WITHIN THIRTY (30) DAYS AFTER THE RESOLUTION OF ALL TENANT BUDGET
OBJECTIONS (BY AGREEMENT OF THE PARTIES OR OTHERWISE AS CONTEMPLATED BY
SECTION 2.4(C) ABOVE), LANDLORD SHALL PREPARE AND DELIVER TO TENANT THE FINAL
BUDGET FOR THE BUDGET YEAR, WHICH FINAL BUDGET SHALL REFLECT THE RESOLUTION OF
ALL TENANT BUDGET OBJECTIONS (SUCH FINAL BUDGET, FOR ANY BUDGET YEAR, BEING
HEREIN CALLED THE "FINAL BUDGET"). NOTWITHSTANDING THE FOREGOING, EVEN IF ALL OF
THE TENANT BUDGET OBJECTIONS HAVE NOT THERETOFORE BEEN RESOLVED, LANDLORD, ON OR
PRIOR TO THE DATE THAT IS FORTY-FIVE (45) DAYS PRIOR TO THE FIRST (1ST) DAY OF
THE BUDGET YEAR, SHALL NEVERTHELESS ISSUE A FINAL BUDGET; IT BEING AGREED, IN
SUCH EVENT, THAT ALL UNRESOLVED TENANT BUDGET OBJECTIONS SHALL BE DULY NOTED
THEREON.
(E)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
SECTION 2.4, TENANT'S RIGHT TO RECEIVE BUDGETS UNDER THIS SECTION 2.4, AND TO
ELECT TO RAISE TENANT BUDGET OBJECTIONS WITH RESPECT THERETO, ARE RIGHTS IN
ADDITION TO (AND ARE NOT INTENDED IN ANY MANNER TO LIMIT) THE RIGHTS OF TENANT
HEREUNDER; AND, WITHOUT LIMITING THE GENERALITY THEREOF, NEITHER (I) THE
ISSUANCE OF ANY PROPOSED BUDGET, (II) TENANT'S FAILURE TO RAISE (OR ITS ELECTION
NOT TO RAISE) OBJECTIONS (OR
47
ITS ELECTION TO RAISE CERTAIN OBJECTIONS AND NOT OTHERS) WITH RESPECT TO ANY
PROPOSED BUDGET, NOR (III) THE ISSUANCE OF A FINAL BUDGET, SHALL, IN ANY CASE,
BE DEEMED EITHER (X) TENANT'S AGREEMENT THAT ANY ITEM SET FORTH IN SUCH BUDGET
IS EITHER PROPERLY INCLUDABLE WITHIN "OPERATING EXPENSE" OR "REAL ESTATE TAXES",
AS THE CASE MAY BE, OR OTHERWISE AN ITEM BY WHICH IT IS BOUND, OR (Y) A WAIVER
BY TENANT OF ANY OF ITS RIGHTS UNDER ANY PROVISIONS OF THIS LEASE, INCLUDING THE
PROVISIONS OF SECTION 2.5 HEREOF; PROVIDED, HOWEVER, THAT (I) ALL CONTEMPLATED
OE INCLUDABLE CAPITAL ITEMS THAT ARE INCLUDED WITHIN THE FINAL BUDGET WITHOUT A
TENANT BUDGET OBJECTION NOTED THEREON SHALL BE DEEMED AN OE INCLUDABLE CAPITAL
ITEM (BUT IN NO EVENT SHALL THE AMOUNTS TO BE INCLUDED OPERATING EXPENSES BASED
THEREON, BE DEEMED APPROVED OR ACCEPTED), AND (II) ALL RESOLUTIONS OF TENANT
BUDGET OBJECTIONS (BY AGREEMENT OF THE PARTIES OR OTHERWISE AS CONTEMPLATED BY
SECTION 2.4(C) ABOVE) SHALL BE BINDING UPON BOTH LANDLORD AND TENANT.
(F)
DURING ANY TENANT MANAGEMENT PERIOD, TENANT SHALL BE RESPONSIBLE
FOR PREPARING THE BUDGET AND FINAL BUDGET AND THE FOREGOING PROVISIONS OF THIS
SECTION 2.4 SHALL APPLY MUTATIS MUTANDIS, PROVIDED THAT: (I) REFERENCES THEREIN
TO "LANDLORD" SHALL BE DEEMED TO REFER TO TENANT, (II) REFERENCES THEREIN TO
"TENANT" SHALL BE DEEMED TO REFER TO LANDLORD, (III) REFERENCES THEREIN TO
"TENANT BUDGET OBJECTION" SHALL BE DEEMED TO REFER TO A "LANDLORD BUDGET
OBJECTION", WHICH TERM SHALL MEAN ANY OBJECTION BY LANDLORD TO BUDGET PURSUANT
TO THE PROVISIONS OF THE FIRST SENTENCE OF SECTION 2.4(B), (IV) THE LAST
SENTENCE OF SECTION 2.4(B) SHALL BE DEEMED DELETED, (V) THE LAST PARENTHETICAL
IN SECTION 2.4(C) SHALL BE DEEMED DELETED, AND (VI) SECTION 2.4(E) SHALL BE
DEEMED DELETED.
2.5
Audit Rights