THE REQUEST FOR ZONING RELIEF OR APPROVALS, WHETHER SITE PLAN APPROVAL,
SPECIAL PERMIT OR OTHERWISE, SHALL BE A REASONABLE BASIS FOR LANDLORD TO REFUSE
TO PERMIT OR UNDERTAKE ANY SUCH CONTEST; AND (Y) AT ANY TIME WHEN AN EVENT OF
DEFAULT HAS OCCURRED AND REMAINS OUTSTANDING, LANDLORD MAY REFUSE TO PERMIT OR
UNDERTAKE ANY CONTEST REQUESTED BY TENANT OR MAY REQUIRE TENANT TO TERMINATE ANY
CONTEST THEN UNDERWAY, AND IN SUCH EVENT, TENANT AGREES TO TERMINATE ANY SUCH
ONGOING CONTEST.
Section 3.4
Operating Expenses.
3.4.1
PAYMENT OF OPERATING EXPENSES; DEFINITIONS.
FROM
AND AFTER THE COMMENCEMENT DATE, DURING THE TERM TENANT SHALL PAY TO LANDLORD,
AS ADDITIONAL RENT, THE TENANT'S PROPORTIONATE SHARE OF OPERATING EXPENSES, AS
HEREINAFTER DEFINED, IN ACCORDANCE WITH
8
THIS SECTION 3.4.
THE AMOUNTS DUE FROM TENANT UNDER THIS SECTION 3.4 ARE
COLLECTIVELY REFERRED TO AS "TENANT'S PROPORTIONATE SHARE OF OPERATING
EXPENSES".
PAYMENTS BY THE TENANT ON ACCOUNT OF THE TENANT'S PROPORTIONATE
SHARE OF OPERATING EXPENSES SHALL BE MADE MONTHLY AT THE TIME AND IN THE FASHION
HEREIN PROVIDED FOR THE PAYMENT OF BASE RENT.
THE AMOUNT SO TO BE PAID TO THE
LANDLORD SHALL BE AN AMOUNT FROM TIME TO TIME REASONABLY ESTIMATED BY THE
LANDLORD TO BE SUFFICIENT TO AGGREGATE A SUM EQUAL TO THE TENANT'S PROPORTIONATE
SHARE OF OPERATING EXPENSES FOR EACH CALENDAR YEAR.
OPERATING EXPENSES FOR ANY
PARTIAL CALENDAR YEAR AT THE BEGINNING OR END OF THE TERM SHALL BE PRORATED.
3.4.2
CERTAIN DEFINITIONS.
(A)
"BUILDING OPERATING EXPENSES" MEANS, WITHOUT
DUPLICATING ANY COST INCLUDED IN LAND OPERATING EXPENSES (AS HEREINAFTER
DEFINED), TO THE EXTENT NOT BORNE DIRECTLY BY TENANT UNDER THIS LEASE,
LANDLORD'S COST OF OPERATING THE BUILDING, WHICH SHALL INCLUDE, WITHOUT
LIMITATION:
THE COST OF PREMIUMS FOR ALL INSURANCE CARRIED BY THE LANDLORD ON
THE BUILDING, OR IN CONNECTION WITH THE USE AND OCCUPANCY THEREOF, INCLUDING BUT
NOT LIMITED TO ALL RISK, GENERAL LIABILITY, EXCESS LIABILITY, RENT LOSS
(INCLUDING EXTENDED RENT LOSS COVERAGE), BOILER AND EQUIPMENT, FLOOD AND
EARTHQUAKE; THE REASONABLE AMOUNT OF ANY DEDUCTIBLE FROM ANY INSURANCE CLAIM OF
LANDLORD (BUT ONLY IN THE EVENT OF AN ACTUAL CLAIM PAID AND SETTLED);
COMPENSATION AND ALL FRINGE BENEFITS, WORKER'S COMPENSATION INSURANCE PREMIUMS
AND PAYROLL TAXES PAID TO, FOR OR WITH RESPECT TO ALL PERSONS DIRECTLY ENGAGED
IN MANAGING THE BUILDING; THE COST OF STEAM, WATER, SEWER, GAS, OIL AND
ELECTRICITY, AND OTHER UTILITY CHARGES, EXCLUDING SUCH UTILITY CHARGES
SEPARATELY CHARGEABLE TO TENANTS, WHETHER FOR ADDITIONAL OR SPECIAL SERVICES OR
OTHERWISE; THE COST OF SECURITY AND FIRE PROTECTION SERVICES, IF ANY; THE COST
OF PROPERTY LEVEL ACCOUNTING; AND OTHER EXPENSES PAID IN CONNECTION WITH THE
BUILDING AND NOT RELATED TO OPERATION, CLEANING, MAINTENANCE OR REPAIR THEREOF
THAT ARE THE OBLIGATION OF TENANT UNDER THIS LEASE.
(B)
"LAND OPERATING EXPENSES" MEANS, WITHOUT
DUPLICATING ANY COST INCLUDED IN BUILDING OPERATING EXPENSES, LANDLORD'S COST OF
OPERATING AND MAINTAINING THE LAND, WHICH SHALL INCLUDE, WITHOUT LIMITATION:
PREMIUMS FOR ALL GENERAL LIABILITY AND EXCESS LIABILITY INSURANCE CARRIED BY
LANDLORD ON THE LAND; OPERATIONAL, MAINTENANCE AND REPAIR COSTS OF