IN ACCORDANCE THEREWITH, HAS PAID TO SUCH TAXING
AUTHORITY AN AMOUNT EQUAL TO THE MORTGAGE RECORDING TAX DEMANDED (TOGETHER WITH
EVIDENCE THEREOF), LANDLORD SHALL REPAY TO TENANT THE AMOUNT, IF ANY, OF SUCH
MORTGAGE RECORDING TAX (BUT NO MORE THAN THE AMOUNT, IF ANY, OF ANY PILOMRT THAT
TENANT MADE TO LANDLORD IN RESPECT OF THE RECORDING OF THE APPLICABLE MORTGAGE),
TOGETHER WITH AN AMOUNT EQUAL TO ANY INTEREST OR PENALTIES IMPOSED ON TENANT BY
THE APPLICABLE TAXING AUTHORITY FOR TENANT'S NON-PAYMENT, WHICH PAYMENT SHALL BE
MADE BY LANDLORD
37
PRIOR TO THE DATE WHICH IS TWENTY-THREE (23) BUSINESS DAYS AFTER THE FINAL MRT
NOTIFICATION.
IF LANDLORD FAILS TO SO REIMBURSE TENANT FOR THE MORTGAGE
RECORDING TAX WITHIN THE FOREGOING PERIOD, TENANT SHALL HAVE THE RIGHT TO OFFSET
THE AMOUNT OF SUCH MORTGAGE RECORDING TAX
TOGETHER WITH INTEREST AT THE
INTEREST RATE FROM THE DATE TENANT MADE SUCH MORTGAGE RECORDING TAX AGAINST THE
NEXT INSTALLMENTS OF CHARGES COMING DUE PURSUANT TO THIS LEASE.
IF AS A RESULT
OF THE EXPIRATION OR TERMINATION OF THIS LEASE OTHER THAN BY REASON OF TENANT'S
DEFAULT TENANT IS UNABLE TO RECOUP THE ENTIRE MORTGAGE RECORDING TAX WITH
INTEREST AS AFORESAID BY OFFSETTING THE SAME AGAINST CHARGES, LANDLORD SHALL
REIMBURSE TENANT FOR ANY SUCH AMOUNT NOT SO RECOUPED LESS ANY AMOUNTS DUE AND
OWING FROM TENANT TO LANDLORD HEREUNDER WITHIN TWENTY-THREE (23) BUSINESS DAYS
OF THE EXPIRATION OR TERMINATION OF THIS LEASE.
NEITHER LANDLORD NOR TENANT
SHALL BE OBLIGATED TO CONTEST THE DECISION OF ANY SUCH AUTHORITY TO DENY, REVOKE
OR TERMINATE ANY EXEMPTIONS OR OTHER RELIEF FROM THE PAYMENT OF SUCH TAXES.
HOWEVER, SHOULD EITHER PARTY DESIRE TO CONTEST ANY SUCH DECISION BY BRINGING A
LAWSUIT OR OTHERWISE, IT MAY DO SO AT ITS OWN RISK AND EXPENSE, AND LANDLORD
SHALL HAVE THE RIGHT TO BRING SUCH LAWSUIT IN THE NAME OF TENANT IF TENANT FAILS
TO DO SO WITHIN TWENTY-THREE (23) BUSINESS DAYS FOLLOWING WRITTEN REQUEST BY
LANDLORD.
IN THE EVENT THAT THE CONTEST OF SUCH DECISION IS SUCCESSFUL AND
LANDLORD HAS PAID THE AMOUNT OF THE MORTGAGE RECORDING TAX TO TENANT, THEN
TENANT SHALL, WITHIN TWENTY-THREE (23) BUSINESS DAYS AFTER WRITTEN DEMAND BY
LANDLORD, REIMBURSE LANDLORD IN AN AMOUNT EQUAL TO THE APPLICABLE MORTGAGE
RECORDING TAX.
SECTION 3.5
THEATER SURCHARGE.
(A)
CALCULATION OF THEATER SURCHARGE.
TENANT COVENANTS AND AGREES TO PAY TO
LANDLORD, FOR THE BENEFIT OF THE REHABILITATION, MAINTENANCE, MANAGEMENT AND
PROMOTION OF THE HISTORIC THEATERS WITHIN THE 42ND STREET PROJECT AREA (WHICH
PAYMENT SHALL BE FORWARDED BY LANDLORD TO A THEATER MANAGEMENT ENTITY) AN AMOUNT
EQUAL TO $0.15 PER OCCUPIED SQUARE FOOT PER ANNUM (THE "THEATER SURCHARGE");
PROVIDED, HOWEVER, THAT THE THEATER SURCHARGE SHALL BE ADJUSTED FOR INFLATION
FROM JANUARY 1, 2000.
(B)
TRIGGERING OF THEATER SURCHARGE OBLIGATION.
THE THEATER SURCHARGE
OBLIGATION IN RESPECT TO ANY GIVEN OCCUPIED SQUARE FOOT SHALL COMMENCE, IN
RESPECT OF EACH SUCH OCCUPIED SQUARE FOOT, UPON THE EARLIER TO OCCUR OF (1) THE
COMMENCEMENT OF THE TERM OF THE SUBLEASE DEMISING SUCH OCCUPIED SQUARE