20. DEFAULT; REMEDIES.
Manager will have all the rights and remedies provided in this Section or elsewhere herein, in the event that: (i) Guest defaults in the payment of any sum of money required to be paid hereunder and such default continues for five (5) days after written notice thereof from Manager to Guest; (ii) Guest defaults in the performance of any other term, covenant or condition of this Agreement, and such default continues for five (5) days after written notice thereof from Manager to Guest; (iii) Guest vacates or abandons the Premises during the Rental Term of this Agreement without notice; or (iv) there has commenced any case in bankruptcy against Guest.
In the event of default as designated in this Section or elsewhere herein, in addition to any other rights or remedies provided for herein or at law or in equity, Owner and Manager, at their sole option, will have the following rights: (i) the right to declare the Rental Term ended and to reenter the Premises and take possession thereof, and to terminate all of the rights of Guest in and to the Premises; (ii) the right with/without declaring the Rental Term ended, to reenter the Premises and to occupy the same, or any portion thereof, for and on account of Guest as hereinafter provided, and Guest shall be liable for and pay to Owner/Manager on demand all such expenses as Owner/Manager may have paid, assumed, or incurred in recovering possession of the Premises including costs, expenses, attorneys’ fees and expenditures placing the same in good order and condition, and all other expenses, commissions and charges paid, assumed or incurred by Owner/Manager in or in connection with re-renting the Premises; or (iii) Owner/Manager may remove all persons from the Premises and may, but will not be obligated to, remove all property therefrom, and may, but will not be obligated to, enforce any rights Owner/Manager may have against said property or store the same in any public or private warehouse or elsewhere at the cost and for the account of Guest or the Owner/Manager thereof, Guest agrees to hold Owner/Manager free and harmless from any liability whatsoever, for the removal and/or storage of any such property, whether of Guest or any third party whomsoever.
In the event of termination or breach of this Agreement, Owner/Manager may recover from Guest: (i) any unpaid Rent which has been earned at the time of such termination; plus (ii) the amount by which the unpaid Rent for the balance of the Rental Term after termination; plus (iii) any other amount necessary to compensate Owner/Manager for all the detriment proximately caused by Guest’s failure to perform its obligations under this Agreement; plus (iv) any and all expenses for Damages to the Premises as outlined in this Agreement; plus (v) lost profit from the Premises’ reduced, limited, and/or lost rental revenue.
In any action brought by Owner/Manager to enforce any of its rights under or arising from this Agreement, Owner/Manager will be entitled to receive its costs and legal expenses including reasonable attorneys’ fees, whether such action is prosecuted to judgment or not. If Manager/Owner engages the services of an attorney for the purpose of collecting any Rent or damages due from Guest, Guest will pay the reasonable fees of such attorney for his or her services regardless of the fact that no legal proceeding or action may have been filed or commenced. The Parties hereto will and hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the Parties hereto against the other on any matters whatsoever arising out of or in any way connected with the Agreement, the relationship of Owner/Manager and Guest, Guest’s use of occupancy of the Premises, and/or any claim of injury or damage.
The waiver by Owner/Manager of any default or breach of any of the terms, covenants or conditions hereof on the part of Guest to be kept and performed shall not be a waiver of any preceding or subsequent breach of the same or any other term, covenant or condition contained herein. The subsequent acceptance of Rent or any other payment hereunder by Guest to Owner/Manager will not be construed to be a waiver of any preceding breach by Guest of any term, covenant or condition of this Agreement other than the failure of Guest to pay the particular rental or other payment or portion thereof so accepted, regardless of Owner/Manager’s knowledge of such preceding breach at the time of acceptance of such rental or other payment. No payment by Guest or receipt by Owner/Manager of a lesser amount than the rent herein provided will be deemed to be other than on account of the earliest rent due and payable hereunder, nor will any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed an accord and a satisfaction, and Owner/Manager may accept any such check or payment without prejudice to Owner/Manager’s rights to recover the balance of such rent or pursue any other remedy in or under this Agreement.
Nothing contained herein will constitute a waiver of Owner/Manager’s right to recover damages by reason of Owner/Manager’s efforts to mitigate the damage to it caused by Guest’s default; nor will anything in this Section adversely affect Owner/Manager’s right, as in this Agreement elsewhere provided, to indemnification against liability for injury or damage to persons or property occurring prior to a termination of this Agreement.