Term and Possession
Section 3.1.Term of Lease. The Term of this Lease shall commence on the date (the “Commencement Date”) which is the first to occur of (i) the first day following the end of the Tenant’s Work Period, provided that the Commencement Date Conditions set forth in Exhibit C have been satisfied; or (ii) the date Tenant initially opens the Premises for business to the general public. Upon substantial completion of Tenant’s Work pursuant to the Work Letter, Tenant’s architect (the “Tenant’s Architect”) will measure the Floor Area of the Building, and certify the Floor Area to Landlord and Tenant. In no event shall the actual size of the Building be less than ninety-nine percent (99%) or more than one hundred one percent (101%) of 65,219 square feet of Floor Area. Tenant shall not be deemed to have initially opened the Premises for business to the general public during any period during which Tenant opens for business with a special preview on an invitation-only basis or with other special activities, which do not provide theater revenues to Tenant. The Term shall expire on the day immediately preceding the fifteenth (15th) Anniversary of the Commencement Date, subject to extension pursuant to Section 3.3 (in which case the Term shall expire on the last day of the Extension Term, subject, if applicable, to further extension pursuant to Section 3.3) and, if applicable, subject to extension pursuant to Section 3.4. Within ten (10) days after the Commencement Date, Tenant and Landlord shall execute a supplement hereto, in form and substance satisfactory to Landlord and Tenant acting reasonably and in good faith, setting forth the Commencement Date and the scheduled termination date of the Initial Term, the Floor Area of the Building, the initial Base Rent and the initial Percentage Rent Breakpoint, but the failure to do so shall not affect the actual Commencement Date, the Floor Area of the Building, the initial Base Rent or initial Percentage Rent Breakpoint.
(a)Early Opening. Tenant, in its sole discretion, may elect to open and operate its business in the Premises prior to the satisfaction of the Commencement Date Conditions, provided, however, Tenant shall not open for business in the Premises prior to such time as it has received a Certificate of Occupancy as required by the applicable governmental authority for the Premises. Tenant’s election to open and operate its business in the Premises prior to the satisfaction of the Commencement Date Conditions shall not constitute Tenant’s waiver of any of the Commencement Date Conditions and Landlord shall continue to use its good faith commercially reasonable efforts to satisfy all of the Commencement Date Conditions as soon as possible after the Commencement Date. If Tenant elects to open for business in the Premises prior to the satisfaction of the Commencement Date Conditions, then in lieu of the Base Rent otherwise payable by Tenant hereunder, Tenant shall pay Alternate Rent to Landlord in accordance with Section 4.6 below.
(b)Termination Right. If Landlord fails to satisfy Tenant’s Work Commencement Conditions on or before the date which is two (2) years after the Effective Date (subject to day for day extension for delays caused by Tenant), or if the Commencement Date Conditions are not satisfied by Landlord within sixty (60) days after the expiration of Tenant’s Work Period (and Tenant has not elected to open and operate its business in the Premises), then in either such event, provided that Tenant is not in default under this Lease, Tenant may elect to terminate this Lease by sending written notice to Landlord at any time thereafter but prior to the satisfaction of Tenant’s Work Commencement Conditions or the Commencement Date Conditions, as the case may be. Such notice shall specify the effective date of the termination, which shall be not less than fifteen (15) days after the date of the notice, but shall be void and ineffective if Landlord satisfies the applicable conditions prior to the specified effective date of the notice. If Tenant so terminates this Lease, then within ten (10) days after Tenant’s written demand, Landlord shall reimburse Tenant for all out-of-pocket costs and expenses incurred by Tenant in pursuance of this Lease and in the performance of Tenant’s undertakings hereunder, including (without limitation) the Unamortized Tenant Costs and all legal fees, fees and expenses of Tenant’s architects and design professionals and amounts paid by Tenant to Landlord hereunder. Landlord’s reimbursement obligation shall survive the termination of this Lease and shall not be subject to any provisions hereof otherwise purporting to limit Landlord’s liability or the recourse that may be had against Landlord.
Section 3.2.Initial Occupancy. Although the terms and provisions of this Lease to be performed by Tenant shall be effective from and after the Effective Date (except for Tenant’s insurance obligations hereunder, which shall be effective from the date Tenant takes possession of the Premises or the first day of Tenant’s Work Period, whichever occurs first), no Rent or other charges shall be payable by Tenant with respect to any period prior to the Commencement Date.