FOR A GREATER OR
LESSER TERM THAN THAT REMAINING UNDER THIS LEASE, THE RIGHT TO RELET THE
PREMISES AS A PART OF A LARGER AREA, AND THE RIGHT TO CHANGE THE CHARACTER OR
USE MADE OF THE PREMISES), AND LANDLORD SHALL NOT BE REQUIRED TO ACCEPT ANY
TENANT OFFERED BY TENANT OR TO OBSERVE ANY INSTRUCTIONS GIVEN BY TENANT ABOUT
SUCH RELETTING; PROVIDED, HOWEVER, LANDLORD SHALL NOT BE REQUIRED TO RELEASE THE
PREMISES BEFORE LEASING ANY OTHER SPACE IN THE BUILDING AND LANDLORD SHALL NOT
BE DEEMED TO HAVE FAILED TO MITIGATE IF LANDLORD OR ITS AFFILIATES LEASE ANY
OTHER PORTIONS OF THE BUILDING OR OTHER BUILDINGS OWNED OR MANAGED BY LANDLORD
OR ITS AFFILIATES BEFORE RELETTING ALL OR ANY PORTION OF THE PREMISES.
(C)
LANDLORD DEFAULT.
IF LANDLORD FAILS TO PAY
ON OR BEFORE THE DUE DATE THEREOF (WHICH DUE DATE SHALL, UNLESS OTHERWISE
SPECIFIED HEREIN, BE THE DATE THAT IS THIRTY (30) DAYS FROM THE DATE SUCH
INVOICE OR STATEMENT IS RENDERED TO LANDLORD) ANY AMOUNTS DUE TO TENANT UNDER
THIS LEASE AND SHALL NOT CURE SUCH FAILURE WITHIN FIVE (5) BUSINESS DAYS
FOLLOWING TENANT'S WRITTEN NOTICE TO LANDLORD OR IF LANDLORD FAILS TO KEEP OR
PERFORM ANY OF ITS OBLIGATIONS UNDER THIS LEASE AND SHALL NOT CURE SUCH FAILURE
WITHIN THIRTY (30) DAYS FOLLOWING TENANT'S WRITTEN NOTICE TO LANDLORD EXCEPT
WHERE SPECIFIC SHORTER PERIODS ARE HEREIN SPECIFIED, LANDLORD SHALL BE IN
DEFAULT UNDER THIS LEASE (A "LANDLORD DEFAULT"); PROVIDED, HOWEVER, IF THE
FAILURE IS OF A NATURE THAT IT CANNOT BE CURED WITHIN SUCH SHORTER PERIOD OR
THIRTY (30) DAYS, RESPECTIVELY, LANDLORD SHALL NOT BE IN DEFAULT SO LONG AS
LANDLORD COMMENCES THE CURE WITHIN SUCH PERIOD AND DILIGENTLY PURSUES THE CURE
TO COMPLETION AS SOON AS REASONABLY POSSIBLE.
UPON THE OCCURRENCE OF A LANDLORD
DEFAULT WHICH DEFAULT REMAINS UNCURED FOR THE PERIOD DESCRIBED IN THE PRECEDING
SENTENCE,
(I)
IN THE EVENT THAT SUCH LANDLORD DEFAULT
RELATES TO THE FAILURE TO PROVIDE ANY SERVICE, MAINTENANCE OR REPAIR REQUIRED OF
LANDLORD UNDER THE LEASE
26
AND SUCH DEFAULT MATERIALLY AND ADVERSELY AFFECTS TENANT'S BUSINESS OPERATIONS
IN THE PREMISES, THEN TENANT SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO
REMEDY LANDLORD'S FAILURE AND CHARGE LANDLORD FOR THE REASONABLE OUT-OF-POCKET
COST OF SUCH REMEDY, WHICH CHARGES SHALL BE PAYABLE BY LANDLORD.
NOTWITHSTANDING THE FOREGOING PROVISIONS, NO WORK BY TENANT SHALL MATERIALLY
INTERFERE WITH THE USE OR ENJOYMENT OF THE BUILDING BY ANY OTHER TENANT OR
OCCUPANT OR USER OF THE BUILDING.
(II)
IN THE EVENT SUCH LANDLORD DEFAULT ARISES
BECAUSE OF THE FAILURE BY LANDLORD TO PAY TO TENANT ANY ALLOWANCE PROVIDED OR
REFUND DUE TO TENANT PURSUANT TO THIS LEASE, OR BECAUSE OF FAILURE IN THE
REIMBURSEMENT OF EXPENSES UNDER SECTION 18(C)(I) ABOVE, TENANT SHALL HAVE THE
RIGHT TO DEDUCT SUCH COSTS FROM MONTHLY RENTAL NEXT ACCRUING HEREUNDER;
PROVIDED, HOWEVER, THAT ANY SUCH DEDUCTION SHALL NOT, IN THE AGGREGATE, BE MORE
THAN TWENTY PERCENT (20%) OF THE TOTAL MONTHLY RENTAL THEN DUE HEREUNDER DURING
SUCH MONTH.
(III)