FOR SUCH OPERATING YEAR, LANDLORD SHALL AT ITS OPTION EITHER (1)
CREDIT THE EXCESS TO THE NEXT SUCCEEDING INSTALLMENTS OF RENT OR (2) PAY THE
EXCESS TO TENANT WITHIN THIRTY (30) DAYS AFTER DELIVERY OF SUCH ANNUAL
STATEMENT.
IF THE ANNUAL STATEMENT SHOWS THAT TENANT'S PAYMENTS OF ESTIMATED
ADDITIONAL RENT FOR SUCH OPERATING YEAR WERE LESS THAN TENANT'S OBLIGATION FOR
SUCH OPERATING YEAR, TENANT SHALL PAY THE DEFICIENCY TO LANDLORD WITHIN THIRTY
(30) DAYS AFTER DELIVERY OF THE ANNUAL STATEMENT.
IN THE EVENT THAT THE
ESTIMATED ADDITIONAL RENT PAID BY TENANT DURING THE FINAL LEASE YEAR EXCEEDS THE
ACTUAL ADDITIONAL RENT DUE FOR SUCH LEASE YEAR, THEN UPON THE EXPIRATION OF THE
TERM, AND PROVIDED THERE IS NO UNCURED DEFAULT BY TENANT UNDER THIS LEASE,
LANDLORD OR AGENT SHALL PAY TENANT THE THEN APPLICABLE EXCESS PROMPTLY AFTER
DETERMINATION THEREOF. IN THE EVENT THAT UPON EXPIRATION OF THE TERM A BONA FIDE
DISPUTE EXISTS BETWEEN LANDLORD AND TENANT WITH RESPECT TO THE EXISTENCE OF AN
UNCURED DEFAULT, THE PARTIES WILL DILIGENTLY AND IN GOOD FAITH ATTEMPT TO
RESOLVE THE DISPUTE AS EXPEDITIOUSLY AS POSSIBLE AND PAYMENT OF THE EXCESS
AMOUNT WILL BE SUSPENDED PENDING RESOLUTION OF THE DISPUTE.
IN THE EVENT THAT
MEDIATION OR ARBITRATION OF THE DISPUTE BECOMES NECESSARY AFTER THE EXPIRATION
OF THE LEASE TERM, EACH PARTY WILL BEAR THEIR OWN COSTS AND ATTORNEY'S FEES. NO
INTEREST SHALL BE PAYABLE TO TENANT ON ACCOUNT OF SUCH PAYMENTS OF ESTIMATED
ADDITIONAL RENT AND SUCH PAYMENTS MAY BE COMMINGLED.
6
4.
USE OF PREMISES AND COMMON AREAS; SECURITY DEPOSIT.
4.1.
USE OF PREMISES AND PROPERTY.
THE PREMISES SHALL BE USED BY THE
TENANT FOR THE PURPOSE(S) SET FORTH IN SECTION 1.8 ABOVE AND FOR NO OTHER
PURPOSE WHATSOEVER.
TENANT SHALL NOT, AT ANY TIME, USE OR OCCUPY, OR SUFFER OR
PERMIT ANYONE TO USE OR OCCUPY, THE PREMISES, OR DO OR PERMIT ANYTHING TO BE
DONE IN THE PREMISES OR THE PROPERTY, IN ANY MANNER THAT MAY (A) CAUSE, OR BE
LIABLE TO CAUSE, INJURY TO, OR IN ANY WAY IMPAIR THE PROPER UTILIZATION OF, ALL
OR ANY PORTION OF THE PROPERTY (INCLUDING, BUT NOT LIMITED TO, THE STRUCTURAL
ELEMENTS OF THE PROPERTY) OR ANY EQUIPMENT, FACILITIES OR SYSTEMS THEREIN; (B)
CONSTITUTE A VIOLATION OF THE APPLICABLE LAWS AND REQUIREMENTS OF ANY PUBLIC
AUTHORITY OR THE REQUIREMENTS OF INSURANCE BODIES OR THE REASONABLE RULES AND
REGULATIONS OF THE PROPERTY, AS SUCH MAY BE ESTABLISHED OR AMENDED BY LANDLORD
FROM TIME TO TIME (THE "RULES"), OR ANY COVENANT, CONDITION OR RESTRICTION
AFFECTING THE PROPERTY; (C) EXCEED THE LOAD BEARING CAPACITY OF THE FLOOR OF THE
PREMISES; OR (D) UNREASONABLY ANNOY, INCONVENIENCE OR DISRUPT THE OPERATIONS OR
TENANCIES OF OTHER TENANTS THAT MAY HAVE RIGHTS TO USE THE COMMON AREAS OR THE
BUILDING.
4.2.
USE OF COMMON AREAS.
AS USED HEREIN, "COMMON AREAS" SHALL MEAN ALL
AREAS WITHIN THE PROPERTY THAT ARE AVAILABLE FOR THE COMMON USE OF TENANTS OF
THE PROPERTY AND THAT ARE NOT LEASED OR HELD FOR THE EXCLUSIVE