ON ACCOUNT HEREOF; PROVIDED, HOWEVER, THERE SHALL BE
NO DEFERRAL OF THE COMMENCEMENT DATE IF SUCH OBLIGATIONS ARE NOT SUBSTANTIALLY
COMPLETED BECAUSE OF ANY TENANT DELAY, AS SUCH TERM IS DEFINED IN THE WORK
LETTER.
IN ADDITION, IN THE EVENT LANDLORD HAS NOT SUBSTANTIALLY COMPLETED ITS
EXPRESS OBLIGATIONS HEREUNDER AND UNDER THE WORK LETTER TO IMPROVE THE PREMISES
AND THE BUILDING BY THE DATE WHICH IS CALCULATED BY STARTING WITH DECEMBER 31,
2002 AND ADDING THERETO ALL TENANT DELAYS AND DELAYS OF UP TO SIX (6) MONTHS FOR
FORCE MAJEURE (AS HEREINAFTER DEFINED), TENANT SHALL HAVE THE RIGHT TO TERMINATE
THIS LEASE BY DELIVERY OF WRITTEN NOTICE TO THAT EFFECT TO LANDLORD WITHIN FIVE
(5) DAYS OF SUCH DATE AND PRIOR TO SUBSTANTIAL COMPLETION.
LANDLORD'S
OBLIGATIONS SHALL NOT BE DEEMED INCOMPLETE IF THE REQUIREMENTS FOR THE ISSUANCE
OF A CERTIFICATE OF OCCUPANCY WITH RESPECT TO THE PREMISES ARE SATISFIED (EXCEPT
FOR FURNITURE INSTALLATION AND DATA CENTER EQUIPMENT AND ANY OTHER WORK WHICH IS
TO BE PERFORMED BY TENANT) AND ONLY INSUBSTANTIAL DETAILS OF CONSTRUCTION,
DECORATION OR MECHANICAL ADJUSTMENTS REMAIN TO BE DONE.
THE REASONABLE
DETERMINATION OF LANDLORD'S ARCHITECT FOR THE BUILDING SHALL BE FINAL AND
CONCLUSIVE ON TENANT AS TO WHETHER LANDLORD'S OBLIGATIONS ARE SUBSTANTIALLY
COMPLETED. AS USED HEREIN, THE TERM "FORCE MAJEURE" SHALL MEAN ANY OF THE
FOLLOWING: (I) WAR, ENEMY ACTION, CIVIL COMMOTION, RIOTS, OR NATIONAL EMERGENCY;
(II) PRESIDENTIAL ORDER; (III) NATIONAL DEFENSE PREEMPTION OF NECESSARY
MATERIALS; (IV) STRIKE OR LOCKOUT; (V) FIRE OR OTHER CASUALTY (SPECIFICALLY
INCLUDING VANDALISM, THEFT, LOSS OF OR DAMAGE TO MATERIALS IN TRANSIT OR STORED
OFF-SITE); (VI) GOVERNMENTAL OR MUNICIPAL MORATORIA OR RESTRICTIONS; (VII)
LABOR, MATERIAL OR ENERGY SHORTAGES; (VIII) ACTS OF GOD; (IX) EXTRAORDINARY
WEATHER CONDITIONS NOT REASONABLY ANTICIPATABLE; (X) UTILITY COMPANY FAILURE TO
PROVIDE SERVICE; (XI) ANY OTHER REASON, DELAY, CAUSE, ACT OR OMISSION BEYOND
LANDLORD'S REASONABLE CONTROL OTHER THAN LANDLORD'S LACK OF FUNDS OR INABILITY
TO OBTAIN FINANCING FOR REASONS OTHER THAN A DEFAULT OF TENANT.
LANDLORD AGREES
TO GIVE TENANT NOTICE OF THE CAUSE AND COMMENCEMENT TIME OF A FORCE MAJEURE
DELAY PROMPTLY UPON LEARNING OF THE EXISTENCE OF A FORCE MAJEURE CONDITION AND,
WHEN KNOWN, THE DURATION OF SUCH FORCE MAJEURE DELAY.
(C)
IF LANDLORD'S OBLIGATIONS TO IMPROVE THE PREMISES AND BUILDING ARE
SUBSTANTIALLY COMPLETED PRIOR TO THE COMMENCEMENT DATE AND LANDLORD AND TENANT
AGREE, WITHOUT IN ANY WAY BEING BOUND TO SO AGREE, TENANT MAY TAKE POSSESSION OF
THE PREMISES OR ANY PART THEREOF PRIOR TO THE COMMENCEMENT DATE.
IN SUCH EVENT,
ALL OF THE COVENANTS AND CONDITIONS OF THIS LEASE SHALL BE BINDING UPON THE
PARTIES HERETO WITH RESPECT TO SUCH WHOLE OR
2
PART OF THE PREMISES AS IF THE COMMENCEMENT DATE HAD BEEN FIXED AS THE DATE WHEN
TENANT TOOK POSSESSION OF SUCH WHOLE OR PART OF THE PREMISES AND TENANT SHALL
PAY RENT FOR THE PERIOD OF SUCH OCCUPANCY PRIOR TO THE COMMENCEMENT DATE AT THE
RATE OF BOTH THE ANNUAL BASE RENT SET FORTH IN ARTICLE 3 HEREOF AND THE
ADDITIONAL