PROXIMATELY CAUSED BY TENANT'S FAILURE TO PERFORM TENANT'S
OBLIGATIONS UNDER THIS LEASE, OR WHICH IN THE ORDINARY COURSE OF THINGS WOULD BE
LIKELY TO RESULT THEREFROM, INCLUDING WITHOUT LIMITATION, THE FOLLOWING: (I)
EXPENSES FOR CLEANING, REPAIRING OR RESTORING THE PREMISES, (II) EXPENSES FOR
ALTERING, REMODELING OR OTHERWISE IMPROVING THE PREMISES FOR THE PURPOSE OF
RELETTING, INCLUDING REMOVAL OF EXISTING
LEASEHOLD IMPROVEMENTS AND/OR INSTALLATION OF ADDITIONAL LEASEHOLD IMPROVEMENTS
(REGARDLESS OF HOW THE SAME IS FUNDED, INCLUDING REDUCTION OF RENT, A DIRECT
PAYMENT OR ALLOWANCE TO A NEW TENANT, OR OTHERWISE), (III) BROKER'S FEES
ALLOCABLE TO THE REMAINDER OF THE TERM, ADVERTISING COSTS AND OTHER EXPENSES OF
RELETTING THE PREMISES; (IV) COSTS OF CARRYING AND MAINTAINING THE PREMISES,
SUCH AS TAXES, INSURANCE PREMIUMS, UTILITY CHARGES AND SECURITY PRECAUTIONS, (V)
EXPENSES INCURRED IN REMOVING, DISPOSING OF AND/OR STORING ANY OF TENANT'S
PERSONAL PROPERTY, INVENTORY OR TRADE FIXTURES REMAINING THEREIN; (VI)
REASONABLE ATTORNEY'S FEES, EXPERT WITNESS FEES, COURT COSTS AND OTHER
REASONABLE EXPENSES INCURRED BY LANDLORD (BUT NOT LIMITED TO TAXABLE COSTS) IN
RETAKING POSSESSION OF THE PREMISES, ESTABLISHING DAMAGES HEREUNDER, AND
RELEASING THE PREMISES; AND (VII) ANY OTHER EXPENSES, COSTS OR DAMAGES OTHERWISE
INCURRED OR SUFFERED AS A RESULT OF TENANT'S DEFAULT.
(e)
Landlord's Default and Tenant's Remedies.
Landlord shall not be
in default of any of its obligations under this Lease unless Landlord fails to
perform any covenant, condition, or agreement contained in this Lease and fails
to cure the nonperformance within a reasonable time, but not later than thirty
(30) days after receiving written notice of the failure from Tenant; provided,
however, that if the nature of Landlord's failure to perform reasonably requires
more than thirty (30) days to cure, then Landlord shall not be in default if
Landlord commences to cure such failure within such thirty (30) day period, and
thereafter diligently prosecutes such cure to completion.
If Landlord is in
default pursuant to this Section 19(e) and (i) such default materially and
adversely impairs Tenant's ability to use the Premises or any material portion
thereof for the operation of its business pursuant to the terms of this Lease or
(ii) poses a material and imminent risk to the health or safety of persons,
then, and only then, as Tenant's sole remedy at law and/or in equity, Tenant may
perform such obligations subject to the following terms and conditions:
(1)
TENANT SHALL DELIVER TO LANDLORD A WRITTEN NOTICE ("SELF-HELP
NOTICE") OF TENANT'S INTENTION TO PERFORM SUCH OBLIGATIONS, WHICH SELF-HELP
NOTICE SHALL INDICATE IN ALL CAPITAL BOLD-FACED LETTERS TENANT'S INTENTION TO
EXERCISE ITS SELF-HELP RIGHTS AND TO PERFORM SUCH OBLIGATIONS WHICH ARE
OTHERWISE LANDLORD'S RESPONSIBILITY HEREUNDER.
IF LANDLORD FAILS TO COMMENCE TO
CURE ITS FAILURE TO PERFORM WITHIN TEN (10) BUSINESS DAYS AFTER RECEIPT OF THE
SELF-HELP NOTICE, TENANT MAY TAKE WHATEVER ACTION IS REASONABLY NECESSARY TO
PERFORM SUCH OBLIGATIONS;
(2)
ALL WORK PERFORMED BY TENANT OR ITS AGENTS IN ACCORDANCE WITH THIS
SECTION 19(E) MUST BE PERFORMED AT A REASONABLE AND COMPETITIVE COST AND RATE
AND SO AS TO