of the Existing Improvements pursuant to this
Section 6.5(c) shall not be deemed delivery of Possession of the Property or any
portion thereof.
66
SECTION 6.6
CONSTRUCTION OF TENANT'S SUBWAY
IMPROVEMENTS.
(A) TENANT SHALL PERFORM OR CAUSE TO BE PERFORMED ANY REQUIRED
CONSTRUCTION WORK IN RESPECT OF THE 40TH STREET SUBWAY ENTRANCE (INCLUDING,
WITHOUT LIMITATION, THE RELOCATION THEREOF) IN ACCORDANCE WITH THE REQUIREMENTS
OF THE ZONING RESOLUTION AS SET FORTH ON JUNE 20, 2000 AS IF SUCH REQUIREMENTS
WERE APPLICABLE TO THE PROPERTY ("TENANT'S SUBWAY IMPROVEMENTS"). THE
CONSTRUCTION OF TENANT'S SUBWAY IMPROVEMENTS SHALL BE GOVERNED BY THE SITE 8
SOUTH SUBWAY AGREEMENT AND ALL APPLICABLE LEGAL REQUIREMENTS; PROVIDED, HOWEVER,
THAT LANDLORD SHALL HAVE THE CONTINUING RIGHT TO REVIEW ANY MODIFICATION TO THE
SITE 8 SOUTH SUBWAY AGREEMENT AND TO APPROVE SAME SOLELY TO THE EXTENT THAT ANY
SUCH MODIFICATION IMPACTS THE DUO. IN THE EVENT OF ANY CONFLICT BETWEEN THE
TERMS OF THIS LEASE AND THE TERMS OF THE SITE 8 SOUTH SUBWAY AGREEMENT IN
RESPECT OF THE PERFORMANCE OF TENANT'S SUBWAY IMPROVEMENTS, THE TERMS OF THE
SITE 8 SOUTH SUBWAY AGREEMENT SHALL PREVAIL. LANDLORD ACKNOWLEDGES THAT
SUBSTANTIAL COMPLETION OF TENANT'S SUBWAY IMPROVEMENTS IS NOT A CONDITION
PRECEDENT TO SUBSTANTIAL COMPLETION OF TENANT'S CONSTRUCTION WORK.
(B)
TENANT SHALL BE RESPONSIBLE FOR ALL COSTS IN RESPECT OF TENANT'S
SUBWAY IMPROVEMENTS. SUBJECT TO SECTION 3.04(B) OF THE SITE 8 SOUTH LADA,
TENANT'S ALLOCATION (BASED ON AN ALLOCATION BETWEEN THE TENANTS OF ALL SEVERANCE
SUBLEASES AS TO WHICH ALL SUCH TENANTS HAVE JOINTLY NOTIFIED LANDLORD ON OR
BEFORE THE COMMENCEMENT DATE) OF THE ACTUAL COSTS OF TENANT'S SUBWAY
IMPROVEMENTS IN EXCESS OF FOUR MILLION DOLLARS ($4,000,000) SHALL BE REIMBURSED
TO TENANT AS A CREDIT AGAINST PILOT UNDER THIS LEASE, BUT ONLY TO THE EXTENT
THAT ANY SUCH EXCESS EXPENDITURE WAS REASONABLY REQUIRED, IN LANDLORD'S
REASONABLE OPINION BASED ON A DETAILED ACCOUNTING OF SUCH COSTS PROVIDED BY
TENANT TO LANDLORD, IN ORDER TO CONSTRUCT THE MINIMUM IMPROVEMENTS THAT WOULD BE
REQUIRED UNDER THE ZONING RESOLUTION AS OF JUNE 20, 2000.
(C)
IN THE EVENT THAT THE COMPLETION OF TENANT'S SUBWAY IMPROVEMENTS IS
DETERMINED BY THE NEW YORK CITY DEPARTMENT OF BUILDINGS TO BE A CONDITION TO
OBTAINING A TEMPORARY OR PERMANENT CERTIFICATE OF OCCUPANCY FOR THE CORE AND
SHELL (AND, THEREFORE, IS A CONDITION TO THE ACHIEVEMENT OF SUBSTANTIAL
COMPLETION), AND TENANT IS DELAYED IN OBTAINING ANY SUCH CERTIFICATE OF
OCCUPANCY SOLELY DUE TO A DELAY ACTUALLY CAUSED BY THE NEW YORK CITY TRANSIT
AUTHORITY (AFTER TAKING INTO ACCOUNT ALL REASONABLE MEASURES THAT WERE TAKEN OR
SHOULD REASONABLY HAVE BEEN TAKEN BY TENANT TO MITIGATE THE EFFECTS THEREOF),
THE FIXED SUBSTANTIAL COMPLETION DATE SHALL BE EXTENDED FOR A PERIOD REASONABLY
DETERMINED BY LANDLORD, BUT IN NO EVENT SHALL SUCH EXTENSION BE FOR A PERIOD
GREATER THAN THE PERIOD REASONABLY CAUSED BY SUCH DELAY.
(D)
PRIOR TO THE EXECUTION OF THE SITE 8 SOUTH SUBWAY AGREEMENT, THE
PUBLIC PARTIES SHALL, AT TENANT'S REASONABLE COST, COOPERATE WITH TENANT IN ANY
REASONABLE WAY, TO FACILITATE (BUT