AS OF THE DATE
WHICH IS REASONABLY DETERMINED BY LANDLORD TO BE THE DATE TENANT SHOULD HAVE
COMPLETED REPAIRS TO THE PREMISES ASSUMING TENANT USED REASONABLE DUE DILIGENCE
IN CONNECTION THEREWITH.
11.2
LANDLORD'S OPTION TO REPAIR.
NOTWITHSTANDING THE TERMS OF
SECTION 11.1 OF THIS LEASE, LANDLORD MAY ELECT NOT TO REBUILD AND/OR RESTORE THE
PREMISES, BUILDING AND/OR PROJECT,
36
*** CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND FILED
SEPARATELY WITH THE COMMISSION.
AND INSTEAD TERMINATE THIS LEASE, BY NOTIFYING TENANT IN WRITING OF SUCH
TERMINATION WITHIN NINETY (90) DAYS AFTER THE DATE OF DISCOVERY OF THE DAMAGE,
SUCH NOTICE TO INCLUDE A TERMINATION DATE GIVING TENANT NINETY (90) DAYS TO
VACATE THE PREMISES, BUT LANDLORD MAY SO ELECT ONLY IF THE BUILDING OR PROJECT
SHALL BE DAMAGED BY FIRE OR OTHER CASUALTY OR CAUSE, WHETHER OR NOT THE PREMISES
ARE AFFECTED, AND ONE OR MORE OF THE FOLLOWING CONDITIONS IS PRESENT: (I) IN
LANDLORD'S REASONABLE JUDGMENT, REPAIRS CANNOT REASONABLY BE COMPLETED WITHIN
TWO HUNDRED SEVENTY (270) DAYS AFTER THE DATE OF DISCOVERY OF THE DAMAGE (WHEN
SUCH REPAIRS ARE MADE WITHOUT THE PAYMENT OF OVERTIME OR OTHER PREMIUMS);
(II) THE HOLDER OF ANY MORTGAGE ON THE BUILDING OR PROJECT OR GROUND LESSOR WITH
RESPECT TO THE BUILDING OR PROJECT SHALL REQUIRE THAT THE INSURANCE PROCEEDS OR
ANY PORTION THEREOF BE USED TO RETIRE THE MORTGAGE DEBT, OR SHALL TERMINATE THE
GROUND LEASE, AS THE CASE MAY BE; (III) THE DAMAGE IS NOT FULLY COVERED BY
LANDLORD'S INSURANCE POLICIES; (IV) LANDLORD DECIDES TO REBUILD THE BUILDING OR
COMMON AREAS SO THAT THEY WILL BE SUBSTANTIALLY DIFFERENT STRUCTURALLY OR
ARCHITECTURALLY; OR (V) THE DAMAGE OCCURS DURING THE LAST TWELVE (12) MONTHS OF
THE LEASE TERM.
NOTWITHSTANDING THE FOREGOING, IF LANDLORD ELECTS TO TERMINATE
THIS LEASE PURSUANT TO ITEM (I), ABOVE, THEN TENANT MAY, [***]
IF LANDLORD DOES
NOT ELECT TO TERMINATE THIS LEASE PURSUANT TO LANDLORD'S TERMINATION RIGHT AS
PROVIDED ABOVE, AND THE REPAIRS CANNOT, IN THE REASONABLE OPINION OF LANDLORD,
BE COMPLETED WITHIN TWO HUNDRED SEVENTY (270) DAYS AFTER BEING COMMENCED, TENANT
MAY ELECT NOT LATER THAN NINETY (90) DAYS AFTER THE DATE OF TENANT'S RECEIPT OF
LANDLORD'S REASONABLE ESTIMATE, IN WRITING, OF THE TIME REQUIRED TO EFFECTUATE
SUCH REPAIRS, TO TERMINATE THIS LEASE BY WRITTEN NOTICE TO LANDLORD EFFECTIVE AS
OF THE DATE SPECIFIED IN THE NOTICE, WHICH DATE SHALL NOT BE LESS THAN THIRTY
(30) DAYS NOR MORE THAN SIXTY (60) DAYS AFTER THE DATE SUCH NOTICE IS GIVEN BY
TENANT.
FURTHERMORE, IF NEITHER LANDLORD NOR TENANT HAS TERMINATED THIS LEASE,
AND THE REPAIRS ARE NOT ACTUALLY COMPLETED WITHIN SUCH 270-DAY PERIOD, TENANT
SHALL HAVE THE RIGHT TO TERMINATE THIS LEASE DURING THE FIRST FIVE (5) BUSINESS
DAYS OF EACH CALENDAR MONTH FOLLOWING THE END OF SUCH PERIOD UNTIL SUCH TIME AS
THE REPAIRS ARE COMPLETE, BY NOTICE TO LANDLORD (THE "DAMAGE TERMINATION
NOTICE"), EFFECTIVE AS OF A DATE SET FORTH IN THE DAMAGE TERMINATION NOTICE (THE
"DAMAGE TERMINATION DATE"), WHICH DAMAGE TERMINATION DATE SHALL NOT