WHICH THE
ANTICIPATED INCLUSION DATE OCCURS, (VI) LANDLORD SHALL NOT BE REQUIRED TO
PERFORM ANY LANDLORD'S WORK OR ANY OTHER WORK, PAY A LANDLORD'S CONTRIBUTION OR
A WORK ALLOWANCE OR ANY OTHER AMOUNT, OR RENDER ANY SERVICES TO MAKE THE
BUILDING OR THE OFFER SPACE READY FOR TENANT'S USE OR OCCUPANCY, AND TENANT
SHALL ACCEPT THE OFFER SPACE IN ITS "AS IS" CONDITION ON THE OFFER SPACE
INCLUSION DATE (EXCEPT THAT LANDLORD SHALL DELIVER THE SAME IN COMPLIANCE WITH
LEGAL REQUIREMENTS AND FREE OF ASBESTOS AND ASBESTOS CONTAINING MATERIALS), AND
(VII) THE TERM OF THE LEASE OF THE OFFER SPACE SHALL BE COTERMINOUS WITH THE
TERM OF THIS LEASE.
(E)
IF IN TENANT'S RENT NOTICE, TENANT DISPUTES
LANDLORD'S DETERMINATION OF FAIR OFFER RENTAL, AND LANDLORD AND TENANT FAIL TO
AGREE AS TO THE AMOUNT THEREOF WITHIN TWENTY (20) BUSINESS DAYS AFTER THE GIVING
OF TENANT'S RENT NOTICE, THEN THE DISPUTE SHALL BE RESOLVED BY ARBITRATION IN
THE SAME MANNER AS A DISPUTE INVOLVING FAIR MARKET RENT PURSUANT TO
SECTION 36.01 HEREIN; PROVIDED, THAT SUCH ARBITRATION PROCEEDING SHALL NOT
COMMENCE PRIOR TO THE DATE THAT IS THREE (3) MONTHS BEFORE THE ANTICIPATED
INCLUSION DATE.
IF THE DISPUTE SHALL NOT HAVE BEEN RESOLVED ON OR BEFORE THE
OFFER SPACE INCLUSION DATE, THEN PENDING SUCH RESOLUTION, TENANT SHALL PAY, AS
FIXED RENT FOR THE APPLICABLE OFFER SPACE, AN AMOUNT EQUAL TO LANDLORD'S OFFER
DETERMINATION.
IF SUCH RESOLUTION SHALL BE IN FAVOR OF TENANT, THEN WITHIN
TWENTY (20) DAYS AFTER THE FINAL DETERMINATION OF FAIR OFFER RENTAL, LANDLORD
SHALL REFUND TO TENANT ANY OVERPAYMENT OR CREDIT TENANT AGAINST RENT NEXT COMING
DUE, AT LANDLORD'S OPTION.
(F)
IF LANDLORD IS UNABLE TO DELIVER
POSSESSION OF THE OFFER SPACE TO TENANT FOR ANY REASON ON OR BEFORE THE DATE ON
WHICH LANDLORD ANTICIPATES THAT THE OFFER SPACE SHALL BE AVAILABLE AS SET FORTH
IN THE OFFER NOTICE, THE OFFER SPACE INCLUSION DATE SHALL BE THE DATE ON WHICH
LANDLORD IS ABLE TO SO DELIVER POSSESSION AND LANDLORD SHALL HAVE NO LIABILITY
TO TENANT THEREFOR AND THIS LEASE SHALL NOT IN ANY WAY BE IMPAIRED.
THIS
SECTION 37.01(F) CONSTITUTES "AN EXPRESS PROVISION TO THE CONTRARY" WITHIN THE
MEANING OF SECTION 223-A OF THE NEW YORK REAL PROPERTY LAW AND ANY OTHER LAW OF
LIKE IMPORT NOW OR HEREAFTER IN EFFECT.
NOTWITHSTANDING THE FOREGOING, LANDLORD
SHALL USE COMMERCIALLY REASONABLE EFFORTS TO DELIVER THE OFFER SPACE TO TENANT
AS SOON AS POSSIBLE FOLLOWING THE PROJECTED OFFER SPACE INCLUSION DATE, AND IF
FOR ANY REASON SUCH OFFER SPACE IS NOT DELIVERED TO TENANT WITHIN ONE HUNDRED
EIGHTY (180) DAYS FROM THE PROJECTED OFFER SPACE INCLUSION DATE FOR SUCH OFFER
SPACE (THE "OFFER SPACE
83
OUTSIDE DATE"), THEN TENANT SHALL HAVE THE RIGHT TO RESCIND ITS EXERCISE OF THE
OFFER SPACE OPTION WITH RESPECT TO SUCH OFFER SPACE UPON THIRTY (30) DAYS
WRITTEN NOTICE TO LANDLORD GIVEN, IF AT ALL, WITHIN FIFTEEN (15) DAYS AFTER THE
OFFER SPACE OUTSIDE DATE (WITH TIME BEING OF THE ESSENCE WITH RESPECT TO THE