BY TENANT'S NEGLIGENT ACTS
OR OMISSIONS (AND NOT CAUSED BY LANDLORD'S NEGLIGENT ACTS OR OMISSIONS), THEN
WITHIN TEN (10) BUSINESS DAYS OF TENANT'S RECEIPT OF AN INVOICE THEREFOR, TENANT
WILL PAY LANDLORD AN AMOUNT EQUAL TO 50% OF THE DIFFERENCE BETWEEN (A) THE
AGGREGATE DISBURSEMENTS MADE BY LANDLORD PLUS ANY OTHER COSTS OUT-OF-POCKET
INCURRED BY LANDLORD WITH RESPECT TO THIS LEASE WHICH HAVE ACCRUED AS OF THE
TECHBILT TERMINATION EVENT AND (B) THE AGGREGATE PROCEEDS RECEIVED BY LANDLORD
FROM SUCH SALE PURSUANT TO THE TECHBILT REPURCHASE OPTION; PROVIDED, IN ALL
OTHER CIRCUMSTANCES, IF A TECHBILT TERMINATION EVENT OCCURS LANDLORD WILL
IMMEDIATELY RETURN TO TENANT ANY BASE MONTHLY RENTAL PREVIOUSLY PAID BY TENANT
TO LANDLORD UNDER THIS LEASE, PLUS INTEREST THEREON AT LIBOR IF LANDLORD HAS
HELD SUCH BASE MONTHLY RENTAL PAYMENTS FOR LONGER THAN TWELVE (12) MONTHS PRIOR
TO SUCH TERMINATION.
19.3
LANDLORD DEFAULT; FIRM COMPLETION DATE
19.3.1
LANDLORD SHALL NOT BE IN DEFAULT UNDER THIS LEASE UNLESS LANDLORD
FAILS TO PERFORM ANY OF ITS OBLIGATIONS UNDER THIS LEASE, SUCH FAILURE
MATERIALLY INTERFERES WITH THE TENANT'S USE AND OPERATIONS WITHIN THE PREMISES
AND LANDLORD FAILS TO CURE SUCH DEFAULT WITHIN TWENTY (20) DAYS AFTER WRITTEN
NOTICE FROM TENANT SPECIFYING THE NATURE OF SUCH DEFAULT WHERE
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SUCH DEFAULT COULD REASONABLY BE CURED WITHIN SAID TWENTY (20) DAY PERIOD, OR
FAILS TO COMMENCE SUCH CURE WITHIN SAID TWENTY (20) DAY PERIOD AND THEREAFTER
FAILS TO CONTINUE WITH DUE DILIGENCE TO PROSECUTE SUCH CURE TO COMPLETION WHERE
SUCH DEFAULT COULD NOT REASONABLY BE CURED WITH SAID TWENTY (20) DAY PERIOD.
IF
A LANDLORD DEFAULT OCCURS, THEN (1) TENANT MAY PROCEED IN EQUITY OR AT LAW TO
COMPEL LANDLORD TO PERFORM ITS OBLIGATION AND/OR TO RECOVER DAMAGES PROXIMATELY
CAUSED BY SUCH FAILURE TO PERFORM; AND/OR (2) TENANT MAY PERFORM SUCH
OBLIGATIONS AND HAVE THE RIGHT TO BE REIMBURSED FOR THE SUM IT ACTUALLY AND
REASONABLY EXPENDS IN THE PERFORMANCE THEREOF.
19.3.2
IF THE SUBSTANTIAL COMPLETION DATE HAS NOT OCCURRED BY JANUARY 1,
2013 (THE "FIRM COMPLETION DATE"), THEN TENANT'S OBLIGATION TO PAY BASE MONTHLY
RENTAL WILL BE ABATED DOWN TO ZERO DOLLARS ($0) UNTIL SUCH TIME AS THE
SUBSTANTIAL COMPLETION DATE OCCURS (AT WHICH TIME TENANT WILL RESUME PAYING FULL
RENT IN ACCORDANCE WITH ARTICLE 3); PROVIDED, HOWEVER THAT THE FIRM COMPLETION
DATE SHALL BE SUBJECT TO REASONABLE EXTENSION ON ACCOUNT OF A TENANT DELAY OR
FORCE MAJEURE.
AS USED HEREIN, "TENANT DELAY" SHALL MEAN: (1) DELAYS OR FAILURE
OF TENANT TO DELIVER ITEMS IN ACCORDANCE WITH THE WORK LETTER; (2) TENANT'S
FAILURE TO TIMELY FULFILL ITS OBLIGATIONS AS SET FORTH IN THE LEASE RELATED TO
LANDLORD'S CONSTRUCTION WORK WITHIN THE TIME PERIODS SET FORTH HEREIN;
(3) DELAYS CAUSED BY SHELL AND CORE TENANT CHANGE ORDER REQUESTS OR TI TENANT
CHANGE ORDER REQUESTS; OR (4) A WILLFUL OR NEGLIGENT ACT OR OMISSION OF TENANT
OR TENANT'S AGENTS THAT MATERIALLY INTERFERES WITH THE PROGRESS OF THE WORK;
PROVIDED, HOWEVER, THAT IF LANDLORD BECOMES AWARE OF ANY EVENT OR CIRCUMSTANCE
CONSTITUTING A TENANT DELAY