IF (I) LANDLORD'S
FAILURE TO PERFORM THE REMEDIAL WORK CONSTITUTES A VIOLATION OF LEGAL
REQUIREMENTS, (II) LANDLORD IS REQUIRED TO PERFORM THE REMEDIAL WORK BY ANY
NOTICE OF VIOLATION, ORDER, DECREE, PERMIT, RULE OR REGULATION ISSUED BY ANY
GOVERNMENTAL AUTHORITY, OR (III) LANDLORD'S FAILURE TO PERFORM THE REMEDIAL WORK
WOULD ENDANGER THE HEALTH, SAFETY OR WELFARE OF ANY PERSON ON OR ABOUT THE
PROPERTY; OR
(B)
ANY OTHER REPAIR OR REPLACEMENT OF A CAPITAL NATURE, STRUCTURAL
AND NON-STRUCTURAL, ORDINARY AND EXTRAORDINARY, FORESEEN AND UNFORESEEN, MADE BY
LANDLORD TO THE BASE BUILDING OR THE COMMON AREAS (EXCLUDING COMMON AREAS ON
FLOORS NOT LEASED IN WHOLE OR IN PART BY TENANT) TO THE EXTENT NECESSARY TO
OPERATE, REPAIR AND MAINTAIN THE PROPERTY IN CONFORMITY WITH THE REQUIREMENTS OF
THIS LEASE AND IN ACCORDANCE WITH THE ACCEPTED PRINCIPLES OF SOUND PROPERTY
MANAGEMENT (DETERMINED WITH REFERENCE TO THE OPERATION, REPAIR AND MAINTENANCE
OF COMPARABLE BUILDINGS), EXCLUDING, HOWEVER, ANY SUCH REPAIR OR REPLACEMENT
WHICH (AA) EXPANDS THE NET RENTABLE AREA OF THE PROPERTY, (BB) EXCEPT AS
OTHERWISE EXPRESSLY REQUIRED BY THIS LEASE, UPGRADES OR IMPROVES THE GENERAL
CHARACTER OR QUALITY OF THE PROPERTY, OR (CC) WAS NOT PROPERLY INCLUDED WITHIN
THE FINAL BUDGET (AND WITHOUT A TENANT BUDGET OBJECTION BEING NOTED THEREON WITH
RESPECT TO THE SAME, OTHER THAN A TENANT BUDGET OBJECTION WHICH WAS SUBSEQUENTLY
RESOLVED IN FAVOR OF LANDLORD).
(4)
IF (I) ANY PARTICULAR ITEM OF COST INCURRED BY, OR ON BEHALF OF
LANDLORD, IS ONLY ATTRIBUTABLE, IN PART, TO THE OPERATION, MANAGEMENT, REPAIR
AND MAINTENANCE OF THE PROPERTY, AND, IN PART, TO THE OPERATION, MANAGEMENT,
REPAIR AND MAINTENANCE OF ONE OR MORE OTHER PROPERTIES OWNED OR OPERATED BY
LANDLORD OR ANY AFFILIATES OF LANDLORD, AND (II) SUCH ITEM OF
40
COST IS OTHERWISE INCLUDABLE IN "OPERATING EXPENSES" (BASED ON THE FOREGOING
SECTIONS 2.2(C)(1), (2) AND (3), SEQUENTIALLY APPLIED), THEN ITEM OF COST SHALL
BE ALLOCATED BETWEEN THE PROPERTY AND SUCH OTHER PROPERTY OR PROPERTIES, ON A
FAIR AND EQUITABLE BASIS.
(5)
WHENEVER THIS SECTION 2.2(C) REQUIRES THAT A PARTICULAR ITEM(S) OF
COST IS TO BE ALLOCATED ON A "FAIR AND EQUITABLE BASIS", THE SAME SHALL BE
DEEMED TO REQUIRE THAT SUCH ITEM(S) OF COST BE ALLOCATED REASONABLY, (I) USING
AN ALLOCATION METHOD BASED ON THE COMPARATIVE MEASURE(S) THAT BEST REFLECT THE
APPROPRIATE PORTION OF SUCH ITEM(S) OF COST THAT SHOULD BE INCLUDED WITHIN
"OPERATING EXPENSES" (E.G., TIME, SQUARE FOOTAGE AND/OR OTHER MEASURE AS
APPROPRIATE), AND THAT IS CONSISTENTLY APPLIED FROM CALENDAR YEAR TO CALENDAR
YEAR, AND (II) OTHERWISE IN A MANNER THAT DOES NOT RESULT IN A PROFIT TO
LANDLORD, RESULT IN A DISPROPORTIONATE BURDEN TO TENANT, OR RESULT IN A
DISPROPORTIONATE BENEFIT TO ANY OTHER PERSON(S) OR PROPERT(IES).
(D)
LANDLORD SHALL USE ITS REASONABLE EFFORTS TO MAKE PAYMENTS ON
ACCOUNT OF OPERATING EXPENSES IN A TIME AND MANNER TO OBTAIN THE APPROPRIATE
DISCOUNTS OR REBATES AVAILABLE.
LANDLORD SHALL OPERATE THE PROPERTY IN AN
EFFICIENT MANNER AND EXERCISE REASONABLE EFFORTS TO MINIMIZE OPERATING EXPENSES
CONSISTENT WITH MAINTAINING SERVICES AT A LEVEL