OF RENT.
E.
LANDLORD SHALL USE COMMERCIALLY REASONABLE EFFORTS TO MITIGATE
ANY DAMAGES RESULTING FROM AN EVENT OF DEFAULT BY TENANT UNDER THIS LEASE.
LANDLORD'S OBLIGATION TO MITIGATE DAMAGES AFTER AN EVENT OF DEFAULT BY TENANT
UNDER THIS LEASE SHALL BE SATISFIED IN FULL IF LANDLORD UNDERTAKES TO LEASE THE
PREMISES TO ANOTHER TENANT (A "SUBSTITUTE TENANT") IN ACCORDANCE WITH THE
FOLLOWING CRITERIA:
(1) LANDLORD SHALL HAVE NO OBLIGATION TO SOLICIT OR
ENTERTAIN NEGOTIATIONS WITH ANY OTHER PROSPECTIVE TENANTS FOR THE PREMISES UNTIL
LANDLORD OBTAINS FULL AND COMPLETE POSSESSION OF THE PREMISES INCLUDING, WITHOUT
LIMITATION, THE FINAL AND UNAPPEALABLE LEGAL RIGHT TO RELET THE PREMISES FREE OF
ANY CLAIM OF TENANT; (2) LANDLORD SHALL NOT BE OBLIGATED TO LEASE OR SHOW THE
PREMISES, ON A PRIORITY BASIS, OR OFFER THE PREMISES TO A PROSPECTIVE TENANT
WHEN OTHER PREMISES IN THE BUILDING SUITABLE FOR THAT PROSPECTIVE TENANT'S USE
ARE (OR SOON WILL BE) AVAILABLE; (3) LANDLORD SHALL NOT BE OBLIGATED TO LEASE
THE PREMISES TO A SUBSTITUTE TENANT FOR A RENT LESS THAN THE CURRENT FAIR MARKET
RENT THEN PREVAILING FOR SIMILAR USES IN COMPARABLE BUILDINGS IN THE SAME MARKET
AREA AS THE BUILDING, NOR SHALL LANDLORD BE OBLIGATED TO ENTER INTO A NEW LEASE
UNDER OTHER TERMS AND
22
CONDITIONS THAT ARE UNACCEPTABLE TO LANDLORD UNDER LANDLORD'S THEN CURRENT
LEASING POLICIES FOR COMPARABLE SPACE IN THE BUILDING; (4) LANDLORD SHALL NOT BE
OBLIGATED TO ENTER INTO A LEASE WITH A SUBSTITUTE TENANT WHOSE USE WOULD:
(I) VIOLATE ANY RESTRICTION, COVENANT, OR REQUIREMENT CONTAINED IN THE LEASE OF
ANOTHER TENANT OF THE BUILDING; (II) ADVERSELY AFFECT THE REPUTATION OF THE
BUILDING; OR (III) BE INCOMPATIBLE WITH THE OPERATION OF THE BUILDING; AND
(5) LANDLORD SHALL NOT BE OBLIGATED TO ENTER INTO A LEASE WITH ANY PROPOSED
SUBSTITUTE TENANT WHICH DOES NOT HAVE, IN LANDLORD'S REASONABLE OPINION,
SUFFICIENT FINANCIAL RESOURCES TO OPERATE THE PREMISES IN A FIRST CLASS MANNER
AND TO FULFILL ALL OF THE OBLIGATIONS IN CONNECTION WITH THE LEASE THEREOF AS
AND WHEN THE SAME BECOME DUE.
F.
THE RECEIPT BY LANDLORD OF LESS THAN THE FULL RENT DUE SHALL NOT
BE CONSTRUED TO BE OTHER THAN A PAYMENT ON ACCOUNT OF RENT THEN DUE, NOR SHALL
ANY STATEMENT ON TENANT'S CHECK OR ANY LETTER ACCOMPANYING TENANT'S CHECK BE
DEEMED AN ACCORD AND SATISFACTION, AND LANDLORD MAY ACCEPT SUCH PAYMENT WITHOUT
PREJUDICE TO LANDLORD'S RIGHT TO RECOVER THE BALANCE OF THE RENT DUE OR TO
PURSUE ANY OTHER REMEDIES PROVIDED IN THIS LEASE.
THE ACCEPTANCE BY LANDLORD OF
RENT HEREUNDER SHALL NOT BE CONSTRUED TO BE A WAIVER OF ANY BREACH BY TENANT OF
ANY TERM, COVENANT OR CONDITION OF THIS LEASE.
NO ACT OR OMISSION BY LANDLORD
OR ITS EMPLOYEES OR AGENTS DURING THE LEASE TERM SHALL BE DEEMED AN ACCEPTANCE
OF A SURRENDER OF THE PREMISES, AND NO AGREEMENT TO ACCEPT SUCH A SURRENDER
SHALL BE VALID UNLESS IN WRITING AND SIGNED BY LANDLORD.
G.
IN THE EVENT OF ANY LITIGATION BETWEEN TENANT AND LANDLORD TO
ENFORCE