AMOUNT NECESSARY TO COMPENSATE LANDLORD FOR ALL THE DETRIMENT PROXIMATELY
CAUSED BY TENANT'S FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS LEASE OR WHICH
IN THE ORDINARY COURSE OF EVENTS WOULD BE LIKELY TO RESULT THEREFROM.
18
B.
Measure of Damages.
(1)
CALCULATION.
IF LANDLORD EITHER TERMINATES THIS LEASE OR
TERMINATES TENANT'S RIGHT TO POSSESSION OF THE PREMISES, TENANT SHALL
IMMEDIATELY SURRENDER AND VACATE THE PREMISES AND PAY LANDLORD ON DEMAND:
(A)
ALL RENT ACCRUED THROUGH THE END OF THE MONTH IN WHICH THE TERMINATION BECOMES
EFFECTIVE; (B) INTEREST ON ALL UNPAID RENT FROM THE DATE DUE AT A RATE EQUAL TO
THE LESSER OF 18% PER ANNUM OR THE HIGHEST INTEREST RATE PERMITTED BY APPLICABLE
LAW; (C) ALL EXPENSES REASONABLY INCURRED BY LANDLORD IN ENFORCING ITS RIGHTS
AND REMEDIES UNDER THIS LEASE, INCLUDING ALL REASONABLE LEGAL EXPENSES; (D)
COSTS OF RELETTING (DEFINED BELOW); AND (E) ALL LANDLORD'S RENTAL DAMAGES
(DEFINED BELOW).
IN THE EVENT THAT LANDLORD RELETS THE PREMISES FOR AN AMOUNT
GREATER THAN THE RENT DUE DURING THE TERM, TENANT SHALL NOT RECEIVE A CREDIT FOR
ANY SUCH EXCESS.
(2)
DEFINITIONS.
"COSTS OF RELETTING" SHALL INCLUDE COMMERCIALLY
REASONABLE COSTS, LOSSES AND EXPENSES INCURRED BY LANDLORD IN RELETTING ALL OR
ANY PORTION OF THE PREMISES INCLUDING, WITHOUT LIMITATION, THE COST OF REMOVING
AND STORING TENANT'S FURNITURE, TRADE FIXTURES, EQUIPMENT, INVENTORY OR OTHER
PROPERTY, REPAIRING AND/OR DEMOLISHING THE PREMISES, REMOVING AND/OR REPLACING
TENANT'S SIGNAGE AND OTHER FIXTURES, MAKING THE PREMISES READY FOR A NEW TENANT,
INCLUDING THE COST OF ADVERTISING, COMMISSIONS, ARCHITECTURAL FEES, LEGAL FEES
AND LEASEHOLD IMPROVEMENTS, AND ANY ALLOWANCES AND/OR CONCESSIONS PROVIDED BY
LANDLORD.
"LANDLORD'S RENTAL DAMAGES" SHALL MEAN THE TOTAL RENT WHICH LANDLORD
WOULD HAVE RECEIVED UNDER THIS LEASE (HAD TENANT MADE ALL SUCH LEASE PAYMENTS AS
REQUIRED) FOR THE REMAINDER OF THE TERM MINUS THE FAIR RENTAL VALUE OF THE
PREMISES FOR THE SAME PERIOD, OR, IF THE PREMISES ARE RELET, THE ACTUAL RENTAL
VALUE (NOT TO EXCEED THE RENT DUE DURING THE TERM), BOTH DISCOUNTED TO PRESENT
VALUE AT THE PRIME RATE (DEFINED BELOW) IN EFFECT UPON THE DATE OF
DETERMINATION.
FOR PURPOSES HEREOF, THE "PRIME RATE" SHALL BE THE PER ANNUM
INTEREST RATE PUBLICLY ANNOUNCED BY A FEDERALLY INSURED BANK SELECTED BY
LANDLORD IN THE STATE IN WHICH THE BUILDING IS LOCATED AS SUCH BANK'S PRIME OR
BASE RATE.
(3)
LANDLORD'S ALTERNATIVE CALCULATION.
BECAUSE FUTURE MARKET RENTAL
RATES, AND THE COSTS OR TIME INVOLVED IN RELETTING MAY BE UNCERTAIN AND
DIFFICULT TO DETERMINE AT THE TIME OF TENANT'S DEFAULT, THE PARTIES AGREE THAT
LANDLORD MAY IN ITS SOLE DISCRETION ELECT TO RECOVER, IN LIEU OF CALCULATING
DAMAGES UNDER SECTION 19.B(1)(D) AND (E) ABOVE (BUT WITHOUT LIMITING DAMAGES
UNDER SECTION 19.B(1)(A) AND (B) ABOVE), THE SUM OF (A) THE UNAMORTIZED PORTION
OF ALL COSTS, LOSSES AND EXPENSES INCURRED BY LANDLORD AS A RESULT OF ENTERING
INTO THE LEASE, AND (B) TWENTY FIVE PERCENT (25%) OF THE TOTAL NOMINAL RENT
WHICH LANDLORD WOULD HAVE RECEIVED UNDER THIS LEASE (HAD TENANT MADE ALL SUCH
RENT PAYMENTS AS