|
12.2 Remedies. If Tenant fails to perform any at firm ative duty or obligation of Tenant under this Lease, within ten (10)
<br />days after written notice to Tenant (or in case of an emergency, without notice), Landlord may at Its option (but without obligation
<br />to do so), perform such duty or obligation on Tenant's behalf, including but not limited to the obtaining of reasonably required bonds,
<br />insurance policies, or governmental licenses, permits or approvals. The costs and expenses of any such performance by Landlord
<br />shall be due and payable by Tenant to Landlord upon invoice therefor. If any check given to Landlord by Tenant shall not be honored
<br />by the bank upon which it is drawn, Landlord, at its option, may require all future payments to be made under this Lease by Tenant
<br />to be made only by cashier's check. In the event of a Breach of this Lease by Tenant, as defined in Paragraph 12.1, with or without
<br />further notice or demand, and without limiting Landlord in the exercise of any right or remedy which Landlord may have by reason
<br />of such Breach, Landlord may:
<br />(a) Terminate Tenant's right to possession of the Premises by any lawful means, in which case this Lease and
<br />the Term hereof shall terminate and Tenant shall immediately surrender possession of the Premises to Landlord. In such event
<br />Landlord shall be entitled to recover from Tenant: (i) the worth at the time of the award of the unpaid rent which had been earned
<br />at the time of termination, Oil, the worth at the time of award of the amount by which the unpaid rent which would have been earned
<br />after termination until the time of award exceeds the amount of such rental loss that the Tenant proves could have been reasonably
<br />avoided, (iii) the worth at the time of award of the amount by which the unpaid rent for the balance of the Term after the time of
<br />award exceeds the amount of such rental loss that the Tenant proves could be reasonably avoided; and (iv) any other amount
<br />necessary to compensate Landlord for all the detriment proximately caused by the Tenant's failure to perform its obligations under
<br />this Lease or which in the ordinary course of things would be likely to result therefrom, including but not limited to the cost to
<br />recovering possession of the Premises, expenses of reletling, including necessary renovation and alteration of the Premises,
<br />reasonable attorneys' fees, and that portion of the leasing commission paid by Landlord applicable to the unexpired Term of this
<br />Lease. The worth at the time of award of the amount referred to in provision (III) of the prior sentence shall be computed by
<br />discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent.
<br />Efforts by Landlord to mitigate damages caused by Tenant's Default or Breach of this Lease shall not waive Landlord's right to
<br />recover damages under this Paragraph. If termination of this Lease Is obtained through the provisional remedy of unlawful detainer,
<br />Landlord shall have the right to recover in such proceeding the unpaid rent and damages as are recoverable therein, or Landlord may
<br />reserve therein the right to recover all or any part thereof in a separate suit for such rent and/or damages. If a notice and grace
<br />period required under Subparagraphs 1 2.1(b), 1pJ or M was not previously given, a notice to pay rent or quit, or to perform or quit,
<br />as the case may be, given to Tenant under any statute authorizing the forfeiture of leases for unlawful detainer shall also constitute
<br />the applicable notice for grace period purposes required by Subparagraphs 12.1(b), ll or ll. In such case, the applicable grace
<br />period under Subparatraphs 12.1(b), U or ll and under the unlawful detainer statute shall run concurrently after the one such
<br />statutory notice, and the failure of Tenant to cure the Default within the greater of the two such grace periods shall constitute both
<br />an unlawful detainer and a Breach of this Lease entitling Landlord to the remedies provided for in this Lease and/or by said statute.
<br />(b) Continue the Lease and Tenant's right to possession in effect (under California Civil Code Section 1951.4)
<br />after Tenant's Breach and abandonment and recover the rent as it becomes due, provided Tenant has the right to sublet or assign,
<br />subject only to reasonable limitations. See Paragraphs 11 and 34 for the limitations on assignment and subletting which limitations
<br />Tenant and Landlord agree are reasonable. Acts of maintenance or preservation, efforts to total the Premises, or the appointment
<br />of a receiver to protect the Landlord's interest under the Lease, shall not constitute a termination of the Tenant's right to possession.
<br />(c) Pursue any other remedy now or hereafter available to Landlord under the laws or judicial decisions of the
<br />state wherein the Premises are located.
<br />(d) The expiration or termination of this Lease and/or the termination of Tenant's right to possession shall not
<br />relieve Tenant from liability under any indemnity provisions of this Lease as to matters occurring or accruing during the Term hereof
<br />or by reason of Tenant's occupancy of the Premises.
<br />12.3 Late Charges. Tenant hereby acknowledges that late payment by Tenant to Landlord of rent and other sums due
<br />hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult
<br />to ascertain. Such costs include, but are not limited to, processing and accounting charges, and fate charges which may be imposed
<br />upon Landlord by the terms of any ground lease, mortgage or trust deed covering the Premises. Accordingly, if any installment of
<br />rent or any other sum due from Tenant shall not be received by Landlord or Landlord's designee within five (5) days after such
<br />amount shall be due, then, without any requirement for notice to Tenant, Tenant shall pay to Landlord a late charge equal to six
<br />percent (6%) of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate
<br />of the costs Landlord will incur by reason of late payment by Tenant. Acceptance of such late charge by Landlord shall in no event
<br />constitute a waiver of Tenant's Default or Breach with respect to such overdue amount, nor prevent Landlord from exercising any
<br />of the other rights and remedies granted hereunder. In the event that a late charge is payable hereunder, whether or not collected,
<br />for three (3) consecutive installments of Base Rent, then notwithstanding Paragraph 4.1 or any other provision of this Lease to the
<br />contrary, Base Rent shall, at Landlord's option, become due and payable quarterly in advance.
<br />12.4 Breach by Landlord. Landlord shall not be deemed in breach of this Lease unless Landlord fails within a reasonable
<br />time to perform an obligation required to be performed by Landlord. For purposes of this Paragraph 12.4, a reasonable time shall
<br />in no event be less than thirty (30) days after receipt by Landlord, and by the holders of any ground lease, mortgage or deed of trust
<br />covering the Premises whose name and address shall have been furnished Tenant in writing for such purpose, of written notice
<br />specifying wherein such obligation of Landlord has not been performed; provided, however, that if the nature of Landlord's obligation
<br />is such that more than thirty (30) days after such notice are reasonably required for its performance, then Landlord shall not be in
<br />breach of this Lease if performance is commenced within such thirty (30) day period and thereafter diligently pursued to completion.
<br />13. Condemnation. If the Premises or any portion thereof are taken under the power of eminent domain or sold under the threat
<br />of the exercise of said power (all of which are herein called "condemnation"), this Lease shall terminate as to the part so taken as
<br />of the date the condemning authority takes title or possession, whichever first occurs. If more than ten percent (10%) of the floor
<br />area of the Premises, or a material portion of the Common Areas, is taken by condemnation and such taking materially interferes
<br />with Tenant's use of the Premises, Tenant may, at Tenant's option, to be exercised in writing within ten If 0) days after Landlord
<br />shall have given Tenant written notice of such taking for in the absence of such notice, within ten 00) days after the condemning
<br />authority shall have taken possession) terminate this Lease as of the date the condemning authority takes such possession. If
<br />Tenant does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the
<br />portion of the Premises remaining, except that the Base Rent shall be reduced in the same proportion as the rentable floor area of
<br />the Premises taken bears to the total rentable floor area of the Premises prior to such taking. No reduction of Base Rent shall occur
<br />with respect to any taking of Common Areas. Any award for the taking of all or any part of the Premises under the power of
<br />eminent domain or any payment made under threat of the exercise of such power shall be the property of Landlord, whether such
<br />award shall be made as compensation for diminution in value of the leasehold or for the taking of the fee, or as severance damages;
<br />provided, however, that Tenant shall be entitled to any compensation separately awarded to Tenant for Tenant's relocation expenses
<br />and/or loss of Tenant's Trade Fixtures. In the event that this Lease is not terminated by reason of such condemnation, Landlord
<br />shall to the extent of its net severance damages received, over and above the legal and other expenses incurred by Landlord in the
<br />condemnation matter, repair any damage to the Premises caused by such condemnation, except to the extent that Tenant has been
<br />reimbursed therefor by the condemning authority. Tenant shall be responsible for the payment of any amount in excess of such
<br />net severance damages required to complete such repair.
<br />MrAscicrsr n. xvr: Page 10 os/oein
<br />
|