Third, Tenant asserts, without providing any law in support, that Landlord's "attempt to
exercise its purported indemnification rights was too late" because Landlord asserted its rights
after the lease terminated and the lease does not provide that the right to indemnification survives
the termination of the lease (Tenant's memorandum at 14). The court finds this argument to be
unavailing. Landlord submits an email from Landlord's counsel to Tenant's counsel, dated April
28, 2017, prior to the lease's termination, stating that while Landlord "agree[d] that neither
[party] should assert cross-claims against the other [in the federal action] . . . all future rights
[were] reserved" (Landlord's exhibit X). Thus, there is evidence that Landlord reserved its right
to assert a claim for indemnification against Tenant shortly after the commencement of the
federal action. Moreover, as Landlord notes, paragraph 19 of the lease provides that Landlord
may recover as damages any expenditures Landlord makes in connection with Tenant's default in
the "performance of any term . . . of th[e] lease" if "Tenant's lease term shall have expired at the
time of making of such expenditures" (Landlord's motion, exhibit E). Accordingly, pursuant to
paragraph 19, if Tenant is found to have defaulted under the terms of the lease by violating the
ADA, Landlord may be able to recover the costs it incurred in defending that action even if
Landlord made such expenditures and demanded reimbursement after expiration of the
lease.
Fourth, Tenant argues that, because Landlord chose not to timely assert its indemnification
rights at the outset of the federal action, it "proceeded at its own peril" and must prove that it