THIS SECTION 3.03(E)(II), SHALL MEAN
A VARIANCE OF FOUR PERCENT (4%) OR LESS).
3.04
(A)
IN ANY CASE
PROVIDED IN THIS ARTICLE 3 IN WHICH TENANT IS ENTITLED TO A REFUND, LANDLORD
MAY, IN LIEU OF ALLOWING SUCH REFUND, CREDIT AGAINST THE NEXT DUE INSTALLMENTS
OF FIXED RENT AND ADDITIONAL CHARGES ANY AMOUNTS TO WHICH TENANT SHALL BE
ENTITLED.
NOTHING IN THIS ARTICLE 3 SHALL BE CONSTRUED SO AS TO RESULT IN A
DECREASE IN THE FIXED RENT HEREUNDER.
IF THIS LEASE SHALL EXPIRE BEFORE ANY
SUCH CREDIT SHALL HAVE BEEN FULLY APPLIED, THEN (PROVIDED TENANT IS NOT IN
DEFAULT HEREUNDER BEYOND ANY APPLICABLE NOTICE AND GRACE PERIODS) LANDLORD SHALL
REFUND TO TENANT THE UNAPPLIED BALANCE OF SUCH CREDIT.
(B)
SUBJECT TO THE LAST SENTENCE OF SECTION 3.05
HEREOF, THE EXPIRATION OR TERMINATION OF THIS LEASE DURING ANY TAX YEAR OR
OPERATING YEAR (FOR ANY PART OR ALL OF WHICH THERE IS A TAX PAYMENT OR OPERATING
PAYMENT UNDER THIS ARTICLE 3) SHALL NOT AFFECT THE RIGHTS OR OBLIGATIONS OF THE
PARTIES HERETO RESPECTING SUCH PAYMENT WITH RESPECT TO THE PERIOD PRIOR TO THE
14
EXPIRATION OR EARLIER TERMINATION OF THIS LEASE AND ANY LANDLORD'S STATEMENT OR
TAX BILL, AS THE CASE MAY BE, RELATING TO SUCH PAYMENT MAY BE SENT TO TENANT
SUBSEQUENT TO, AND ALL SUCH RIGHTS AND OBLIGATIONS SHALL SURVIVE, ANY SUCH
EXPIRATION OR TERMINATION.
ANY PAYMENTS DUE UNDER SUCH LANDLORD'S STATEMENT OR
TAX BILL, AS THE CASE MAY BE, SHALL BE PAYABLE WITHIN THIRTY (30) DAYS AFTER
SUCH STATEMENT OR BILL IS SENT TO TENANT.
(C)
THE PARTIES AGREE THAT THE COMPUTATIONS
UNDER THIS ARTICLE 3 ARE INTENDED TO CONSTITUTE A FORMULA FOR AGREED RENTAL
ESCALATION AND MAY OR MAY NOT CONSTITUTE AN ACTUAL REIMBURSEMENT TO LANDLORD FOR
TAXES AND OTHER COSTS AND EXPENSES PAID BY LANDLORD WITH RESPECT TO THE REAL
PROPERTY.
3.05
LANDLORD'S FAILURE TO RENDER OR DELAY IN
RENDERING A LANDLORD'S STATEMENT WITH RESPECT TO ANY OPERATING YEAR OR ANY
COMPONENT OF THE OPERATING PAYMENT SHALL NOT PREJUDICE LANDLORD'S RIGHT TO
THEREAFTER RENDER A LANDLORD'S STATEMENT WITH RESPECT TO ANY SUCH OPERATING YEAR
OR ANY SUCH COMPONENT, NOR SHALL THE RENDERING OF A LANDLORD'S STATEMENT FOR ANY
OPERATING YEAR PREJUDICE LANDLORD'S RIGHT TO THEREAFTER RENDER A CORRECTED
LANDLORD'S STATEMENT FOR SUCH OPERATING YEAR.
LANDLORD'S FAILURE TO RENDER OR
DELAY IN RENDERING A BILL WITH RESPECT TO ANY INSTALLMENT OF TAXES SHALL NOT
PREJUDICE LANDLORD'S RIGHT TO THEREAFTER RENDER SUCH A BILL FOR SUCH
INSTALLMENT, NOR SHALL THE RENDERING OF A BILL FOR ANY INSTALLMENT PREJUDICE
LANDLORD'S RIGHT TO THEREAFTER RENDER A CORRECTED BILL FOR SUCH INSTALLMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, IF LANDLORD
SHALL FAIL TO FURNISH (X) A LANDLORD'S STATEMENT FOR OPERATING EXPENSES (OR A
CORRECTION THEREOF) TO TENANT WITHIN FIVE (5) YEARS AFTER THE END OF AN
OPERATING YEAR, OR (Y) A BILL FOR TAXES (OR A CORRECTED BILL FOR TAXES) TO
TENANT FOR ANY TAX YEAR ON OR BEFORE THE DATE WHICH IS EIGHTEEN (18)