other sum of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, money due hereunder and such failure continues shall continue for more than a period of ten (10) days following Tenant’s receipt of Landlord’s written notice after the date such sum is due; (ii) Tenant shall fail to Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach comply with any provision of this Lease by or any other agreement between Landlord and Tenant (including the Work Letter) not requiring the payment of money, all of which terms, provisions and covenants shall be deemed material and such failure shall continue for a period of ten (10) days after written notice of such default is delivered to Tenant. In addition ; (iii) the leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant; (iv) Tenant notifies Landlord, at any time prior to any and all other rights or remedies Landlord may have in connection with this Leasethe Commencement Date, as provided by law or equity, Landlord shall have that Tenant does not intend to take occupancy of the following rights and remedies Premises upon the occurrence commencement of any Event of Default: (a) without terminating this Lease, the Lease Term; or Tenant shall fail to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease promptly move into and take possession of the Premises and to re-let when the Premises are Ready for the Landlord’s account (no termination of this Lease Occupancy or shall relieve the Tenant of the obligation cease to pay any Fixed Rental do business in or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or abandon any portion of the Premises; (v) Tenant shall become insolvent or unable to pay its debts as they become due, including or Tenant notifies Landlord that it anticipates either condition; (vi) Tenant takes any action to, or notifies Landlord that Tenant intends to file a petition under any section or chapter of the cost Bankruptcy Code, as amended from time to time, or under any similar law or statute of removing and storing the United States or any State thereof; or a petition shall be filed against Tenant under any such statute; or Tenant or any creditor of Tenant notifies Landlord that it knows such a petition will be filed; or Tenant notifies Landlord that it expects such a petition to be filed; or (vii) a receiver or trustee shall be appointed for Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making 's leasehold interest in the Premises ready or for all of a new tenant, including the cost of leasehold improvements. Upon any re-letting substantial part of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment assets of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damages.
Appears in 1 contract
Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant If Lessee fails to pay any such sum within five (5) Business Days after receipt installment of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure rent due under this lease or fails to perform, comply with, or observe with any other agreement or obligation provision of Tenant under this Leaselease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt after notice by Lessor to Lessee demanding same, provided that said notice need not be given with regard to nonpayment of Landlord’s written rent or failure to comply with any other provision of this lease after such notice to Tenant has been given twice during the period of this lease, or if Lessee abandons the leased premises or discontinues the use of the same; leased premises for the purposes for which leased or (d) removes from the admission by Tenant leased premises any property against which Lessor is entitled in writing that it cannot meet its obligations as they become due a lessor's lien or the making by Tenant of makes an assignment for the benefit of its creditors. Any Event creditors or if a receiver or other custodian is appointed for Lessee or any of Default shall be considered a breach of this Lease Lessee's property by Tenant. In addition to any and all other rights or remedies Landlord may have court, then, in connection with this Leaseany such events, as provided by law or equity, Landlord Lessor shall have the following rights right, at Lessor's option, without puffing Lessee in default and remedies upon the occurrence without notice of default, (1) to cancel this lease effective immediately or effective as of any Event date Lessor may select, or (2) to proceed one or more times for past due installments of Default: rent only, without prejudicing the right to proceed later for additional installments, or exercise any other remedy, or (3) to declare the unpaid rent for the entire unexpired term of this lease immediately due and payable and at once demand and receive payment thereof, of (4) to have recourse to any other remedy or mode of redress to which Lessor may be entitled by law. In the event Lessor exercises the right to cancel this lease, then (a) without terminating this LeaseLessor shall have the right, as soon as said cancellation is effective, to change re-enter the locks on the doors to the Premises leased premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises same for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the such price and on such terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of lawbe immediately available, without being deemed guilty of notice or court proceedings, Lessee hereby assenting thereto and expressly waiving any manner of trespass and without prejudice notice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoidedvacate, and (iiib) Lessee shall be and remain liable not only for all rent payable to the amount date such cancellation becomes effective, but also for all damage or loss (including, without limitation, all rental loss) suffered by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease Lessor for the balance remaining term of this lease resulting from such cancellation. Failure of Lessor to exercise any right granted in this section shall not be construed as a waiver of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred right to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready subsequently enforce for a new tenantdefault such right, including the cost of leasehold improvements. Upon any re-letting of the Premises and no indulgence by Landlord, all rent received by Landlord Lessor shall be applied (i) first to the payment construed as a waiver of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagesright therein granted.
Appears in 1 contract
Samples: Office Lease (LOUISIANA FOOD Co)
Events of Default Remedies. Each 13.1. If the Tenant shall default in the payment of Annual Rent or Additional Rent on the following occurrences date provided for in this Lease, and if such default shall constitute an “Event continue for a period of Default”: (a) Tenant’s failure to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days days after the date when due; or in the event that Tenant shall default or fail in the performance of a covenant or agreement on its part to be performed in this Lease (other than the payment of Rent), and such default shall not have been cured for a period of thirty (30) days after receipt by Tenant of a written notice of said default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Leaseif such default cannot, which failure is not with due diligence, be cured within thirty (30) days of written notice from Landlord (provideddays, however, and Tenant shall not have commenced the remedying thereof within such period or shall not be proceeding with due diligence; or if Tenant commences such cure within such 30-day period and diligently pursues such curebecomes insolvent, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; or (d) the admission by Tenant admits in writing that it cannot meet the inability to pay its obligations debts as they become due due, is adjudged bankrupt (by way of voluntary or involuntary petition) under the making by Tenant of an Federal Bankruptcy Act or any Federal insolvency proceedings as now in effect or hereafter amended, seeks reorganization or similar arrangement or relief under the Federal Bankruptcy Act or any Federal insolvency proceedings, or makes and assignment for the benefit of its creditors. Any Event , or if a receiver or trustee is appointed in connection with any of Default the foregoing or similar proceedings; or if there shall occur a dissolution of liquidation, or commencement of an action for dissolution or liquidation of the Tenant which is not vacated or stayed within one hundred twenty (120) days after the commencement of such action, then, and in any such case, Landlord, at any time thereafter, may give written notice to the Tenant, specifying such event of default stating that this Lease shall expire on the date specified in such notice which shall be considered a breach at least thirty (30) days after the giving of such notice and upon the date specified in such notice, this Lease and all rights of the Tenant hereunder shall terminate, title to the improvements shall vest in Landlord but Tenant shall remain liable as hereafter provided. Upon the expiration of this Lease in the manner above set forth or by Tenant. In addition to summary proceedings or by any and all other rights appropriate legal action or remedies Landlord may have in connection with this Lease, as provided by law or equityproceedings, Landlord shall have may, without further notice, re-enter the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Demised Premises and to exclude dispossess Tenant therefrom; (b) terminate this Lease or any person or persons occupying said premises and take possession of the Premises and so to re-let possess and enjoy the Premises for Demised Premises, subject, however, to the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty rights of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagesOccupancy Tenants.
Appears in 1 contract
Samples: Ground Lease Agreement (EVO Transportation & Energy Services, Inc.)
Events of Default Remedies. Each (a) If any one of the following occurrences shall constitute events (each, an “"Event of Default”") shall occur, then to the extent permitted by applicable law, the Lender shall have the right to exercise any one or more of the remedies set forth in Section 18(b) hereof: (ai) Tenant’s failure to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant the Borrower fails to pay make any payment when due hereunder and such sum within failure continues for a period of five business days; or (5ii) Business Days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two Borrower fails to observe or perform (2A) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation to be observed or performed hereunder or under any Loan Schedule or other agreement, document or instrument delivered to the Lender by or on behalf of Tenant under an Obligor or otherwise relating to any of the Obligations (collectively, the "Other Documents") and unless expressly set forth in this LeaseAgreement or any Loan Schedule, which such failure is not cured within continues uncured for a period of thirty (30) days following notice by Lender, or (B) any other obligation of written Borrower to the Lender and the failure to observe or perform shall continue uncured for thirty (30) days following notice from Landlord (providedby Lender; provided however that such thirty day period shall be extended if Borrower commences, however, in a reasonably diligent manner to cure such default if Tenant commences such default cannot be cured within such thirty days; provided further that such cure within such 30period shall not be extended beyond seventy-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure)five days; or (ciii) Tenant’s failure to perform any representation or warranty made by or on behalf of Borrower in this Agreement or any Loan Schedule or in any of the obligations of Tenant Other Documents shall at any time prove to have been incorrect or untrue in any material respect when made; or (iv) the manner set forth in Section 10, Borrower's failure to obtain or maintain any insurance required by the Lender hereunder and such failure continues uncured for more than a period of ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the sameby Lender; or (dv) a default occurs in the admission payment of any indebtedness in an amount in excess of $100,000 owed by Tenant Borrower to any individual or entity other than the Lender and such default continues beyond any applicable cure period; or (vi) a default occurs in the performance or observance of the terms of any agreement, document or instrument pursuant to which such indebtedness was created, secured or guaranteed, the effect of which default is to cause or permit the holder of any such indebtedness to cause the same to be due prior to its stated maturity (whether or not such default is waived by the holder thereof); or (vii) Borrower fails (after ten (10) days prior notice thereof) to pay, withhold, collect or remit when asserted or due any tax, assessment or other sum payable with respect to the Collateral or any security for any of the Obligations (including, without limitation, any premium on any insurance policy with respect to any of the Collateral or any security for any of the Obligations, or any insurance policy assigned to the Lender as security for any of the Obligations), or (viii) a judgment is entered against the Borrower in an amount in excess of $25,000 and such judgment is not satisfied, dismissed, bonded or stayed within 30 days, or any attachment, levy or execution is made against any Collateral; or (ix) Borrower enters into any transaction which adversely affects a significant portion of the business value of Borrower and which materially affects the ability of the Borrower to repay the Borrower's obligations under the Agreement; or (x) Borrower fails (or Borrower admits in writing that it cannot meet its obligations inability) to generally pay its debts as they become due or the making by Tenant insolvency or business failure of Borrower; or (xi) the filing of an assignment application for appointment of a trustee, custodian or receiver for Borrower or of any part of Borrower's property (and in the benefit case of an involuntary filing against the Borrower, such filing is not dismissed within Rev. 6/7/99 60 days); or (xii) the filing of a petition in bankruptcy by or against Borrower, or the commencement by or against Borrower of any proceeding under any bankruptcy or insolvency law or statute, or any law or statute relating to the relief of debtors or arrangement of debt, readjustment of indebtedness, reorganization, receivership or composition, or the extension of indebtedness (and in the case of an involuntary filing against the Borrower, such filing is not dismissed within 60 days); or (xiii) a material adverse change in the condition or affairs (financial or otherwise) of Borrower or any other event or circumstance occurs that materially impairs the prospects of full and prompt payment or performance by Borrower of any of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition Obligations; or (xiv) Borrower attempts to any and all other rights remove, sell, transfer, encumber, sublet or remedies Landlord may have in connection part with this Lease, as provided by law or equity, Landlord shall have the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental Equipment or any other amounts due under the terms of this Lease prior item thereof, except as expressly permitted herein; no cure period shall apply to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of 18 (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%xiv). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damages.
Appears in 1 contract
Events of Default Remedies. Each (a) As used herein, the term "Event of Default" shall mean any of the following occurrences shall constitute an “Event of Default”events: (a1) Tenant’s failure to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant Borrower fails to pay any such sum Installment within five (5) Business Days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of after the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they same shall have become due and payable; (2) Borrower or the making by Tenant of any Guarantor becomes insolvent or makes an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition to any and all other rights or remedies Landlord may have in connection with this Lease, as provided by law or equity, Landlord shall have the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b3) terminate this Lease and take possession a receiver, trustee, conservator or liquidator of Borrower or any Guarantor or of all or a substantial part of Borrower's or such Guarantor's assets is appointed with or without the Premises and application or consent of Borrower or such Guarantor, respectively; (4) a petition is filed by or against Borrower or any Guarantor under any bankruptcy, insolvency or similar legislation; (5) Borrower or any Guarantor violates or fails to re-let perform any provision of either the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental Loan Documents or any other amounts due under loan, lease or credit agreement or any acquisition or purchase agreement with KEF or any other party; (6) Borrower violates or fails to perform any covenant or representation made by Borrower in the terms of this Lease prior to terminationLoan Documents; (7) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession any representation or warranty made herein or in any of the Premises without terminating this LeaseLoan Documents, reenter and take possession certificates, financial statements or other statements furnished to KEF (or KEF’s parent, subsidiaries or affiliates) shall prove to be false or misleading in any material respect as of the Premises and remove date on which the same was made; (8) Borrower makes a bulk transfer of furniture, fixtures or other equipment or inventory; (9) there is a material adverse change in Borrower's or any Guarantor's financial condition; (10) Borrower merges or consolidates with any other corporation or entity, or sells, leases or disposes of all persons and property therefrom with or substantially all of its assets without process the prior written consent of lawKEF; (11) without the written consent of KEF, without being deemed guilty which consent shall not be unreasonably withheld, a change in control occurs in Borrower or any Guarantor; (12) the death or dissolution of Borrower or any manner of trespass and without prejudice to Guarantor; (13) any remedies for arrears of the Fixed Rental liens created or other amounts due hereunder granted hereby, or existing breaches hereofintended to be granted or created hereby, and leaseto KEF shall fail to be valid, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit first priority perfected liens subject to no prior or equal lien; or (14) an additional Lien attaches to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) Equipment or the maximum rate Equipment becomes subject to risk of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all seizure or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagesforfeiture.
Appears in 1 contract
Events of Default Remedies. Each of (a) As used herein, the following occurrences shall constitute an term “Event of Default”” shall mean any of the following events: (a1) Tenant’s failure to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant Borrower fails to pay any such sum Installment within five (5) Business Days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of after the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they same shall have become due and payable; (2) Borrower or the making by Tenant of any Guarantor becomes insolvent or makes an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition to any and all other rights or remedies Landlord may have in connection with this Lease, as provided by law or equity, Landlord shall have the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b3) terminate this Lease and take possession a receiver, trustee, conservator or liquidator of Borrower or any Guarantor or of all or a substantial part of Borrower’s or such Guarantor’s assets is appointed with or without the Premises and application or consent of Borrower or such Guarantor, respectively; (4) a petition is filed by or against Borrower or any Guarantor under any bankruptcy, insolvency or similar legislation; (5) Borrower or any Guarantor violates or fails to re-let perform any provision of either the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental Loan Documents or any other amounts due under loan, lease or credit agreement or any acquisition or purchase agreement with KEF or any other party; (6) Borrower violates or fails to perform any covenant or representation made by Borrower in the terms of this Lease prior to terminationLoan Documents; (7) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession any representation or warranty made herein or in any of the Premises without terminating this LeaseLoan Documents, reenter and take possession certificates, financial statements or other statements furnished to KEF (or KEF’s parent, subsidiaries or affiliates) shall prove to be false or misleading in any material respect as of the Premises and remove date on which the same was made; (8) Borrower makes a bulk transfer of furniture, fixtures or other equipment or inventory; (9) there is a material adverse change in Borrower’s or any Guarantor’s financial condition; (10) Borrower merges or consolidates with any other corporation or entity, or sells, leases or disposes of all persons and property therefrom with or substantially all of its assets without process the prior written consent of lawKEF; (11) without the written consent of KEF, without being deemed guilty which consent shall not be unreasonably withheld, a change in control occurs in Borrower or any Guarantor; (12) the death or dissolution of Borrower or any manner of trespass and without prejudice to Guarantor; (13) any remedies for arrears of the Fixed Rental liens created or other amounts due hereunder granted hereby, or existing breaches hereofintended to be granted or created hereby, and leaseto KEF shall fail to be valid, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit first priority perfected liens subject to no prior or equal lien; or (14) an additional Lien attaches to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) Equipment or the maximum rate Equipment becomes subject to risk of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all seizure or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagesforfeiture.
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Events of Default Remedies. Each (a) Upon the occurrence of the following occurrences shall constitute an “Event of Default”, Lender may do any one or more of the following: (ai) Tenant’s failure Exercise as to pay Fixed Rentalany or all of the Collateral all the rights, powers and remedies of an owner, subject to the Section entitled “VOTING RIGHTS”. (ii) Enforce the security interest given hereunder pursuant to the UCC and any other applicable law. (iii) Sell all or any other sums due from Tenant to Landlord under this Lease (providedpart of the Collateral at public or private sale in accordance with the UCC, howeverwithout advertisement, no in such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay manner and order as Lender may elect. Lender may purchase the Collateral for its own account at any such sum within five (5) Business Days after receipt of a written sale. Lender shall give Pledgor such notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, any public or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time private sale as may be reasonably necessary required by the UCC, provided that to effect the extent notice of any such cure); (c) Tenant’s failure sale is required by the UCC or other applicable law, Pledgor agrees that at least 10 days notice to perform any Pledgor of the obligations time and place of Tenant any public sale or the time after which any private sale is to be made shall constitute reasonable notification and provided further that, if Lender fails to comply with this sentence in any respect, its liability for such failure shall be limited to the manner set forth in Section 10liability (if any) imposed on it as a matter of law under the UCC or other applicable law. Pledgor acknowledges that Collateral may be sold at a loss to Pledgor, and that, in such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition to any and all other rights or remedies Landlord may have in connection with this Leaseevent, as provided by law or equity, Landlord Lender shall have no liability or responsibility to Pledgor for such loss. Pledgor further acknowledges that a private sale may result in prices and other terms less favorable to the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Leaseseller than if such sale were a public sale and, notwithstanding such circumstances, agrees that no such private sale shall, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed extent permitted by applicable law, and shall pay be deemed not to Landlord the be “commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion reasonable” solely as a result of the Premises, including the cost of removing and storing Tenant’s personal property such prices and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvementssale terms. Upon any re-letting such sale, Lender shall have the right to deliver, assign and transfer to the buyer thereof the Collateral so sold. Each buyer at any such sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Pledgor, to the Premises extent permitted by Landlordlaw, hereby specifically waives all rent received by Landlord rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted. Without limiting any other rights and remedies available to Lender, Pledgor expressly acknowledges and agrees that with respect to Collateral consisting of notes, bonds or other securities which are not sold on a recognized market, Lender shall be applied (i) first deemed to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any have conducted a commercially reasonable and related costs and expenses sale of such reCollateral if (a) such sale is conducted by any nationally recognized broker-letting dealer (including brokerage fees and attorney’s fees and costs any affiliate of alterations and repairsLender), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary investment Lender or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damages.any
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Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure to pay Fixed Rental, or If any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph and be continuing the Agent may and at the request of the Required Term Lenders with respect to the Term Loans and at the request of the Required Revolving Lenders with respect to the Revolving Loan shall by notice to the Borrower Representative take any of the following actions: (a1) unless Tenant fails declare the Maturity Date to pay any such sum within five (5) Business Days after receipt of a written notice of default from Landlordhave occurred with respect to Term Loans the Revolving Loan or all Loans as the case may be and all Lender Debt related thereto shall become immediately due and payable in full; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period terminate all commitments and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any obligations of the obligations of Tenant in Term Lenders hereunder; and (3) with respect to the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant declaration of an assignment for the benefit of its creditors. Any Event of Default relating to the Revolving Loan (A) terminate all commitments and obligations of the Revolving Lenders hereunder and (B) without limiting any rights hereunder and subject to applicable law replace the Borrowers in their performance of any or all of its Receivables servicing responsibilities. If an Event of Default under clause (9) of Section 12.1 occurs the Maturity Date will be deemed to have occurred automatically and without notice and all Lender Debt shall automatically become immediately due and payable and all commitments and obligations of the Revolving Lenders shall be considered a breach terminated without any \39109424 Case 14-10367-PJW Doc 106 Filed 03/07/14 Page 66 of this Lease by Tenant192 notice or demand of any kind. In Upon any such declaration or designation the Agent and the Lenders shall have in addition to any the rights and remedies which it may have under this Agreement all other rights or and remedies Landlord may have in connection with this Lease, as provided by after default under the UCC and under other applicable law or equity, Landlord shall have the following which rights and remedies upon the occurrence of shall be cumulative. Each Lender agrees that it will not have any Event of Default: (a) without terminating right individually to enforce or seek to enforce this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental Agreement or any other amounts due under the terms of this Lease prior Loan Document or to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of realize upon any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all Collateral for the account of Tenant, Lender Debt it being understood and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of agreed that such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest may be exercised only by the Agent in its discretion granted hereunder or at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion direction of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagesapplicable Lenders as set forth hereunder.
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Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition to any and all other rights or remedies Landlord may have in connection with this Lease, as provided by law or equity, Landlord shall have the following rights and remedies Immediately upon the occurrence of any and during the continuance of an Event of Default: Default (as defined in the Amended and Restated Note), (a) without terminating this Lease, the Lender may declare all obligations owing under the DIP Loan Documents immediately due and payable and may declare the termination of any further commitment to change the locks on the doors extend credit to the Premises Debtors to the extent any such commitment remains (the declaration of any of the foregoing being referred to herein as a "Termination Declaration” and the date of such declaration being referred to exclude Tenant therefrom; herein as the "Termination Declaration Date”), and (b) terminate this Lease the default interest rate set forth in the Amended and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease Restated Note shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit be automatically applicable to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%)DIP Obligations. In addition to the foregoing remedies and other customary remedies, Tenant the automatic stay imposed by section 362 of the Bankruptcy Code otherwise applicable to the Lender is hereby modified so that upon the occurrence and during the continuance of an Event of Default, and following the giving of five (5) days written notice (the “Remedies Notice Period”) to the Debtors, the Creditors’ Committee, the Equity Committee, and the United States Trustee, the Lender shall be required entitled to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting foreclose on all or any portion of the PremisesCollateral, including collect accounts receivable and apply the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first proceeds thereof to the payment of any indebtedness other than rent DIP Obligations, occupy the Debtors’ premises to fulfill orders and sell the Collateral or other charges due under this Lease from Tenantotherwise exercise remedies against the Collateral permitted by applicable non-bankruptcy law. During the Remedies Notice Period, (ii) second to the payment of any reasonable Debtors, the Creditors’ Committee and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event Equity Committee shall the Tenant be entitled to receive any surplus an emergency hearing with the Court solely with respect to the issue of any sums received by Landlord on re-letting whether an Event of Default has occurred and is continuing, and, unless ordered otherwise prior to the Premises, in excess expiration of the rent Remedies Notice Period, the automatic stay, as to the Lender, shall be automatically and other charges payable under irrevocably terminated at the end of the Remedies Notice Period and without further notice or order. Nothing contained in this Lease. In no event Final Order or otherwise shall Tenant be liable for consequential, punitive, exemplary construed to obligate the Lender in any way to lend or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts advance any Loans to mitigate damagesthe Debtors upon or after the occurrence of an Event of Default.
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Samples: Security Agreement (Xybernaut Corp)
Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure The following events shall be deemed to pay Fixed Rental, or any other sums due from Tenant to Landlord under this Lease (provided, however, no such Event of Default shall occur under this subparagraph (a) unless Tenant fails to pay any such sum within five (5) Business Days after receipt of a written notice be events of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe any other agreement or obligation of by Tenant under this Lease: (i) Tenant shall fail to pay any Rent or other sum of money due hereunder and such failure shall continue for a period of TEN (10) DAYS AFTER TENANT'S RECEIPT OF NOTICE THEREOF FROM LANDLORD; PROVIDED, HOWEVER, THAT LANDLORD SHALL NOT BE REQUIRED TO PROVIDE TENANT WITH THE NOTICE AND TEN-DAY PERIOD SET FORTH IN THIS SUBPARAGRAPH MORE THAN THREE (3) TIMES DURING ANY LEASE YEAR, AND THE FOURTH AND EACH SUBSEQUENT FAILURE TO TIMELY PAY SUCH SUMS DURING ANY LEASE YEAR SHALL IMMEDIATELY CONSTITUTE AN EVENT OF DEFAULT HEREUNDER; (ii) Tenant shall fail to comply with any provision of this Lease or any other agreement between Landlord and Tenant not requiring the payment of money, all of which terms, provisions and covenants shall be deemed material, and such failure is not cured within shall continue for a period of thirty (30) days of (or immediately if the failure involves a hazardous condition) after written notice from Landlord of such default is delivered to Tenant; PROVIDED, THAT IN THE EVENT ANY SUCH FAILURE IS NOT REASONABLY SUSCEPTIBLE OF CURE WITHIN SUCH THIRTY (provided30)-DAY PERIOD, howeverTENANT SHALL HAVE A REASONABLE TIME TO CURE SUCH FAILURE (NOT TO EXCEED NINETY (90) DAYS TOTAL), if Tenant commences such cure within such 30-day period and diligently pursues such curePROVIDED TENANT COMMENCES CURE AS SOON AS IS REASONABLY POSSIBLE, Tenant may have such additional time as may be reasonably necessary to effect such cure)AND PROSECUTES SUCH CURE DILIGENTLY TO COMPLETION; (ciii) the leasehold hereunder demised shall be taken on execution, levied upon or attached or other process of law in any action against Tenant’s failure ; (iv) Tenant notifies Landlord, at any time prior to perform any the Commencement Date, that Tenant does not intend to take occupancy of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition to any and all other rights or remedies Landlord may have in connection with this Lease, as provided by law or equity, Landlord shall have the following rights and remedies Premises upon the occurrence of any Event of Default: (a) without terminating this Lease, Commencement Date or Tenant shall fail to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease promptly move into and take possession of the Premises and to re-let when the Premises are ready for the Landlord’s account (no termination of this Lease occupancy or shall relieve the Tenant of the obligation cease to pay any Fixed Rental do business in, vacate or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or abandon any portion of the Premises; (v) Tenant shall become insolvent or unable to pay its debts as they become due, including or Tenant notifies Landlord that it anticipates either condition, (vi) Tenant takes any action to, or notifies Landlord that Tenant intends to, file a petition under any section or chapter of the cost United States Bankruptcy Code, as amended from time to time, or under any similar law or statute of removing and storing the United States or any State thereof; or a petition shall be filed against Tenant under any such statute or Tenant or any creditor of Tenant notifies Landlord that it knows such a petition will be filed or has been filed or Tenant notifies Landlord that it expects such a petition to be filed; or (vii) a receiver or trustee shall be appointed for Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making 's leasehold interest in the Premises ready or for all or a new tenant, including the cost of leasehold improvements. Upon any re-letting substantial part of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment assets of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damages.
Appears in 1 contract
Samples: Office Lease Agreement (Triton Network Systems Inc)
Events of Default Remedies. Each of the following occurrences If Tenant shall constitute an “Event of Default”at any time: (a) Tenant’s failure to pay Fixed Rental, be in default in the payment of rental or any other sums due from charges hereunder or in the performance of any of the covenants of this Lease, and Tenant shall fail to Landlord under this Lease remedy such default within ten (provided10) days after receipt of written notice thereof (for the first default in any twelve (12) month period; thereafter, however, no for any subsequent default during such Event of Default period Tenant shall occur under this subparagraph (a) unless be deemed to be default Tenant fails to pay remedy such default within ten (10) days from the original due date therefor, without any written notice from Landlord) from Landlord if such sum within five default is as to payment of Minimum Rent, ten (510) Business Days days after receipt of a written notice of thereof (for the first default in any twelve (12) month period; thereafter, for any subsequent default during such period Tenant shall be deemed to be in default if Tenant fails to remedy such default within ten (10) days from the original due date therefor, without any written notice from Landlord; provided, however, that ) if such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply withdefault is the payment of any other charges, or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days after receipt of written notice from Landlord thereof if such default nonmonetary (provided, however, but Tenant shall not be deemed in default if Tenant it commences to remedy such cure default within such said thirty (30-) day period and diligently pursues such cureproceeds therewith' with due diligence), or (b) proceedings under the Bankruptcy Code shall be instituted by or against Tenant may have such additional time as may and the same shall not be reasonably necessary to effect such cure); dismissed by the Court within ninety (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (1090) days following Tenant’s receipt of Landlord’s written notice to after being filed, or if Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of shall make an assignment for the benefit of its creditors. Any Event , or if a receiver of Default any property of Tenant or upon the Premises be appointed any action, suit or proceeding by or against Tenant and not removed within sixty (60) days after appointment, or any event shall happen (other than a permitted assignment or sublease hereunder) which, aside from this provision, would cause any assignment or devolution of Tenant's interest or occupancy hereunder by operation of law; (c) the interest of Tenant the Premises shall be considered a breach sold under execution or other legal process; (d) commit waste upon the Premises; (e) fail to vacate the Premises immediately upon termination of this Lease by Tenant. In addition to any and all other rights or remedies Landlord may have in connection with this Lease, as provided by law lapse of time or equityotherwise; Landlord may by notice to Tenant, Landlord shall have the following rights and remedies upon the occurrence of any Event of Default: (a) this Lease, or without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of enter the Premises by Landlordsummary proceedings, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent proceedings in forcible entry and detainer, eviction, or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs)otherwise, and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damagesmay dispossess Tenant.
Appears in 1 contract
Samples: Lease
Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure The following events shall be deemed to pay Fixed Rental, or any other sums due from be events of default by Tenant to Landlord under this Lease Lease: (provided, however, no such Event of Default i) Tenant shall occur under this subparagraph (a) unless Tenant fails fail to pay any Rent or other sum of money due hereunder and such sum within failure shall continue for a period of five (5) Business Days days after receipt of a written notice of default from Landlord; provided, however, that the date such notice shall not be required more than two (2) times in a given calendar year)sum is due; (bii) Tenant’s failure Tenant shall fail to perform, comply with, with any provision of this Lease or observe any other agreement or obligation between Landlord and Tenant (including the Work Letter) not requiring the payment of Tenant under this Leasemoney, all of which failure is not cured within thirty (30) days of written notice from Landlord (providedterms, however, if Tenant commences such cure within such 30-day period provisions and diligently pursues such cure, Tenant may have such additional time as may covenants shall be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, deemed material and such failure continues shall continue for more than a period of ten (10) days following Tenant’s receipt of Landlord’s after written notice of such default is delivered to Tenant; (iii) the Leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant; (iv) Tenant notifies Landlord, at any time prior to the Commencement Date, that Tenant does not intend to take occupancy of the samePremises upon the commencement of the Lease Term; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition fail to any and all other rights or remedies Landlord may have in connection with this Lease, as provided by law or equity, Landlord shall have the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease promptly move into and take possession of the Premises and to re-let when the Premises are Ready for the Landlord’s account (no termination of this Lease Occupancy or shall relieve the Tenant of the obligation cease to pay any Fixed Rental do business in or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or abandon any portion of the Premises; (v) Tenant shall become insolvent or unable to pay its debts as they become due, including or Tenant notifies Landlord that it anticipates either condition; (vi) Tenant takes any action to, or notifies Landlord that Tenant intends to file a petition under any section or chapter of the cost Bankruptcy Code, as amended from time to time, or under any similar law or statute of removing and storing the United States or any State thereof; or a petition shall be filed against Tenant under any such statute; or Tenant or any creditor of Tenant notifies Landlord that it knows such a petition will be filed; or Tenant notifies Landlord that it expects such a petition to be filed; or (vii) a receiver or trustee shall be appointed for Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making 's Leasehold Interest in the Premises ready or for all or a new tenant, including the cost of leasehold improvements. Upon any re-letting substantial part of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment assets of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) in connection with this Lease. Landlord shall use commercially reasonable efforts to mitigate damages.
Appears in 1 contract
Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure The following events shall be deemed to pay Fixed Rental, or any other sums due from be events of default by Tenant to Landlord under this Lease Lease: (provided, however, no such Event of Default shall occur under this subparagraph (ai) unless Tenant fails to pay any such sum within five (5) Business Days after receipt installment of a written notice of default from Landlord; provided, however, that such notice shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, Base Rental or observe any other agreement or obligation of Tenant under this Lease, which failure is not cured within thirty (30) days of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, Additional Rent when due and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s after Tenant is given written notice of such failure (provided, however, Tenant shall not be entitled to such notice and cure period more than twice in any calendar year during the Lease Term); (ii) Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach fails to comply with any provision of this Lease by Tenant. In addition to any (other than clauses (iii), (iv), (v), (vi) and (vii) in this Paragraph 28(a)), all other rights of which terms, provisions and covenants shall be deemed material and such failure continues for more than thirty (30) days after Tenant is given written notice of such failure (provided such 30-day notice and cure period for non-monetary defaults shall be decreased or remedies Landlord may have in connection with this Leasedispensed with, as provided reasonably required, in cases of emergency or in circumstances where such failure will result in a default by law or equity, Landlord shall have under other leases of space in the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined belowBuilding); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and leasehold hereunder demised is taken on execution or other charges and adjustments called for process of law in any action against Tenant; (iv) Tenant becomes insolvent or unable to pay its debts as they become due; (v) Tenant takes any action to or notifies Landlord that Tenant intends to file a petition under this Lease for the balance any section or chapter of the term after the United States Bankruptcy Code, as amended from time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award to time, or under any similar law or statute of the sums referred United States or any State thereof; or a petition shall be filed against Tenant under any such statute or Tenant or any creditor of Tenant's notifies Landlord that it knows such a petition will be filed or Tenant notifies Landlord that it expects such a petition to be filed; or (vi) a receiver or trustee is appointed for Tenant's leasehold interest in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate Premises or for all or a substantial part of the Federal Reserve Bank assets of San Francisco at the time of award plus one percent (1%)Tenant. In addition to Provided, however, and notwithstanding the foregoing remediesprovisions in this Paragraph 28(a), Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant not be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent notice and other charges payable under this Lease. In no event shall Tenant be liable for consequential, punitive, exemplary or other damages (other than actual damages only) cure period in connection with this Lease. Landlord shall use commercially reasonable efforts Tenant's obligation to mitigate damagesvacate the Premises at the end of the Lease Term.
Appears in 1 contract
Events of Default Remedies. Each of the following occurrences shall constitute an “Event of Default”: (a) Tenant’s failure Except in the event of an emergency and after the expiration of any applicable grace periods, the following events shall be deemed to be events of default by Tenant under this Lease: (i) Tenant shall fail to pay Fixed Rental, any rent or any other sums of money due from hereunder and such failure shall continue for a period of five (5) business days after the date sum is due; (ii) Tenant shall fail to Landlord under comply with any material provision of this Lease or any other agreement between Landlord and Tenant including the Work Letter; (providediii) the leasehold hereunder demised shall be taken on execution or other process of law in any action against Tenant; (iv) Tenant shall fail to promptly move in or take possession of and operate its business on the Premises when the Premises are ready for occupancy; (v) Tenant shall become insolvent or unable to pay its debts as they become due or Tenant notifies Landlord that it anticipates either condition; (vi) Tenant takes any action to or notifies Landlord that Tenant intends to file a petition under any section or chapter of the Federal Bankruptcy Act as amended, howeveror under any similar law or statute of the United States or any State thereof, no or a petition shall be filed against Tenant under any such Event statute or Tenant or any creditor of Default Tenant notifies Landlord that it knows such a petition will be filed or Tenant notifies Landlord that it expects such a petition to be filed; or (vii) 18 <PAGE> a receiver or trustee shall occur under be appointed for Tenant's leasehold interest in the Premises or for all or a substantial part of the assets of Tenant. (b) Upon the occurrence of any event or events of default or other breach of this subparagraph (a) unless Lease by Tenant fails not arising from Tenant's failure to pay any such sum rent or other sums of money due hereunder within five (5) Business Days after receipt business days of the due dates and whether such default or defaults are enumerated in this Paragraph or not, then if Tenant fails to cure any such default within ten (10) days of written notice from Landlord, Landlord shall have the option to pursue any one or more of the following remedies: (i) Landlord shall have the right at its election to cancel and terminate this Lease and dispossess Tenant; or, (ii) Landlord shall have the right without terminating or cancelling this Lease to declare all amounts and rents due under this Lease for the remainder of the existing term (or any applicable extension or renewal thereof) to be immediately due and payable, and thereupon all rents and other charges due hereunder to the end of the initial term or any renewal term if applicable, shall be accelerated; (iii) Landlord may elect to enter and repossess the Premises and relet the Premises for Tenant's account, holding Tenant liable in damages for all expenses incurred in any such reletting and for any difference between the amount of rent received from such reletting and the rent due and payable under the terms of this Lease; (iv) Landlord may enter upon the Premises and do whatever Tenant is obligated to do under this Lease. If Tenant is in default for any reason which would require written notice from Landlord, and if such default cannot reasonably be expected to be cured within the said ten (10) day period then Tenant shall have a reasonable period of time to effect such cure provided that Tenant promptly commences the cure and proceeds diligently to completion of same. (c) In the event of any default by Tenant arrising from the failure to pay rent or any other sum due hereunder within the five (5) day period provided in subparagraph (a)(i) above, Landlord may immediately exercise any remedy provided in subparagraph (b) above without being first required to give Tenant written notice of default from Landlord; providedsuch default. (d) This Paragraph 27 shall be enforceable to the maximum extent not prohibited by applicable law, however, that such notice and the unenforceability of any portion hereof shall not be required more than two (2) times in a given calendar year); (b) Tenant’s failure to perform, comply with, or observe thereby render unenforceable any other agreement or obligation portion. (e) Landlord shall be in default hereunder in the event Landlord has not begun and pursued with reasonable diligence the cure of Tenant under this Lease, which any failure is not cured of Landlord to meet its obligations hereunder within thirty (30) days of the receipt by Landlord of written notice from Landlord (provided, however, if Tenant commences such cure within such 30-day period and diligently pursues such cure, Tenant may have such additional time as may be reasonably necessary to effect such cure); (c) Tenant’s failure to perform any of the obligations of Tenant in the manner set forth in Section 10, and such failure continues for more than ten (10) days following Tenant’s receipt of Landlord’s written notice to Tenant of the same; or (d) the admission by Tenant in writing that it cannot meet its obligations as they become due or the making by Tenant of an assignment for the benefit of its creditors. Any Event of Default shall be considered a breach of this Lease by Tenant. In addition alleged failure to any and all other rights or remedies Landlord may have in connection with this Lease, as provided by law or equity, Landlord shall have the following rights and remedies upon the occurrence of any Event of Default: (a) without terminating this Lease, to change the locks on the doors to the Premises and to exclude Tenant therefrom; (b) terminate this Lease and take possession of the Premises and to re-let the Premises for the Landlord’s account (no termination of this Lease shall relieve the Tenant of the obligation to pay any Fixed Rental or any other amounts due under the terms of this Lease prior to termination) and recover the Landlord’s Liquidated Damages (as defined below); and (c) Landlord may terminate Tenant’s right to possession of the Premises without terminating this Lease, reenter and take possession of the Premises and remove all persons and property therefrom with or without process of law, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of the Fixed Rental or other amounts due hereunder or existing breaches hereof, and lease, manage, and operate the Premises and collect the rents, issues, and profits therefrom all for the account of Tenant, and credit to the satisfaction of Tenant’s obligations under this Lease the net rental received (after deducting therefrom all reasonable costs and expenses of repossessing, leasing, managing, and operating the Premises). The term “Landlord’s Liquidated Damages” for purposes of this Section means the worth at the time of award by the court having jurisdiction thereof of (i) the unpaid Fixed Rental and other charges and adjustments called for under the Lease which had been earned at the time of termination, (ii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under the Lease which would have been earned after termination until the time of award exceeds the amount of such Fixed Rental loss for the same period which the Tenant proves could have been reasonably avoided, and (iii) the amount by which the unpaid Fixed Rental and other charges and adjustments called for under this Lease for the balance of the term after the time of such award exceeds the amount of such Fixed Rental loss for the same period that Tenant proves could be reasonably avoided. The worth at the time of award of the sums referred to in subsections (i) and (ii) above, is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In addition to the foregoing remedies, Tenant shall be required to pay all expenses reasonably incurred by Landlord in enforcing its rights and remedies under this Lease, including attorneys’ fees, court costs and interest at the lesser of ten percent (10%) or the maximum rate of interest allowed by applicable law, and shall pay to Landlord the commercially reasonable costs, losses and expenses incurred by Landlord in reletting all or any portion of the Premises, including the cost of removing and storing Tenant’s personal property and other property, repairing the Premises, removing and/or replacing Tenant’s signage, and making the Premises ready for a new tenant, including the cost of leasehold improvements. Upon any re-letting of the Premises by Landlord, all rent received by Landlord shall be applied (i) first to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant, (ii) second to the payment of any reasonable and related costs and expenses of such re-letting (including brokerage fees and attorney’s fees and costs of alterations and repairs), and (iii) third to the payment of all Fixed Rental and other charges due and unpaid under this Lease. In no event shall the Tenant be entitled to receive any surplus of any sums received by Landlord on re-letting the Premises, in excess of the rent and other charges payable under this Leaseperform. In no event shall Tenant have the right to terminate or rescind this Lease as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof whether in this Lease or elsewhere. Tenant hereby waives such remedies of termination and recession and hereby agrees that Tenant's remedies for default hereunder and for breach of any promise or inducement by Landlord shall be limited to a suit for damages and/or injunction. In addition, Tenant hereby covenants that prior to the exercise of any such remedies it will give the mortgagees holding mortgages on the Building notice and reasonable time to cure any default by Landlord. 19 <PAGE> (f) Tenant agrees to reimburse Landlord on demand for any expenses which Landlord may occur in effecting compliance with Tenant's obligations under this lease and Tenant further agrees that Landlord shall not be liable for consequential, punitive, exemplary or other any such damages (other than actual damages only) in connection with this Leaseresulting to the Tenant from such action. All such remedies of Landlord shall use commercially reasonable efforts be cumulative, and in addition Landlord may pursue any other remedies that may be permitted by law or in equity. Forbearance by Landlord to mitigate damagesenforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default or remedy. 28.
Appears in 1 contract
Samples: Office Lease Agreement
