Circuit City 1997 Annual Report Download - page 40

petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Tenant or a
Guarantor, the same is dismissed within sixty (60) days); the appointment of a trustee or receiver to Tenant's assets located at the Premises or of
Tenant's interest in this Lease, of substantially all of Guarantor's assets, where possession is not restored to Tenant or such Guarantor, as the
case may be, within sixty (60) days; the attachment, execution or other judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease where such seizure is not discharged within sixty (60) days; or if this Lease shall, by operation of
law or otherwise, pass to any person or persons other than Tenant except as provided in PARAGRAPH 19 herein; (d) The failure of Tenant to
timely comply with the provisions of PARAGRAPH 24 or PARAGRAPH 31 of this Lease regarding, respectively, Subordination and Estoppel
Certificates; or (e) The failure to perform any other provision of this Lease WITHIN THIRTY (30) DAYS OF LANDLORD'S NOTICE OF
SUCH FAILURE, UNLESS SAME CANNOT BE CURED WITHIN SUCH THIRTY (30) DAY PERIOD, AND IF TENANT SHALL HAVE
PROMPTLY COMMENCED AND BE DILIGENTLY PURSUING SUCH CURE, THE CURE PERIOD SHALL BE EXTENDED UNTIL
TENANT CURES SAME, BUT IN NO EVENT LONGER THAN NINETY (90) DAYS.
21. LANDLORD'S REMEDIES.
Landlord shall have the remedies described in this PARAGRAPH 21 if Tenant is in default. These remedies are not exclusive; they are
cumulative and in addition to any remedies now or later allowed by law.
Upon any such default, Landlord may terminate Tenant's right to possession of the Premises at any time AFTER TEN (10) DAYS NOTICE.
No act by Landlord other than giving notice to Tenant shall terminate this Lease. Act of maintenance, efforts to relet the Premises, or the
appointment of a receiver on Landlord's initiative to protect Landlord's interest under this Lease shall not constitute a termination f Tenant's
right to possession. Upon termination of Tenant's right to possession, Landlord has the right to recover from Tenant; (1) The worth at the time
of award of any unpaid rent which had been earned at the time of termination of Tenant's right to possession; (2) The worth at the time of
award of the amount by which the unpaid rent which would have been earned after the date of termination of Tenant's right to possession until
the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; (3) 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 award exceeds the amount of such rental loss that
Tenant proves could be reasonably avoided; (4) Any other amount, including court attorney and collection costs, necessary to compensate
Landlord for all detriment proximately caused by Tenant's default. "The worth" as used for Items (1) and (2) in this PARAGRAPH 21 is to be
computed by allowing interest at the lesser of 12%, whichever is grater. "The worth" as used for Item (3) in this PARAGRAPH 21 is to be
computed by discounting the amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of termination plus one
percent(1%).
In the event of any default by Tenant, Landlord shall also have the right, with or without terminating this Lease, to re-enter the Premises and
remove all persons and property from the Premises; such property may be removed and stored in a public warehouse or elsewhere at the cost of
and for the account of Tenant or disposed of in a reasonable manner by Landlord. No re-
entry or taking possession of the Premises by Landlord
pursuant to this PARAGRAPH 21 shall be construed as an election to terminate this Lease unless a written notice of such intention is given to
Tenant or unless the termination thereof is decreed by a court of competent jurisdiction.
22. DEFAULT BY LANDLORD.
Landlord shall not be in default hereunder unless Landlord fails to perform the obligations required of Landlord within a reasonable time, but in
no event later than forty-five (45) days after written notice by Tenant to Landlord and to the holder of any first mortgage or deed of trust
covering the Premises, or the lessor of any underlying or ground lease affecting the Project, in writing specifying wherein Landlord has failed
to perform such obligation, OR IF LANDLORD FAILS TO MAINTAIN THE INSURANCE REQUIRED UNDER PARAGRAPH 16
HEREOF; provided, however, that if the nature of Landlord's obligation is such that more than forty-
five (45) days is required for performance,
then Landlord shall not be in default if Landlord commences performance within such forty-five (45) day period and thereafter diligently
prosecutes the same to completion. In no event shall Tenant have the right to terminate this Lease as a result of Landlord's default; Tenant's
remedies shall be limited to any other remedy available at law or in equity. Nothing herein contained shall be interpreted to mean that Tenant is
excused from paying rent due hereunder as a result of any default by landlord. IN THE EVENT OF DAMAGE TO THE PORTIONS OF THE
PREMISES WHICH LANDLORD IS OBLIGATED TO REPAIR AND MAINTAIN UNDER THIS LEASE AND WHICH AFFECT THE
PREMISES TO SUCH AN EXTENT (A) AS TO CAUSE AN IMMINENT THREAT OF INJURY TO PERSONS OR DAMAGE TO
PERSONAL PROPERTY WITHIN THE PREMISES, OR (B) AS TO PREVENT TENANT'S OCCUPANCY OR USE OF ALL OR ANY
MATERIAL PORTION OF THE PREMISES FOR ITS EXISTING PERMITTED USES, IF LANDLORD FAILS TO RESPOND WITHIN
SEVENTY-TOW (72) HOURS AFTER NOTICE FROM TENANT THEN TENANT SHALL HAVE THE RIGHT (SO LONG AS TENANT
IS NOT IN DEFAULT UNDER THIS LEASE) TO UNDERTAKE REPAIRS, TO THE EXTENT NECESSARY ONLY TO SECURE THE
PREMISES FROM THE IMMINENT THREAT OF INJURY TO PERSONS OR DAMAGE TO PERSONAL PROPERTY OR TO ALLOW
TENANT TO OPERATE ITS BUSINESS FORM THE PREMISES. THE COST OF SUCH REPAIRS SHALL BE BORNE BY TENANT,
BUT SHALL BE SUBJECT TO REIMBURSEMENT FROM LANDLORD THROUGH WRITTEN REQUEST FOR PAYMENT
ACCOMPANIED BY COPIES OF ITEMIZED, PAID INVOICES AND LIEN RELEASE WAIVERS EXECUTED BY ALL
CONTRACTORS WHO PROVIDED SUCH REPAIR SERVICES, AND LANDLORD SHALL HAVE FORTY-FIVE (45) DAYS FROM
RECEIPT OF SUCH REQUEST AND ALL SUPPORTING DOCUMENTATION TO PAY SUCH COSTS TO TENANT.
23. ENTRY OF PREMISES AND PERFORMANCE BY TENANT.
Landlord and its authorized representatives shall have the right to enter the Premises at all reasonable times DURING NORMAL BUSINESS
HOURS AND UPON TWENTY
-
FOUR (24) HOURS NOTICE for any of the following purposes: (a) To determine whether the Premises are