DEFAULT, REMEDIES AND DETERMINATION OF DAMAGES. Section 16.1. Each of the following acts or omissions of Tenant or occurrences shall constitute an “Event of Default”: (a) Failure or refusal by Tenant, after notice, to timely pay Minimum Rent or any other sum when due hereunder, including but not limited to any Additional Rent expenses under Section XXII. Notwithstanding any provision herein to the contrary, however, Landlord, shall provide Tenant five (5) days written notice of any default by Tenant of failure to pay Minimum Rent and other sums due herunder. Provided, however, Landlord shall not be required to give Tenant more than two (2) such written notices within any calendar year during the life of this Lease; or (b) Failure or refusal by Tenant to comply with the obligations of Tenant set forth in Article VI of this Lease; or (c) Failure or refusal by Tenant to timely perform or observe any other covenant, duty or obligation of Tenant under this Lease; [provided, however, notwithstanding the occurrence of such an Event of Default, Landlord shall not be entitled to exercise any of the remedies provided for in this Lease or by law unless such Event of Default continues beyond the expiration of thirty (30) days following notice to Tenant of the occurrence of such Event of Default; provided, further, that if Tenant shall default in the performance of any covenant, duty or obligation two (2) or more times in any twelve (12) month period, then notwithstanding that each such default shall have been cured by Tenant, any further default shall be deemed an Event of Default without Landlord’s being obligated to provide notice to Tenant and grant Tenant the right to cure] or (d) Abandonment or vacating of the Leased Premises or any portion thereof; or (e) The entry of a decree or order for relief by a court having jurisdiction over Tenant or any guarantor of Tenant’s obligations hereunder in an involuntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Tenant or any guarantor of Tenant’s obligations hereunder of for any substantial part of either of said parties’ property, or ordering the winding-up or liquidation of either of said parties’ affairs; or (f) Tenant shall do or permit to be done anything which creates a lien upon the Leased Premises; or (g) The commencement by Tenant or any guarantor of Tenant’s obligations hereunder if a voluntary case under the federal bankruptcy laws, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy, insolvency or other similar law. (h) Tenant shall fail to execute and acknowledge in good faith and in writing within ten (10) days after submission to Tenant of a request for confirmation of the subordination of the Lease to a security document and an estoppel certificate. (i) Failure or refusal of Tenant to make all Tenant’s improvements to the Leased Premises within 60 days of commencement of the Lease term. Section 16.2. This Lease and the term and estate hereby granted and the demise hereby made are subject to the limitation that if and whenever any Event of Default shall occur, after such notice, if any, as is provided in Section 16.1, Landlord may, at its option, in addition to all other rights and remedies given hereunder or by law or equity, do any one or more of the following: (a) Terminate this Lease, in which event, Tenant shall immediately surrender possession of the Leased Premises to Landlord; or (b) Enter upon and take possession of the Leased Premises and expel or remove Tenant and any other occupant there from, with or without having terminated the Lease; or (c) Alter locks and other security devices at the Leased Premises. Exercise by Landlord of any one or more remedies hereunder granted or otherwise available shall not be deemed to be an acceptance of surrender of the Leased Premises by Tenant, whether by agreement or by operation of law, it being understood that such surrender can be effected only by the written agreement of Landlord and Tenant. Upon the occurrence of an Event of Default, landlord shall not be obligated to give any notice (written or oral) regarding alteration of lock or other security devices at the Leased Premises, or notice (written or oral) to vacate the Leased Premises or notice of liability for Landlord’s attorneys’ fees prior to Landlord’s alteration of such locks or security devices or institution of proceedings in forcible detainer. In the event Landlord exercises its rights to alter the locks at the Leased Premises, Landlord shall only be required to provide Tenant with a new key during Landlord’s regular business hours, provided that in no event shall Landlord be required to provide Tenant a new key until such time as Tenant cures all defaults under the Lease and, if required by Landlord, Tenant increases the amount of the Security Deposit being held under the terms of Section 14.1. by an amount equal to twice the monthly Minimum Rent and Additional Charges due hereunder. Tenant hereby waives (to the extent legally permissible) any and all notices otherwise required under common law or under Chapters 24 or 92 of the Texas Property Code, as same presently exist or may be hereafter amended (or any subsequent similar statute relating to notice prior to instituting such action or proceeding). To the extent of any inconsistency between this Lease and provisions of Section 92.008 of the Texas Property Code (as it may be hereafter amended), it is the agreement of the parties that this Lease shall prevail and govern and control. If Tenant should fail to make any payment or cure any default hereunder within the time herein permitted, if any, Landlord, without being under any obligation to do so and without thereby waiving such default, may make such payment and/or remedy such other default for such purpose), and thereupon Tenant shall be obligated to, and hereby agrees to pay Landlord, upon demand, all costs, expenses and disbursements incurred by Landlord in taking such remedial action, including interest at the rate of 12% per annum from the date of such costs incurred by Landlord until payment. In the event of termination of this Lease or Tenant’s right to possession of the Leased Premises or repossession of the Leased Premises for an Event of Default, Landlord shall have the duty to relet or attempt to relet and in the event of reletting Landlord may relet the whole or any portion of the Leased Premises for any period, to any tenant, and for any use and purpose and upon terms acceptable to Landlord in its sole discretion. Upon an Event of Default, Landlord and Tenant agree that Landlord shall only be required to use the same efforts Landlord then uses to lease other properties Landlord owns and manages (or if the Leased Premises is then managed for Landlord, the Landlord will instruct such manager to use the same efforts such manager then uses to lease the space or properties which it owns or manages); provided, however, that Landlord or its manager shall not be required to give any preference or priority to the showing or leasing of the Leased Premises over any other space that Landlord or its manager may be leasing or have available and may place a prospective tenant in any such available space regardless of when such alternative space becomes available; provided further, that Landlord shall not be required to observe any instructions given by Tenant about such reletting or accept any tenants offered by Tenant unless such offered tenant has a credit worthiness acceptable to Landlord, leases the entire Leased Premises, agrees to use the Leased Premises in a manner consistent with this Lease and leases the Leased Premises at the same rent, for no more than the term of this Lease and on the same other terms and conditions as in the Lease without the expenditure by Landlord for tenant improvements or broker’s commissions. Section 16.3. In the event Landlord elects to terminate this Lease by reason of an Event of Default or in the event Landlord elects to terminate Tenant’s right to possession of the Leased Premises without terminating this Lease, Landlord may hold Tenant liable for all rent and other indebtedness accrued to the date of such termination, plus such rent and other indebtedness as would otherwise have been required to be paid by Tenant to Landlord during the period following termination of the lease term (or Tenant’s right to possession of the Leased Premises, as the case may be) measured from the date of such termination by Landlord until the date which would have been the date of expiration of the term as stated in Article III (had Landlord not elected to terminate the Lease or Tenant’s right to possession on account of such Event of Default) diminished by any net sums thereafter received by Landlord through reletting the Leased Premises during said period (after deducting expenses incurred by Landlord as provided in the succeeding paragraph). Actions to collect amounts due by Tenant provided for in this paragraph of Section 16.3. may be brought from time to time by Landlord during the aforesaid period, on one or more occasions, without the necessity of Landlord’s waiting until expiration of such period; and in no event shall Tenant be entitled to any excess of rent (or rent plus other sums) obtained by reletting over and above the rent herein reserved. At any time after the term of this Lease shall be expired and come to an end or Landlord shall have reentered upon the Leased Premises, as the case may be. Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages, a sum equal to the amount by which the rent, including Minimum Rent and all Additional Charges due hereunder, reserved in this Lease for the period which otherwise would have constituted the unexpired portion of the term of this Lease, exceeds the then fair rental value of the Leased Premises for the same period, both discounted to present value as determined by Landlord. In the case of an Event of Default, Tenant shall also be liable for and shall pay to Landlord at Houston, ▇▇▇▇▇▇ County, Texas, in addition to any sum provided to be paid above; broker’s fees incurred by Landlord in connection with reletting the whole or any part of the Leased Premises; the costs of removing and storing Tenant’s or other occupant’s property; the costs of repairing, altering, remodeling or otherwise putting the Leased Premises into required by this Lease to be repaired, altered, or remodeled, and all reasonable expenses incurred by Landlord in enforcing Landlord’s remedies. Section 16.4. In the event of any default by Landlord, Tenant’s exclusive remedy shall be an action for damages (Tenant hereby waiving the benefit of any laws granting it a lien upon the property of Landlord and/or upon rent due Landlord), but prior to any such action Tenant will give Landlord written notice specifying such default with particularity, and Landlord shall thereupon have a reasonable period, but in no event less than thirty (30) days, in which to commence to cure any such default. Tenant shall not have any remedy or cause of action, until Landlord fails to commence to cure any default after such notice or having so commenced thereafter fails to exercise reasonable diligence to complete such curing by reason thereof. All obligations of Landlord hereunder will be construed as independent covenants, not conditions; and all such obligations will be binding upon Landlord only during the period of its ownership of the Center and not thereafter. Notwithstanding anything contained in this Lease to the contrary, in the event of any default by Landlord in performing its covenants or obligations hereunder, Tenant shall not exercise any rights it may have on account of such default until (I) Tenant gives forty-five (45) days written notice of such default (which notice shall specify the exact nature of said default and how the same may be cured) to each holder of any mortgage or deed of trust encumbering the Center or the Leased Premises who has heretofore notified Tenant in writing of its interest and the address to which notices are to be sent (herein referred to as “Landlord’s Mortgagees”) and (ii) each such Landlord’s Mortgagee fails to cure or cause to be cured said default within the time period permitted Landlord pursuant to the terms of this Lease together with such additional time as may be reasonably necessary if Landlord’s Mortgagee is prevented by applicable laws from commencing the cure of such default. Notwithstanding anything in this Lease to the contrary, if Tenant claims or asserts that Landlord has violated or failed to perform a covenant of Landlord not to unreasonably withhold Landlord’s consent or approval, Tenant’s sole and exclusive remedy shall be an action for specific performance, declaratory judgment or injunction and in no event shall Tenant be entitled to any money damages for a breach of such covenant and in no event shall Tenant claim or assert any claim for any money damages in any action or by way of set off, defense or counterclaim and Tenant hereby specifically waives the right to any money damages or other remedies. Section 16.5. In the event that Landlord institutes an action or proceeding to enforce payment of a monetary sum due hereunder or to enforce any compliance by Tenant with the provisions of this Lease and is the prevailing party in such action or in the event it shall become necessary for Landlord to employ or consult with an attorney with regard to Tenant’s performance under this Lease then, in such event, Tenant will pay to Landlord all reasonable costs incurred by Landlord in such event, including reasonable attorneys’ fees, which shall not be less than fifteen percent ( 15%) of all such sums owing by Tenant to Landlord.
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DEFAULT, REMEDIES AND DETERMINATION OF DAMAGES. Section 16.1SECTION 16.01. Each of the following acts or omissions of Tenant or occurrences shall constitute an “Event of Default”:
(a) Failure or refusal by Tenant, after notice, Tenant to timely pay Minimum Rent or any other sum when due hereunder, including but not limited to any Additional Rent expenses under Section XXII. Notwithstanding any provision herein to the contrary, however, Landlord, shall provide Tenant five following ten (510) days written notice of any default by Tenant of failure to pay Minimum Rent and other sums due herunder. Providednotice; provided that, however, in no event shall Landlord shall not be required to give Tenant such notice more than two (2) such written notices within times during any calendar year year, and from and after Tenant's third (3rd) such failure or refusal during any calendar year, Landlord shall be entitled to exercise any or all of the life of this Leaseremedies set forth in Article XVI without prior notice to Tenant; or
(b) Failure or refusal by Tenant to comply with the obligations of Tenant set forth in the first grammatical sentence of Section 6.01.A. and/or Article VI VIII of this LeaseLease and such failure or refusal continues for a period of ten (10) days after written notice thereof to Tenant; or
(c) Failure or refusal by Tenant to timely perform or observe any other covenant, duty or obligation of Tenant under this Lease; [provided, however, notwithstanding the occurrence of such an Event of Default, Landlord shall not be entitled to exercise any of the remedies provided for in this Lease or by law unless such Event of Default continues beyond the expiration of thirty (30) days following notice to Tenant of the occurrence of such Event of Default; providedhowever, further, that if Tenant shall default in the performance of any event such other covenant, duty or obligation two reasonably requires more than thirty (230) or more times in any twelve (12) month perioddays for the curing thereof, then notwithstanding that each such default failure to cure shall not be deemed to be an "Event of Default" if Tenant shall have been cured by Tenant, any further default shall be deemed an Event commenced the curing of Default without Landlord’s being obligated such failure within such thirty (30) day period and having commenced such curing carries forward the curing thereof to provide notice to Tenant and grant Tenant the right to cure] completion with reasonable diligence; or
(d) Abandonment or vacating of the Leased Premises or any significant portion thereof; or
(e) The entry of a decree or order for relief by a court having jurisdiction over Tenant or any guarantor of Tenant’s 's obligations hereunder in an involuntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Tenant or any guarantor of Tenant’s 's obligations hereunder of or for any substantial part of either of said parties’ ' property, or ordering the winding-up or liquidation of either of said parties’ ' affairs; or
(f) Tenant shall do or permit to be done anything which creates a lien upon the Leased Premises; or
(g) The commencement by Tenant or any guarantor of Tenant’s 's obligations hereunder if of a voluntary case under the federal bankruptcy laws, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy, insolvency or other similar law.
(h) Tenant shall fail to execute and acknowledge in good faith and in writing within ten (10) days after submission to Tenant of a request for confirmation of the subordination of the Lease to a security document and an estoppel certificate.
(i) Failure or refusal of Tenant to make all Tenant’s improvements to the Leased Premises within 60 days of commencement of the Lease term.
Section 16.2SECTION 16.02. This Lease and the term and estate hereby granted and the demise hereby made are subject to the limitation that if and whenever any Event of Default shall occur, after such notice, if any, as is provided in Section 16.116.01, Landlord may, at its option, in addition to all other rights and remedies given hereunder or by law or equity, do any one or more of the following:
(a) Terminate this LeaseLease or Tenant's right to possession of the Leased Premises, in which either event, Tenant shall immediately surrender possession of the Leased Premises to Landlord; or;
(b) Enter upon and take possession of the Leased Premises and expel or remove Tenant and any other occupant there fromtherefrom, with or without having terminated the Lease; or
(c) Alter locks and other security devices at the Leased Premises. Exercise by Landlord of any one or more remedies hereunder granted or otherwise available shall not be deemed to be an acceptance of surrender of the Leased Premises by Tenant, whether by agreement or by operation of law, it being understood that such surrender can be effected only by the written agreement of Landlord and Tenant. Upon the occurrence of an Event of Default, landlord Landlord shall not be obligated to give any notice (written or oral) regarding alteration Landlord's exercise of lock or other security devices at the Leased Premises, or notice (written or oral) to vacate the Leased Premises or notice of liability for Landlord’s attorneys’ fees prior to Landlord’s alteration of such locks or security devices or institution of proceedings in forcible detainer. In the event Landlord exercises its rights to alter the locks at the Leased Premises, Landlord shall only be required to provide Tenant with a new key during Landlord’s regular business hours, provided that in no event shall Landlord be required to provide Tenant a new key until such time as Tenant cures all defaults under the Lease and, if required by Landlord, Tenant increases the amount of the Security Deposit being held under the terms of Section 14.1. by an amount equal to twice the monthly Minimum Rent and Additional Charges due any remedies hereunder. Tenant hereby waives (to the extent legally permissible) any and all notices otherwise required under common law or under Chapters 24 or 92 of the Texas Property Codeby statute, as same presently exist or may be hereafter amended (or any subsequent similar statute relating to notice prior to instituting such action or proceeding). To the extent of any inconsistency between this Lease and provisions of Section 92.008 of the Texas Property Code (as it may be hereafter amended), it is the agreement of the parties that this Lease shall prevail and govern and control. If Tenant should fail to make any payment or cure any default hereunder within the time herein permitted, if any, Landlord, without being under any obligation to do so and without thereby waiving such default, may make such payment and/or remedy such other default for the account of Tenant (and enter the Leased Premises for such purpose), and thereupon Tenant shall be obligated to, and hereby agrees to pay Landlord, upon demand, all costs, expenses and disbursements incurred by Landlord in taking such remedial action, including interest at the rate of 12% per annum from the date of such costs incurred by Landlord until payment. In the event of termination of this Lease or Tenant’s right to possession of the Leased Premises or repossession of the Leased Premises for an Event of Default, Landlord shall have the duty to relet or attempt to relet and in the event of reletting Landlord may relet the whole or any portion of the Leased Premises for any period, to any tenant, and for any use and purpose and upon terms acceptable to Landlord in its sole discretion. Upon an Event of Default, Landlord and Tenant agree that Landlord shall only be required to use the same efforts Landlord then uses to lease other properties Landlord owns and manages (or if the Leased Premises is then managed for Landlord, the Landlord will instruct such manager to use the same efforts such manager then uses to lease the space or properties which it owns or manages); provided, however, that Landlord or its manager shall not be required to give any preference or priority to the showing or leasing of the Leased Premises over any other space that Landlord or its manager may be leasing or have available and may place a prospective tenant in any such available space regardless of when such alternative space becomes available; provided further, that Landlord shall not be required to observe any instructions given by Tenant about such reletting or accept any tenants offered by Tenant unless such offered tenant has a credit worthiness acceptable to Landlord, leases the entire Leased Premises, agrees to use the Leased Premises in a manner consistent with this Lease and leases the Leased Premises at the same rent, for no more than the term of this Lease and on the same other terms and conditions as in the Lease without the expenditure by Landlord for tenant improvements or broker’s commissions.
Section 16.3SECTION 16.03. In the event Landlord elects to terminate this Lease by reason of an Event of Default or in the event Landlord elects to terminate Tenant’s 's right to possession of the Leased Premises without terminating this Lease, Landlord may hold Tenant liable for all rent and other indebtedness accrued to the date of such termination, plus such future rent and other indebtedness as would otherwise have been required to be paid by Tenant to Landlord during the period following termination of the lease term (or Tenant’s right to possession of the Leased Premises, as the case may be) measured from the date of such termination by Landlord until the date which would have been the date of expiration balance of the term as stated in Article III (of the Lease had Landlord not elected to terminate the Lease or Tenant’s 's right to possession on account of such Event of Default) diminished by any net sums thereafter received by Landlord through reletting the Leased Premises during said period (after deducting expenses incurred by Landlord as provided in the succeeding paragraph)possession. Actions to collect amounts due by Tenant provided for in this paragraph of Section 16.3. 16.03 may be brought from time to time by Landlord during the aforesaid period, on one or more occasions, without the necessity of Landlord’s 's waiting until expiration of such period. In case of an Event of Default, Tenant shall also be liable for and shall pay to Landlord at Houston, Harris County, Texas, in addition to any sum provided to be paid ab▇▇▇: broker's fees incurred by Landlord in connection with reletting the whole or any part of the Leased Premises; the costs of removing and storing Tenants or other occupant's property; the costs of repairing, altering, remodeling or otherwise putting the Leased Premises into condition acceptable to a new tenant or tenants, and all reasonable expenses incurred by Landlord in enforcing Landlord's remedies.
SECTION 16.04. Tenant and Landlord agree that Landlord shall have a duty to make a "reasonable attempt" to relet the Leased Premises in the event such Leased Premises should become vacant due to an Event of Default by Tenant. Tenant agrees that Landlord shall not be liable, nor shall Tenant's obligations hereunder be diminished, because of Landlord's failure to actually relet the Leased Premises or collect rent due with respect to such reletting so long as Landlord has fulfilled its duty to make a "reasonable attempt" to relet. Landlord and Tenant agree that Landlord shall be conclusively deemed to have made a "reasonable attempt" to relet the Leased Premises by doing the following: (a) posting a "For Lease" sign on the Leased Premises, and (b) advising Landlord's leasing staff of the availability of the Leased Premises, and (c) advising at least one commercial brokerage entity familiar with the market in which the Shopping Center is located of the availability of the Leased Premises. In make its "reasonable attempt" to relet the Leased Premises, Landlord will use the same efforts as it uses to lease other available space in the Shopping Center; however, Landlord shall not in any event be required to give any preference or priority to the leasing of the Leased Premises over any other space that Landlord may have available in the Shopping Center. Landlord shall not be required to: (i) take any instruction or advice given by Tenant regarding reletting the Leased Premises; (ii) accept any proposed tenant unless such tenant has a credit-worthiness acceptable to Landlord in its sole discretion; (iii) accept any proposed tenant unless such tenant leases the entire Leased Premises upon terms and conditions satisfactory to Landlord in its sole discretion (after giving consideration to all expenditures by Landlord for tenant improvements, broker's commissions and other leasing costs); or (iv) consent to any assignment or sublease for a period which extends beyond the expiration of the current term or which Landlord would not otherwise be required to consent to under the provisions of this Lease. If Landlord receives any payments from the reletting of the Leased Premises, any such payments shall first be applied to any costs or expenses incurred by Landlord as a result of Tenant's Event of Default under the Lease, including but not limited to leasing and brokerage fees (including expenses to third party brokers, to Landlord's affiliates and employees of Landlord and its affiliates), attorney's fees, and construction expenses relating to reletting the Leased Premises (whether paid to a third party contractor or to the Tenant as a construction allowance) and in no event shall Tenant be entitled to any excess of rent (or rent plus other sums) obtained by reletting over and above the rent herein reserved.
SECTION 16.05. At In the event that Landlord has to pursue any time after the term of its rights or remedies under this Lease shall be expired and come to an end or Landlord shall have reentered upon the Leased PremisesLease, as the case may be. Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages, a sum equal to the amount by which the rent, including Minimum Rent and all Additional Charges due hereunder, reserved in this Lease for the period which otherwise would have constituted the unexpired portion of the term of this Lease, exceeds the then fair rental value of the Leased Premises for the same period, both discounted to present value as determined by Landlord. In the case of an Event of Default, Tenant shall also be liable for and shall pay to Landlord at Houston, ▇▇▇▇▇▇ County, Texas, in addition to any sum provided to be paid above; broker’s fees reasonable costs incurred by Landlord in connection with reletting the whole or any part of the Leased Premises; the costs of removing and storing Tenant’s or other occupant’s property; the costs of repairingattempting to collect such sum, altering, remodeling or otherwise putting the Leased Premises into required by this Lease to be repaired, altered, or remodeled, and all including reasonable expenses incurred by Landlord in enforcing Landlord’s remediesattorneys' fees.
Section 16.4SECTION 16.06. In the event of any default by Landlord, Tenant’s 's exclusive remedy shall be an action for damages (Tenant hereby waiving the benefit of any laws granting it a lien upon the property of Landlord and/or upon rent due Landlord), but prior to any such action Tenant will give Landlord written notice specifying such default with particularity, and Landlord shall thereupon have a reasonable period, but in no event less than thirty (30) days, in which to commence to cure any such default. Tenant shall not have any remedy or cause of action, Unless and until Landlord fails so to commence to cure any default after such notice or having so commenced thereafter fails to exercise reasonable diligence to complete such curing curing, Tenant shall not have any remedy or cause of action by reason thereof. All obligations of Landlord hereunder will be construed as independent covenants, not conditions; and all such obligations will be binding upon Landlord only during the period of its ownership possession of the Shopping Center and not thereafter.
SECTION 16.07. Notwithstanding anything contained in Tenant hereby acknowledges that late payment by Tenant to Landlord of rent or any other sums due under this Lease will cause Landlord to incur various expenses not contemplated by this Lease, the contraryexact amount of which are presently difficult to ascertain. Accordingly, if any payment of Minimum Rent or any other sum due from Tenant under this Lease shall not be received by Landlord when due, then, in the event of any default by Landlord in performing its covenants or obligations hereunderaddition to such required payment, Tenant shall not exercise any rights it may have on account also pay to Landlord a "Late Charge" equal to five cents ($0.05) for each One Dollar ($1.00) so past due. Landlord and Tenant agree that such Late Charge represents a fair and reasonable estimate of the expenses that Landlord will incur by reason of such default until (I) Tenant gives forty-five (45) days written notice late payment by Tenant. Acceptance of such Late Charge by Landlord shall not constitute a waiver of Tenant's default (which notice shall specify the exact nature of said default with respect to any such past due amounts, nor prevent Landlord from exercising any other rights and how the same may be cured) remedies granted to each holder of any mortgage or deed of trust encumbering the Center or the Leased Premises who has heretofore notified Tenant in writing of its interest and the address to which notices are to be sent (herein referred to as “Landlord’s Mortgagees”) and (ii) each such Landlord’s Mortgagee fails to cure or cause to be cured said default within the time period permitted Landlord pursuant to the terms of under this Lease together with such or at law or in equity. Such Late Charge shall constitute additional time as may be reasonably necessary if Landlord’s Mortgagee is prevented by applicable laws from commencing the cure of such default. Notwithstanding anything in this Lease to the contrary, if Tenant claims or asserts that Landlord has violated or failed to perform a covenant of Landlord not to unreasonably withhold Landlord’s consent or approval, Tenant’s sole and exclusive remedy shall be an action for specific performance, declaratory judgment or injunction and in no event shall Tenant be entitled to any money damages for a breach of such covenant and in no event shall Tenant claim or assert any claim for any money damages in any action or by way of set off, defense or counterclaim and Tenant hereby specifically waives the right to any money damages or other remedies.
Section 16.5. In the event that Landlord institutes an action or proceeding to enforce payment of a monetary sum due hereunder or to enforce any compliance rental payable by Tenant with the provisions of under this Lease and is in addition to, and separate from, the prevailing party in such action or in the event it shall become necessary for Landlord to employ or consult with an attorney with regard to Tenant’s performance Minimum Rent and other charges payable under this Lease then, in such event, Tenant will pay to Landlord all reasonable costs incurred by Landlord in such event, including reasonable attorneys’ fees, which shall not be less than fifteen percent ( 15%) of all such sums owing by Tenant to LandlordTenant.
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DEFAULT, REMEDIES AND DETERMINATION OF DAMAGES. Section 16.1. a. Each of the following acts or omissions of Tenant or occurrences shall constitute an “Event of Default”:
(a) i. Failure or refusal by Tenant, after notice, Tenant to timely pay Minimum Rent Rent, Additional Rent, or any other sum when due hereunder, including but not limited to any Additional Rent expenses under Section XXII. Notwithstanding any provision herein to the contrary, however, Landlord, shall provide Tenant within five (5) calendar days written notice of any default by Tenant of failure to pay Minimum Rent and other sums its due herunderdate;
ii. Provided, however, Landlord shall not be required to give Tenant more than two (2) such written notices within any calendar year during the life of this Lease; or
(b) Failure or refusal by Tenant to comply with the Permitted Use restrictions and/or the obligations of Tenant set forth in Article VI this Lease regarding assignment/subletting and such failure or refusal continues for a period of this Leasethree (3) days after written notice thereof to Tenant; orprovided, however, if such failure to comply cannot reasonably be cured in three (3) days, it shall not be an Event of Default hereunder so long as Tenant commences to cure within such three (3) day period and diligently pursues such cure to completion;
iii. Tenant’s or Tenant’s guests, invitees, or licensee’s violations of rules/Landlord Rules for use of the Property where such violation continues after three (c3) days notice to Tenant of such violation provided, however, if such failure to comply cannot reasonably be cured in three (3) days, it shall not be an Event of Default hereunder so long as Tenant commences to cure within such three (3) day period and diligently pursues such cure to completion; provided further, however that such violation shall be an Event of Default without notice to Tenant if Tenant or Tenant’s or Tenant’s guests, invitees, or licensee’s have previously violated the same rule more than two (2) times during any Lease Year;
iv. Failure or refusal by Tenant to timely perform or observe any other covenant, duty or obligation of Tenant under this Lease, without regard for whether such failure is expressly defined as an Event of Default in such other provision of this Lease after notice and an opportunity to cure the same within seven (7) days; [provided, however, notwithstanding the occurrence of if such an Event of Defaultfailure to comply cannot reasonably be cured in seven (7) days, Landlord it shall not be entitled to exercise any of the remedies provided for in this Lease or by law unless such Event of Default continues beyond the expiration of thirty (30) days following notice to Tenant of the occurrence of such Event of Default; provided, further, that if Tenant shall default in the performance of any covenant, duty or obligation two (2) or more times in any twelve (12) month period, then notwithstanding that each such default shall have been cured by Tenant, any further default shall be deemed an Event of Default without Landlord’s being obligated hereunder so long as Tenant commences to provide notice cure within such seven (7) day period and diligently pursues such cure to Tenant and grant Tenant the right to cure] orcompletion;
(d) Abandonment v. Except for Temporary Closures, abandonment or vacating of the Leased Premises for three (3) or any portion thereof; ormore days;
(e) vi. The entry of a decree or order for relief by a court having jurisdiction over Tenant or any guarantor of Tenant’s obligations hereunder in an involuntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Tenant or any guarantor of Tenant’s obligations hereunder of or for any substantial part of either of said parties’ property, or ordering the winding-up or liquidation of either of said parties’ affairs; or
(f) Tenant shall do or permit to be done anything which creates a lien upon the Leased Premises; or
(g) vii. The commencement by Tenant or any guarantor of Tenant’s obligations hereunder if a voluntary case under the federal bankruptcy laws, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy, insolvency or other similar law.
(h) Tenant shall fail b. In addition to execute and acknowledge in good faith and in writing within ten (10) days after submission to Tenant of a request for confirmation of the subordination of the Lease to a security document and an estoppel certificate.
(i) Failure or refusal of Tenant to make all Tenant’s improvements to the Leased Premises within 60 days of commencement of the Lease term.
Section 16.2. This Lease and the term and estate hereby granted and the demise hereby made are subject to the limitation that if and whenever any Event of Default shall occur, after such notice, if any, as is other remedies provided in Section 16.1this Lease, and after providing appropriate notice if required under this Lease, Landlord may, at its option, in addition :
i. Terminate this Lease or Tenant’s right to all other rights and remedies given hereunder or by law or equity, do any one or more possession of the following:
Leased Premises (a) Terminate this Lease, in which either event, Tenant shall immediately surrender possession of the Leased Premises to Landlord; or);
(b) ii. Enter upon and take possession of the Leased Premises and expel or remove Tenant and any other occupant there fromtherefrom, with or without having terminated the Lease; orLease (including removing Tenant’s equipment and/or vehicles) without incurring liability for the same;
(c) iii. Alter locks and other security devices at the Leased Premises as provided under Section 93.002 of the Texas Property Code (as amended from time to time). If Landlord exercises its rights to alter the locks at the Leased Premises. Exercise , Landlord shall only be required to provide Tenant with a new key during Landlord’s regular business hours, provided that Landlord SHALL NOT be required to provide Tenant a new key until such time as Tenant cures all defaults under the Lease and, if required by Landlord, Tenant pays to Landlord as a Security Deposit an amount equal to twice the monthly Minimum Rent and Additional Charges due hereunder as a Security Deposit;
c. Landlord’s exercise of any one or more remedies hereunder granted under this Lease or otherwise available shall not be deemed to be an acceptance of surrender of the Leased Premises by Tenant, whether by agreement or by operation of law, it being understood that such surrender can be effected only by the written agreement of Landlord and Tenant. .
d. Upon the occurrence of an Event of DefaultDefault and the provision of any notice required under this Lease, landlord Landlord shall not be obligated to give any additional notice (written or oral) regarding alteration of lock or other security devices at the Leased Premises, or notice (written or oral) to vacate the Leased Premises or notice of liability for Landlord’s attorneys’ fees prior to Landlord’s alteration exercise of such locks or security devices or institution of proceedings in forcible detainer. In the event Landlord exercises its rights to alter the locks at the Leased Premises, Landlord shall only be required to provide Tenant with a new key during Landlord’s regular business hours, provided that in no event shall Landlord be required to provide Tenant a new key until such time as Tenant cures all defaults under the Lease and, if required by Landlord, Tenant increases the amount of the Security Deposit being held under the terms of Section 14.1. by an amount equal to twice the monthly Minimum Rent and Additional Charges due any remedies hereunder. Tenant hereby waives (to the extent legally permissible) any and all notices otherwise required under statutory or common law or under Chapters 24 or 92 of the Texas Property Code, as same presently exist or may be hereafter amended (or any subsequent similar statute relating to notice prior to instituting such action or proceeding)law. To the extent of any inconsistency between this Lease and provisions of Section 92.008 of any statutory or common law and to the Texas Property Code (as it may be hereafter amended)extent permitted under applicable law, it is the agreement of the parties that this Lease shall prevail and govern and control. prevail;
e. If Tenant should fail fails to make any payment or cure any default hereunder within the time herein permitted, if anypermitted under this Lease, Landlord, without being under any obligation to do so and without thereby waiving such default, may make such payment and/or remedy such other default for the account of Tenant (and enter the Leased Premises for such purpose), and thereupon Tenant shall be obligated to, to and hereby agrees to pay Landlord, upon demand, all actual costs, expenses and disbursements incurred by Landlord in taking such remedial actionaction plus, including interest at the rate of except as otherwise set forth herein, an additional twelve percent (12% per annum from the date %) of such costs incurred by Landlord until payment. In the event of termination of this Lease or Tenant’s right sums to possession of the Leased Premises or repossession of the Leased Premises for an Event of Default, Landlord shall have the duty to relet or attempt to relet and in the event of reletting Landlord may relet the whole or any portion of the Leased Premises for any period, to any tenant, and for any use and purpose and upon terms acceptable to Landlord in its sole discretion. Upon an Event of Default, Landlord and Tenant agree that Landlord shall only be required to use the same efforts Landlord then uses to lease other properties Landlord owns and manages (or if the Leased Premises is then managed for Landlord, the Landlord will instruct such manager to use the same efforts such manager then uses to lease the space or properties which it owns or manages); provided, however, that Landlord or its manager shall not be required to give any preference or priority to the showing or leasing of the Leased Premises over any other space that Landlord or its manager may be leasing or have available and may place a prospective tenant in any such available space regardless of when such alternative space becomes available; provided further, that Landlord shall not be required to observe any instructions given by Tenant about such reletting or accept any tenants offered by Tenant unless such offered tenant has a credit worthiness acceptable to Landlord, leases the entire Leased Premises, agrees to use the Leased Premises in a manner consistent with this Lease and leases the Leased Premises at the same rent, for no more than the term of this Lease and on the same other terms and conditions as in the Lease without the expenditure by compensate Landlord for tenant improvements or broker’s commissionsits overhead and administrative costs (unless a greater cost for administrative tasks is provided elsewhere in this Lease).
Section 16.3. f. In the event Landlord elects to terminate this Lease by reason because of an Event of Default Default, or in the event Landlord elects to terminate Tenant’s right to possession of the Leased Premises without terminating this Lease, Landlord may hold Tenant liable for all rent and other indebtedness accrued to the date of such termination, termination plus such future rent and other indebtedness as would otherwise have been required to be paid by Tenant to Landlord during the period following termination of the lease term (or Tenant’s right to possession of the Leased Premises, as the case may be) measured from the date of such termination by Landlord until the date which would have been the date of expiration balance of the term as stated in Article III (had of the Lease. Landlord not elected to terminate the Lease or Tenant’s right to possession on account of such Event of Default) diminished by any net sums thereafter received by Landlord through reletting the Leased Premises during said period (after deducting expenses incurred by Landlord as provided in the succeeding paragraph). Actions may bring actions to collect amounts due by Tenant provided for in this paragraph of Section 16.3. may be brought from time to time by Landlord during the aforesaid period, on one or more occasions, without the necessity of Landlord’s waiting until expiration of such period; and in no event shall Tenant be entitled to any excess of rent (or rent plus other sums) obtained by reletting over and above the rent herein reserved. At any time after the term of this Lease shall be expired and come to an end or Landlord shall have reentered upon the Leased Premises, as the case may be. Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages, a sum equal to the amount by which the rent, including Minimum Rent and all Additional Charges due hereunder, reserved in this Lease for the period which otherwise would have constituted the unexpired portion of the term of this Lease, exceeds the then fair rental value of the Leased Premises for the same period, both discounted to present value as determined by Landlord. .
g. In the case of an Event of Default, Tenant shall also be liable for and shall pay to Landlord at Houston, ▇▇▇▇▇▇ County, TexasLandlord, in addition to any sum provided to be paid above; : broker’s fees incurred by Landlord in connection with reletting the whole or any part of the Leased Premises; the costs of removing and storing Tenant’s or other occupant’s property; the costs of repairing, altering, remodeling or otherwise putting the Leased Premises into required by this Lease condition acceptable to be repaired, altered, a new tenant or remodeledtenants, and all reasonable expenses incurred by Landlord in enforcing Landlord’s remedies.
Section 16.4h. No termination of this Lease, or summary proceedings, abandonment or vacation, shall relieve Tenant of its liability and obligation under this Lease, whether or not the Leased Premises shall be relet. In any such event Tenant shall pay Landlord the rent and all other charges required to be paid by Tenant up to the time of such event. Thereafter, in addition to any other damages to which Landlord may be entitled, Tenant, until the end of the Lease Term, or what would have been such term in the absence of any such event, shall be liable to Landlord as damages for Tenant’s default the equivalent of the amount of rent and other charges which would be payable under this Lease by Tenant if this Lease were still in effect, less the net proceeds of any reletting effected pursuant to the provisions of this Lease, after deducting all of Landlord’s reasonable expenses in connection with such reletting, including, without limitation, all repossession costs, brokerage and management commissions, operating expenses, legal expenses, repairs and alterations costs, and expenses of preparation for such reletting. Tenant shall pay such current damages (herein called “deficiency”) to Landlord on the days on which the rent would have been payable under this Lease if this Lease were still in effect, and Landlord shall be entitled to recover from Tenant each deficiency as the same shall arise. Alternatively, at the option of Landlord, Landlord may recover from Tenant all damages incurred by reason of such termination of the excess, if any, of the amount of rent and charges reserved in this Lease for the remainder of the Lease Term over the then reasonable rental value of the Leased Premises for the remainder of the Lease Term, all of which amount shall be immediately due and payable from Tenant to Landlord. In determining the rent that would be payable under this Lease subsequent to any default, the annual rental for each year of the remainder of the Lease Term shall be equal to the average of the total Minimum Rent, Additional Rent, and the charges equivalent to rent paid by Tenant from the Commencement Date to the time of default or during the preceding two (2) full calendar years, whichever period is shorter.
i. Tenant and Landlord agree that Landlord shall make a “reasonable attempt” to relet the Leased Premises if the Leased Premises becomes vacant due to an Event of Default by Tenant. Tenant agrees that Landlord shall not be liable for, nor shall Tenant’s obligations hereunder be diminished because of Landlord’s failure to actually relet the Leased Premises or collect rent due as long as Landlord has fulfilled its duty to make a “reasonable attempt” to relet.
i. Landlord and Tenant agree that Landlord shall be conclusively deemed to have made a “reasonable attempt” to relet the Leased Premises by doing the following: (a) posting a “For Lease” sign on the Leased Premises, and (b) advising Landlord’s in-house marketing team or at least one realtor or commercial brokerage entity familiar with the market in which the Leased Premises is located of the availability of the Leased Premises.
ii. Landlord shall not be required to:
1. give any preference or priority to the leasing of the Leased Premises over any other space that Landlord may have available in the Property;
2. take any instruction or advice given by Tenant regarding reletting the Leased Premises; accept any proposed tenant unless such tenant has a credit-worthiness reasonably acceptable to Landlord in its sole discretion; accept any proposed tenant unless such tenant leases the entire Leased Premises upon terms and conditions satisfactory to Landlord in its sole discretion (after giving consideration to all expenditures by Landlord for tenant improvements, realtor/broker's commissions and other leasing costs); or
3. consent to any assignment or sublease for a period which extends beyond the expiration of the current term or which Landlord would not otherwise be required to consent to under the provisions of this Lease.
iii. If Landlord receives any payments from the reletting of the Leased Premises, any such payments shall first be applied to any costs or expenses incurred by Landlord as a result of Tenant's Event of Default under the Lease, including but not limited to leasing and brokerage fees (including expenses to third party brokers, to Landlord's affiliates and employees of Landlord and its affiliates), reasonable attorneys’ fees, and construction expenses relating to reletting the Leased Premises (whether paid to a third party contractor or to the Tenant as a construction allowance) and in no event shall Tenant be entitled to any excess of rent (or rent plus other sums) obtained by reletting over and above the rent herein reserved.
j. In recovery under an Event of Default under this Lease, the non-defaulting party shall be entitled to recover and the defaulting party shall be responsible for the non-defaulting party’s reasonable attorney’s fees and costs of collection incurred including mediator’s fees and collection agency fees, if any. For the purposes of such recovery, the “non-defaulting” party must also meet the criteria for a “prevailing party” under applicable law in order to recover reasonable attorney’s fees under this clause.
k. In addition to the general provisions for reasonable attorney’s fees set forth in this Lease, if Landlord hires an attorney to provide any notice to Tenant under this Lease as a result of Tenant’s breach of this Lease or commission of an Event of Default, Tenant shall reimburse Landlord for Landlord’s costs and reasonable attorney’s fees incurred upon Landlord’s demand. This recovery includes, without limitation, attorney’s fees and costs arising from any Tenant bankruptcy proceeding or receivership that Landlord files a claim in.
l. Unless otherwise provided in this Lease, in the event of any default by Landlord, Tenant’s exclusive remedy shall be an action for damages (Tenant hereby waiving the benefit of any laws granting it or an action for specific performance in connection with a lien upon the property of Landlord and/or upon rent due default by Landlord), but prior to any such action Tenant will give Landlord written notice specifying such default with particularity, and Landlord shall thereupon have a reasonable period, but in period of no event less than thirty (30) days, days in which to commence to cure any such default. Tenant ; provided, however, in the event such default reasonably requires more than thirty (30) days to cure, such failure to cure shall not be deemed to be an “Event of Default” if Landlord shall have any remedy or cause of action, commenced the curing process within the thirty (30) day period. Unless and until Landlord fails to commence to cure any default after such notice or or, having so commenced the curing process thereafter fails to exercise reasonable diligence to complete such curing curing, Tenant shall not have any remedy or cause of action by reason thereof. All obligations of Landlord hereunder will be construed as independent covenants, not conditions; , and all such obligations will be binding upon Landlord only during the period of its ownership possession of the Center Leased Premises and not thereafter. Notwithstanding anything contained Without limiting the foregoing in this Lease any way, Tenant expressly acknowledges, understands and agrees that Landlord shall have no liability or obligation whatsoever for damage to the contraryLeased Premises where caused by another tenant or occupant of the Building or that tenant/occupant’s facilities such as pipes, wiring, and ducts, including but not limited to damage arising from flooding or other water damage in the event Leased Premises.
m. If, by reason of inability to obtain and utilize labor, materials, or supplies, or by reason of circumstances directly or indirectly the result of any default state of war or national or local emergency, or by reason of any laws, rules, orders, regulations or requirements of any governmental authority now or hereafter in force, or by reason of strikes or riots, or by reason of accidents in, damage to or the making of repairs, replacements or improvements to, the Leased Premises or any of the equipment thereof, or by reason of force majeure, Acts of God or any other cause beyond the reasonable control of the Landlord, the Landlord shall be unable to perform or shall be delayed in performing the performance of any of its covenants or obligations hereunder, Tenant such nonperformance or delay in performance shall not exercise give rise to any rights it may have on account of such default until (I) claim against the Landlord for damages or constitute a total or partial eviction, constructive or otherwise;, or, except as specifically provided herein, relieve Tenant gives forty-five (45) days written notice of such default (which notice shall specify the exact nature of said default and how the same may be cured) to each holder of any mortgage or deed of trust encumbering the Center or the Leased Premises who has heretofore notified Tenant in writing of its interest and the address to which notices are to be sent (herein referred to as “Landlord’s Mortgagees”) and (ii) each such Landlord’s Mortgagee fails to cure or cause to be cured said default within the time period permitted Landlord pursuant to the terms of this Lease together with such additional time as may be reasonably necessary if Landlord’s Mortgagee is prevented by applicable laws from commencing the cure of such default. Notwithstanding anything in this Lease to the contrary, if Tenant claims or asserts that Landlord has violated or failed to perform a covenant of Landlord not to unreasonably withhold Landlord’s consent or approval, Tenant’s sole and exclusive remedy shall be an action for specific performance, declaratory judgment or injunction and in no event shall Tenant be entitled to any money damages for a breach of such covenant and in no event shall Tenant claim or assert any claim for any money damages in any action or by way of set off, defense or counterclaim and obligations hereunder.
n. Tenant hereby specifically waives the right to any money damages or other remedies.
Section 16.5. In the event acknowledges that Landlord institutes an action or proceeding to enforce late payment of a monetary sum due hereunder or to enforce any compliance by Tenant with the provisions to Landlord of this Lease and is the prevailing party in such action rent or in the event it shall become necessary for Landlord to employ or consult with an attorney with regard to Tenant’s performance any other sums due under this Lease thenwill cause Landlord to incur various expenses not contemplated by this Lease, the exact amount of which are presently difficult to ascertain. Accordingly, if any payment of Rent or any other sum due from Tenant under this Lease is not received by Landlord when due, then in addition to such eventrequired payment and other assessments due under this Lease, Tenant will shall also pay to Landlord all a “Late Charge” equal to $150.00.
i. Landlord and Tenant agree that the Late Charge represents a fair and reasonable costs incurred estimate of the expenses that Landlord will incur by reason of any late payment by Tenant. Acceptance of the Late Charge by Landlord in such event, including reasonable attorneys’ fees, which shall not be less than fifteen percent ( 15%) constitute a waiver of all such sums owing by Tenant to Landlord.Tenant’s default with respec
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