Common use of Failure to Provide Services Clause in Contracts

Failure to Provide Services. Notwithstanding anything to the contrary set forth in this Lease, Landlord hereby agrees that if there is an interruption or discontinuance of the services which Landlord has agreed to provide in this Lease that are within Landlord’s full control and that renders the Premises un-tenantable and continues for a period of five (5) or more consecutive business days after Landlord receives written notice thereof from Tenant (hereinafter referred to as “Unauthorized Interruption”), Tenant’s Base Rent and all other charges shall xxxxx commencing at the end of said five (5) business day period and continuing until such time as the Premises are rendered tenantable. However, if the Unauthorized Interruption is the result of any misconduct or negligent acts on the part of Tenant, its agents or employees, or due to Tenant’s failure to comply with the provisions hereof, Tenant’s Base Rent and all other charges shall not xxxxx, except to the extent of Landlord’s recovery with regard to the Premises under its rental insurance, if any. Provided, however, if any such Unauthorized Interruption is as a result of the Landlord’s (or its employees’, contractors’, representatives’ or agents’) gross negligence or willful misconduct, and such interruption continues for five (5) consecutive business days after notice of such Unauthorized Interruption is given to Landlord, then Tenant shall be entitled to an abatement of its obligations to make payments of Rent, commencing on the sixth (6th) business day after the notice of such interruption is given and continuing until such time as the interruption ceases. If such interruption shall continue for thirty (30) consecutive days, Tenant may elect to terminate this Lease upon ten (10) days’ notice to Landlord; provided, however, that the election to terminate shall be of no force and effect if prior to the expiration of said ten (10) day period the cause of such Unauthorized Interruption shall have been removed by Landlord. No portion of such Rent so abated shall be subject to subsequent recapture. The specified remedies herein shall be non-exclusive of each other and in addition to any other remedies available to Tenant at law or in equity.

Failure to Provide Services. Notwithstanding anything If any of the services described in this Section 28, or Tenant’s access to the contrary set forth Premises, the Garage or other Common Areas are interrupted, Landlord will use its best efforts to resume the service or access to the extent the same is within the reasonable control of Landlord, and Landlord will use all due diligence to cause others to resume the service or access to the extent the same is beyond the reasonable control of Landlord. Except as otherwise provided in this Lease, Landlord hereby agrees that if there is shall have no liability to Tenant or others based on any failure by Landlord to furnish the foregoing due to Unavoidable Delays and such failure shall neither render Landlord liable for damages to either person or property, nor be construed as an interruption or discontinuance of the services which Landlord has agreed to provide in this Lease that are within Landlord’s full control and that renders the Premises un-tenantable and continues for a period of five (5) or more consecutive business days after Landlord receives written notice thereof from Tenant (hereinafter referred to as “Unauthorized Interruption”), Tenant’s Base Rent and all other charges shall xxxxx commencing at the end of said five (5) business day period and continuing until such time as the Premises are rendered tenantable. However, if the Unauthorized Interruption is the result of any misconduct or negligent acts on the part eviction of Tenant, its agents nor cause a diminution or employees, or due to abatement of Rent nor relieve Tenant of any of Tenant’s failure to comply with obligations hereunder. In the provisions hereofevent Tenant is prevented from using, Tenant’s Base Rent and all other charges shall does not xxxxxuse, except to the extent of Landlord’s recovery with regard to the Premises under its rental insuranceor any portion thereof, if any. Provided, however, if any such Unauthorized Interruption is as a result of the Landlord’s (or its employees’, contractors’, representatives’ or agents’) gross negligence or willful misconduct, and such interruption continues for five (5) consecutive business days after notice or five (5) business days in any twelve (12) month period (the “Eligibility Period”) as a result of such Unauthorized Interruption any matter which substantially interferes with Tenant’s use of the same, if the reason for the suspension or the continuation of the suspension is given anything other than an Unavoidable Delay, provided that any matter caused by the acts or omissions of tenants or other occupants of the Building shall not be deemed to Landlordresult in an Unavoidable Delay for purposes of this Section, then Tenant the Rent (including parking charges) shall be entitled to an abatement of its obligations to make payments of Rentabated or reduced, commencing on as the sixth (6th) business day case may be, after the notice expiration of such interruption is given and continuing until the Eligibility Period for such time as that Tenant continues to be so prevented from using, and does not use, the interruption ceasesPremises, or a portion thereof, in the proportion that the rentable area of the portion of the Premises that Tenant is prevented from using, and does not use, bears to the total rentable area of the Premises. If However, in the event that Tenant is prevented from conducting, and does not conduct, its business in any portion of the Premises for a period of time in excess of the Eligibility Period, and the remaining portion of the Premises is not sufficient to allow Tenant to effectively conduct its business therein, and if Tenant does not conduct its business from such interruption remaining portion, then for such time after expiration of the Eligibility Period during which Tenant is so prevented from effectively conducting its business therein, the Rent for the entire Premises (including all of Tenant’s parking charges) shall continue for thirty (30) consecutive days, Tenant may elect to terminate this Lease upon ten (10) days’ notice to Landlordbe abated; provided, however, if Tenant reoccupies and conducts its business from any portion of the Premises during such period, the Rent (including parking charges) allocable to such reoccupied portion, based on the proportion that the election rentable area of such reoccupied portion of the Premises bears to terminate the total rentable area of the Premises, shall be of no force and effect if prior payable by Tenant from the date such business operations commence. Notwithstanding the foregoing, the Eligibility Period shall not be applicable to the expiration extent that the abatement of said ten Tenant’s Rent (10including parking charges) day period during the cause Eligibility Period is covered by insurance obtained by Landlord as part of such Unauthorized Interruption shall have been removed by LandlordOperating Expenses. No portion of such If Tenant’s right to abatement occurs during the Free Rent so abated Period, then the Free Rent Period shall be subject to subsequent recapture. The specified remedies herein shall be non-exclusive extended for the number of each other and in addition to any other remedies available to Tenant at law or in equitydays that the abatement period overlapped the Free Rent Period.

Failure to Provide Services. Notwithstanding anything (1) If Landlord fails to provide a service required by Article 9, subject to extension for Unavoidable Delays, Tenant may give Landlord notice of such failure and Landlord shall commence restoration and thereafter diligently pursue such restoration to completion within five (5) Business Days after receipt of such notice by Xxxxxx. If Landlord fails to commence restoration and thereafter diligently pursue such restoration to completion within five (5) Business Days after receipt of such notice by Tenant of any of the services described in Article 9 (subject to extension for Unavoidable Delays and/or Tenant Operational Delay), then Tenant, in addition to any other remedy it may have, may, (x) subject to Section 39(I), perform all work necessary to restore such service and deduct the reasonable costs of such restoration from the next installments of Base Rent until Tenant has been reimbursed for the reasonable costs actually incurred by Xxxxxx in restoring such service, or (y) withhold a portion of Base Rent due equal to the contrary set forth sum of (i) 150% of the reasonable cost of performance of such obligations, as reasonably determined by an architect, engineer, and/or other consultant experienced in such matters that is either an employee of Tenant or a third-party engaged by Xxxxxx (“Tenant’s Repair Consultant(s)”) and (ii) any out- of-pocket costs incurred by Tenant with respect to such third-party Tenant’s Repair Consultant(s), until Landlord performs such obligations, to the reasonable satisfaction of Tenant, at which time any amounts so withheld, less the costs incurred by Tenant for such third-party Tenant’s Repair Consultant(s), shall be paid to Landlord within thirty (30) days of Landlord curing such failure (clause (x) and clause (y) collectively, the “Standard Services Remedies”). If any recoupment permitted to Tenant by this Section 9(G)(1) cannot be completed prior to the expiration of this Lease, Landlord hereby agrees shall refund any balance owing on or before such expiration. Landlord’s obligations to refund any balance owing Tenant shall survive the expiration of this Lease. Landlord shall be obligated to continue to provide all services provided for herein if Tenant invokes its right to deduct or withhold Rent as hereinabove provided. (2) (i) If a failure by Landlord to provide the services in this Article 9 creates an emergency or hazardous condition that if there is an interruption (x) affects all or discontinuance a material portion of the Demised Premises or (y) materially renders the Demised Premises or a material portion thereof unsuitable for the uses set forth herein, then Tenant shall give Landlord, its agent, superintendent or the person designated to receive such notice, prompt notice in writing, personally or by nationally recognized overnight mail service (“Overnight Mail”), and (a) if Landlord within twenty-four (24) hours of receipt of said notice, fails to restore services, or (b) if the restoration of such services is of a nature which requires more than twenty-four (24) hours to complete, then Landlord has agreed fails to commence to restore such services within such twenty-four (24) hour period and thereafter diligently prosecute such restoration to completion (in each case subject to extension for Unavoidable Delays and/or Tenant Operational Delay) (clause (a) and clause (b) each a “Landlord Services Default”), then Tenant, in addition to any other remedy it may have, may provide in this Lease that are within Landlord and Landlord’s full control and that renders the Premises un-tenantable and continues for Mortgagee with a period of five (5) Business Day notice, and if Landlord or more consecutive business days after Landlord receives written notice thereof from Tenant (hereinafter referred its Mortgagee fail to as “Unauthorized Interruption”), Tenant’s Base Rent and all other charges shall xxxxx commencing at the end of commence restoring such services within said five (5) business Business Day period and thereafter diligently continue to pursue restoring such services to completion (in each case, subject to extension for Unavoidable Delay and/or Tenant Operational Delay), then Tenant may provide Landlord with a Second Landlord Services Default Notice (as hereinafter defined). If Landlord fails within sixty (60) days following the delivery of the Second Landlord Services Default Notice (subject to extension for Unavoidable Delays and/or Tenant Operational Delay) to commence curing the applicable Landlord Services Default or (having previously commenced curing the 48 Landlord Services Default) to diligently and with continuity prosecute such cure of the applicable Landlord Services Default to completion, then the Lease shall terminate on the last day of such sixty (60) day period (as extended for Unavoidable Delay or Tenant Operational Delay) and continuing neither party shall have any rights, interests, liabilities or obligations under this Lease for the period accruing after the effective date of termination, except those that, by the provisions of this Lease, expressly survive the expiration or termination of the Term of this Lease, unless such Landlord Services Default is cured or such cure is being diligently prosecuted prior to the expiration of such sixty (60) day period. For the avoidance of doubt, the Second Landlord Services Default Notice shall remain in full force and effect until Landlord completes its cure of the applicable Landlord Services Default. (ii) The term “Second Landlord Services Default Notice” shall mean a written notice from Tenant to Landlord that states the applicable Landlord Services Default and Tenant’s intention to terminate the Lease as a result thereof, and shall include the following statement in all capital letters: “THIS IS A TIME SENSITIVE NOTICE AND IF LANDLORD SHALL FAIL TO TAKE THE REQUIRED ACTIONS SPECIFIED IN THIS NOTICE WITHIN SIXTY (60) DAYS FOLLOWING LANDLORD’S RECEIPT OF THIS NOTICE, THEN TENANT SHALL BE DEEMED TO HAVE ELECTED TO TERMINATE THE LEASE PURSUANT TO ARTICLE 9 OF THE LEASE.” (iii) Tenant, upon at least thirty (30) days prior notice by Xxxxxxxx (or such time shorter period as ends on the Premises are rendered tenantableexpiration of Landlord’s cure period, but no less than ten (10) days), shall execute and deliver to Landlord, and/or other person, firm or corporation specified by Landlord, a statement as to whether a Landlord Services Default noted in a Second Landlord Services Default Notice then remains uncured. HoweverFor the avoidance of doubt, if the Unauthorized Interruption is the any failure by Tenant to provide such statement does not constitute either a Tenant Operational Delay or an event of default under Article 32. (3) If, as a result of any misconduct or negligent acts on the part of Tenant, its agents or employees, or due to TenantLandlord’s failure to comply with the provisions hereof, Tenant’s Base Rent and all other charges shall not xxxxx, except to the extent of Landlord’s recovery with regard to obligations under this Article 9, the Demised Premises under its rental insuranceor any Substantial Portion thereof is rendered Untenantable, if any. Providedthen, however, if any such Unauthorized Interruption for the period beginning on the date that is as a result of the Landlord’s (or its employees’, contractors’, representatives’ or agents’) gross negligence or willful misconduct, and such interruption continues for five (5) consecutive business days Business Days after notice of such Unauthorized Interruption the Demised Premises or a Substantial Portion has become Untenantable and Tenant has delivered to Landlord the Untenantability Notice and ending on the date the Demised Premises or the applicable Substantial Portion thereof is given to Landlordno longer Untenantable, then Tenant Base Rent and Additional Rent shall be entitled appropriately abated with respect to an abatement of its obligations to make payments of Rent, commencing on the sixth (6th) business day after Demised Premises or the notice of such interruption is given and continuing until such time as the interruption ceases. If such interruption shall continue for thirty (30) consecutive days, Tenant may elect to terminate this Lease upon ten (10) days’ notice to Landlordapplicable Substantial Portion; provided, however, that Tenant shall not be entitled to an abatement for the election period of time that Landlord is unable to terminate remedy its failure as a result of Unavoidable Delay. (4) In accordance with the terms of Section 9(C)(4), Tenant shall be entitled to a credit against Base Rent for the aggregate of no force and effect each Moving Delay Period that may occur, if prior applicable. (5) In addition to any other remedy Tenant may have, in each instance that the base building HVAC services provided pursuant to Section 9(A)(5) to the expiration Demised Premises or a portion of said the Demised Premises that may consist of a floor or multiple floors wherein no less than the entire portion of the Demised Premises on each such floor (each, as applicable, the “Affected Premises”) falls outside of the applicable temperature range set forth in the HVAC Performance 49 Specifications by five degrees Fahrenheit or more (an “HVAC Failure”), Tenant shall provide Landlord with written notice informing Landlord of such failure (the “HVAC Failure Notice”). In the event the HVAC Failure continues for ten (10) day or more consecutive Business Days after Landlord’s receipt of the HVAC Failure Notice, then upon a second written notice (the “Second HVAC Failure Notice”) from Tenant to Landlord (i) Landlord shall, at its sole cost and expense, diligently and continuously seek to provide Tenant with an alternative office location or multiple locations for Tenant’s employees of the Affected Premises to report to that is reasonably acceptable to Tenant and Landlord shall reimburse Tenant for all costs (regardless of whether reasonable or not) that Tenant incurs to transition to and from the alternative location or locations and (ii) Rent for the Affected Area shall xxxxx for the period commencing on the cause date of such Unauthorized Interruption shall Landlord’s receipt of the Second HVAC Failure Notice and ending on the date that is the earlier of (a) Tenant is provided alternative office space in accordance with clause (i) (which resumption of Rent may be on a pro- rata basis in the event Landlord provides multiple alternative locations), (b) Landlord has provided a temporary solution to remedy the HVAC Failure by means of portable or localized HVAC equipment, outside temperature chiller(s), or other solution or remedy reasonably satisfactory to Tenant, or (c) Landlord demonstrates by written notice to Tenant that the base building HVAC services to the Affected Premises have been removed in compliance with the HVAC Performance Specifications for ten (10) consecutive Business Days and provides documentation demonstrating that it is reasonable to assume the Affected Premises shall remain in compliance based on the repairs, maintenance or overhauls performed by Landlord. No portion Notwithstanding anything the contrary, in the event Landlord fails to satisfy the requirements of such Rent so abated either clause (a), clause (b), or clause (c) within one hundred and twenty (120) days of its receipt of the Second HVAC Failure Notice, Tenant shall be entitled to terminate this Lease for the Affected Area only on another sixty (60) days written notice to Landlord (unless the requirements of either clause (a), clause (b), or clause (c) have been satisfied within such sixty (60) day period, subject to subsequent recapture. The specified remedies herein extension for Unavoidable Delay, as such term is modified pursuant to Section 6(M)(2)) and in the event of a partial termination, Base Rent and Tenant’s Share shall be nonappropriately reduced on a pro-exclusive rata basis. Tenant shall promptly notify Landlord whether a proposed alternative office location is reasonably acceptable to Tenant; Tenant acknowledging that a reasonably acceptable alternative office location might not be newly renovated space or otherwise have leasehold improvements equivalent to Tenant’s Work. For the avoidance of each other and in addition to any other remedies available to doubt, Tenant at law or in equity.may provide Landlord with multiple HVAC Failure Notices throughout the Term of this Lease. H.

Failure to Provide Services. Landlord shall have no liability for damages, abatement of Rent or otherwise, to Tenant or others based on any failure by Tenant to furnish or delay in furnishing the foregoing or any other utilities or services hereunder, or for any diminution in the quality or quantity thereof, due, in whole or in part, to Force Majeure, repair or maintenance work or any other reason, and such failure shall neither render Landlord liable for damages to either person or property, nor be construed as an eviction of Tenant, nor a disturbance of Tenant’s use and possession of the Premises, nor cause a diminution or abatement of Rent nor relieve Tenant of any of Tenant’s obligations hereunder. Furthermore, Landlord shall not be liable under any circumstances for a loss of, or injury to, property or for injury to, or interference with, Xxxxxx’s business, including, without limitation, loss of profits, however occurring, through or in connection with or incidental to a failure to furnish any of the services or utilities required hereunder. To the extent possible, any scheduled Building Systems shutdown shall be reasonably coordinated with Tenant to minimize impact on Tenant’s business operations. Notwithstanding the foregoing or anything to the contrary set forth in this Leasecontained herein, Landlord hereby agrees that if there is an interruption or discontinuance any of the essential services which Landlord has agreed to provide in be provided pursuant to this Lease that are within is suspended as a result of the gross negligence or willful misconduct of Landlord (or Landlord’s full control agents, employees or contractors) (a “Service Interruption”), and that such Service Interruption renders all or a material portion of the Premises un-tenantable unusable for Tenant's normal business purposes permitted hereunder and continues Tenant does not actually use the affected portion of the Premises as a result thereof, for a continuous period of five (5) or more consecutive business days after Landlord receives following written notice thereof from Tenant (hereinafter referred to as except in the event of Force Majeure or any act or omission of Tenant) (the “Unauthorized InterruptionService Interruption Eligibility Period”), then, as Tenant’s 's sole remedy in connection with such Service Interruption, Base Rent and all other charges due under this Lease shall xxxxx commencing at be abated based on the end proportion that the affected portion of said five (5) business day period and continuing until such time as the Premises are rendered tenantable. However, if the Unauthorized Interruption is the result of any misconduct or negligent acts on the part of Tenant, its agents or employees, or due to Tenant’s failure to comply with the provisions hereof, Tenant’s Base Rent and all other charges shall not xxxxx, except bears to the extent of Landlord’s recovery with regard to the entire Premises under its rental insurance, if any. Provided, however, if any such Unauthorized Interruption is as a result of the Landlord’s (or its employees’, contractors’, representatives’ or agents’) gross negligence or willful misconduct, and such interruption continues for five (5) consecutive business days after notice of such Unauthorized Interruption is given to Landlord, then Tenant shall be entitled to an abatement of its obligations to make payments of Rent, commencing on the sixth (6th) business day after the notice of such interruption is given and continuing until such time as the interruption ceases. If such interruption shall continue for thirty (30) consecutive days, Tenant may elect to terminate this Lease upon ten (10) days’ notice to Landlord; provided, however, that if the election to terminate affected portion of the Premises is such that Tenant cannot operate for its normal business purposes permitted hereunder from, and does not actually use, the entirety of the Premises, then all Base Rent shall be of no force and effect if prior to so xxxxx) from the expiration of said ten the Service Interruption Eligibility Period until the earlier of (10i) day period the cause of such Unauthorized date the Service Interruption shall have been removed by Landlord. No is corrected and (ii) the date Tenant is able to use the affected portion of such Rent so abated shall be subject to subsequent recapture. The specified remedies herein shall be non-exclusive of each other and in addition to any other remedies available to Tenant at law or in equity.the Premises for its normal business purposes..