Adjustment of Commencement Date; Possession. A. If the Lease Term, Commencement Date and Termination Date are to be determined in accordance with Section 1.L.2. above, the Lease Term shall not commence until the later to occur of the Target Commencement Date and the date that Landlord has substantially completed the work to be performed by Landlord as set forth in the Work Letter Agreement attached hereto as Exhibit D (“Landlord’s Work”); provided, however, that if Landlord shall be delayed in substantially completing the Landlord Work as a result of the occurrence of any of the following (a “Delay”): (1) Tenant’s failure to furnish information in accordance with the Work Letter Agreement or to respond to any request by Landlord for any approval of information within any time period prescribed, or if no time period is prescribed, then within two (2) Business Days of such request; or (2) Tenant’s insistence on materials, finishes or installations that have long lead times after having first been informed by Landlord that such materials, finishes or installations will cause a Delay; or (3) Changes in any plans and specifications requested by Tenant; or (4) The performance or nonperformance by a person or entity employed by on or behalf of Tenant in the completion of any work in the Premises (all such work and such persons or entities being subject to prior approval of Landlord); or (5) Any request by Tenant that Landlord delay the completion of any of the Landlord’s Work; or (6) Any breach or default by Tenant in the performance of Tenant’s obligations under this Lease; or (7) Any delay resulting from Tenant’s having taken possession of the Premises for any reason prior to substantial completion of the Landlord’s Work; or (8) Any other delay chargeable to Tenant, its agents, employees or independent contractors; then, for purposes of determining the Commencement Date, the date of substantial completion shall be deemed to be the day that said Landlord’s Work would have been substantially completed absent any such Delay(s). The Landlord’s Work shall be deemed to be substantially completed on the date that Landlord’s Work has been performed (or would have been performed absent any Delay(s), other than any details of construction, mechanical adjustment or any other matter, the noncompletion of which does not materially interfere with Tenant’s use of the Premises). The adjustment of the Commencement Date and, accordingly, the postponement of Tenant’s obligation to pay Base Rent and other sums due hereunder shall be Tenant’s sole remedy and shall constitute full settlement of all claims that Tenant might otherwise have against Landlord by reason of the Premises not being ready for occupancy by Tenant on the Target Commencement Date. Promptly after the determination of the Commencement Date, Landlord and Tenant shall enter into a letter agreement (the “Commencement Letter”) on the form attached hereto as Exhibit F setting forth the Commencement Date, the Termination Date and any other dates that are affected by the adjustment of the Commencement Date. If this Lease requires Landlord to perform Landlord’s Work in the Premises, the Commencement Letter shall identify any minor incomplete items of the Landlord’s Work as reasonably determined by Landlord’s architect (the “Punchlist Items”), which Punchlist Items Landlord shall promptly remedy. Tenant, within five (5) days after receipt thereof from Landlord, shall execute the Commencement Letter and return the same to Landlord. Notwithstanding anything herein to the contrary, Landlord may elect, by written notice to Tenant, not to adjust the Commencement Date as provided above if such adjustment would cause Landlord to be in violation of the existing rights granted to any other tenant of the Building. If Landlord elects not to adjust the Commencement Date, the Commencement Date shall be the Target Commencement Date, provided that Base Rent and Additional Rent shall not commence until the date that Landlord’s Work has been substantially completed (or would have been substantially completed absent any Delays). Notwithstanding the foregoing, if Landlord and Tenant have approved Plans (as defined in the Work Letter) and such Plans have been submitted to the City of Irvine for building permits on or before November 30, 2003, but Tenant is unable to occupy the Premises on or before August 1, 2004, (the “Outside Date”) because the City of Irvine refuses or is prevented from issuing the permits required to construct the Landlord’s Work reasonably consistent with the Plans, then, provided that Tenant is not then in default of its obligations under this Lease after expiration of the applicable cure period, Tenant shall have the right to terminate this Lease by giving Landlord written notice to that effect after the Outside Date but prior to August 15, 2004. B. By taking possession of the Premises, Tenant is deemed to have accepted the Premises and agreed that the Premises is in good order and satisfactory condition, with no representation or warranty by Landlord as to the condition of the Premises or the Building or suitability thereof for Tenant’s use, except as otherwise provided herein or in the Work Letter, including, but not limited to, the Punchlist Items and Landlord’s ADA compliance obligations set forth in Section 21 below. C. Notwithstanding anything to the contrary contained in this Lease, Landlord shall not be obligated to tender possession of any portion of the Premises or other space leased by Tenant from time to time hereunder that, on the date possession is to be delivered, is occupied by a tenant or other occupant or that is subject to the rights of any other tenant or occupant, nor shall Landlord have any other obligations to Tenant under this Lease with respect to such space until the date Landlord: (1) recaptures such space from such existing tenant or occupant; and (2) regains the legal right to possession thereof. This Lease shall not be affected by any such failure to deliver possession and Tenant shall have no claim for damages against Landlord as a result thereof, all of which are hereby waived and released by Tenant. If Landlord is prevented from delivering possession of the Premises to Tenant due to the holding over in possession of the Premises by a tenant or other occupant thereof, Landlord shall use reasonable efforts to regain possession of the Premises in order to deliver the same to Tenant. If the Lease Term is to be determined pursuant to Section 1.L.(1) hereof, the Commencement Date shall be postponed until the date Landlord delivers possession of the Premises to Tenant, in which event the Termination Date shall, at the option of Landlord, correspondingly be postponed on a per diem basis. If the Lease Term is to be determined pursuant to Section 1.L.(2), the Commencement Date and Termination Date shall be determined as provided in Section 3.A. above. D. So long as Tenant does not interfere with the completion of Landlord’s Work (as defined in Exhibit D), Landlord shall use commercially reasonable efforts to give Tenant access to the Premises for not less than fifteen (15) days prior to substantial completion of Landlord’s Work (the “Early Access Period”) for purposes of installing Tenant’s furniture, fixtures and equipment, including, without limitation, Tenant’s telephone and data cabling (“Tenant’s Work”). Landlord will provide Tenant with reasonable prior notice as to when the Early Access Period will commence based upon a schedule to be reasonably established by Landlord’s contractor. Tenant’s Work shall be performed by Tenant at Tenant’s sole cost and expense. Tenant agrees to provide Landlord with prior notice of any such intended early access and shall fully cooperate with Landlord and Landlord’s contractor during the Early Access Period so as not to interfere with the completion of Landlord’s Work pursuant to Exhibit D. The Early Access Period shall be subject to all the terms and conditions of this Lease, except that Tenant shall not be required to pay Rent during such period.
Appears in 1 contract
Adjustment of Commencement Date; Possession. A. If the Lease Term, Commencement Date and Termination Date are to be determined in accordance with Section 1.L.2. 1.F.
(1) above, the Lease Term shall not commence until the later to occur of the Target Commencement Date and the date that Landlord has substantially completed the work to be performed by Landlord as set forth in the Work Letter Agreement attached hereto as Exhibit D EXHIBIT E (“Landlord’s Work”"LANDLORD'S WORK"); provided, however, that if Landlord shall be delayed in substantially completing the Landlord Work as a result of the occurrence of any of the following (a “Delay”"DELAY"):
(1) Tenant’s 's failure to furnish information in accordance with the Work Letter Agreement or to respond to any request by Landlord for any approval of information within any time period prescribed, or if no time period is prescribed, then within two THREE (23) Business Days of such request; or
(2) Tenant’s 's insistence on materials, finishes or installations that have long lead times after having first been informed by Landlord Landlord, IN WRITING, that such materials, finishes or installations will cause a Delay; or
(3) Changes ANY MATERIAL changes in any plans and specifications requested by Tenant; or
(4) The performance or nonperformance by a person or entity employed by on or behalf of Tenant in the completion of any work in the Premises (all such work and such persons or entities being subject to prior approval of Landlord); or
(5) Any request by Tenant that Landlord delay the completion of any of the Landlord’s 's Work; or
(6) Any breach or default by Tenant in the performance of Tenant’s 's obligations under this Lease; or
(7) Any delay resulting from Tenant’s 's having taken possession of the Premises for any reason prior to substantial completion of the Landlord’s 's Work; or
(8) Any other delay chargeable to Tenant, its agents, employees or independent contractors; then, for purposes of determining the Commencement Date, the date of substantial completion shall be deemed to be the day that said Landlord’s 's Work would have been substantially completed absent any such Delay(s). The Landlord’s 's Work shall be deemed to be substantially completed on the date that Landlord’s 's Work has been performed (or would have been performed absent any Delay(s), other than any details of construction, mechanical adjustment or any other matter, the noncompletion of which does not materially interfere with Tenant’s use of the Premises). The adjustment of the Commencement Date and, accordingly, the postponement of Tenant’s obligation to pay Base Rent and other sums due hereunder shall be Tenant’s sole remedy and shall constitute full settlement of all claims that Tenant might otherwise have against Landlord by reason of the Premises not being ready for occupancy by Tenant on the Target Commencement Date. Promptly after the determination of the Commencement Date, Landlord and Tenant shall enter into a letter agreement (the “Commencement Letter”) on the form attached hereto as Exhibit F setting forth the Commencement Date, the Termination Date and any other dates that are affected by the adjustment of the Commencement Date. If this Lease requires Landlord to perform Landlord’s Work in the Premises, the Commencement Letter shall identify any minor incomplete items of the Landlord’s Work as reasonably determined by Landlord’s architect (the “Punchlist Items”), which Punchlist Items Landlord shall promptly remedy. Tenant, within five (5) days after receipt thereof from Landlord, shall execute the Commencement Letter and return the same to Landlord. Notwithstanding anything herein to the contrary, Landlord may elect, by written notice to Tenant, not to adjust the Commencement Date as provided above if such adjustment would cause Landlord to be in violation of the existing rights granted to any other tenant of the Building. If Landlord elects not to adjust the Commencement Date, the Commencement Date shall be the Target Commencement Date, provided that Base Rent and Additional Rent shall not commence until the date that Landlord’s Work has been substantially completed (or would have been substantially completed absent any Delays). Notwithstanding the foregoing, if Landlord and Tenant have approved Plans (as defined in the Work Letter) and such Plans have been submitted to the City of Irvine for building permits on or before November 30, 2003, but Tenant is unable to occupy the Premises on or before August 1, 2004, (the “Outside Date”) because the City of Irvine refuses or is prevented from issuing the permits required to construct the Landlord’s Work reasonably consistent with the Plans, then, provided that Tenant is not then in default of its obligations under this Lease after expiration of the applicable cure period, Tenant shall have the right to terminate this Lease by giving Landlord written notice to that effect after the Outside Date but prior to August 15, 2004.
B. By taking possession of the Premises, Tenant is deemed to have accepted the Premises and agreed that the Premises is in good order and satisfactory condition, with no representation or warranty by Landlord as to the condition of the Premises or the Building or suitability thereof for Tenant’s use, except as otherwise provided herein or in the Work Letter, including, but not limited to, the Punchlist Items and Landlord’s ADA compliance obligations set forth in Section 21 below.
C. Notwithstanding anything to the contrary contained in this Lease, Landlord shall not be obligated to tender possession of any portion of the Premises or other space leased by Tenant from time to time hereunder that, on the date possession is to be delivered, is occupied by a tenant or other occupant or that is subject to the rights of any other tenant or occupant, nor shall Landlord have any other obligations to Tenant under this Lease with respect to such space until the date Landlord: (1) recaptures such space from such existing tenant or occupant; and (2) regains the legal right to possession thereof. This Lease shall not be affected by any such failure to deliver possession and Tenant shall have no claim for damages against Landlord as a result thereof, all of which are hereby waived and released by Tenant. If Landlord is prevented from delivering possession of the Premises to Tenant due to the holding over in possession of the Premises by a tenant or other occupant thereof, Landlord shall use reasonable efforts to regain possession of the Premises in order to deliver the same to Tenant. If the Lease Term is to be determined pursuant to Section 1.L.(1) hereof, the Commencement Date shall be postponed until the date Landlord delivers possession of the Premises to Tenant, in which event the Termination Date shall, at the option of Landlord, correspondingly be postponed on a per diem basis. If the Lease Term is to be determined pursuant to Section 1.L.(2), the Commencement Date and Termination Date shall be determined as provided in Section 3.A. above.
D. So long as Tenant does not interfere with the completion of Landlord’s Work (as defined in Exhibit D), Landlord shall use commercially reasonable efforts to give Tenant access to the Premises for not less than fifteen (15) days prior to substantial completion of Landlord’s Work (the “Early Access Period”) for purposes of installing Tenant’s furniture, fixtures and equipment, including, without limitation, Tenant’s telephone and data cabling (“Tenant’s Work”). Landlord will provide Tenant with reasonable prior notice as to when the Early Access Period will commence based upon a schedule to be reasonably established by Landlord’s contractor. Tenant’s Work shall be performed by Tenant at Tenant’s sole cost and expense. Tenant agrees to provide Landlord with prior notice of any such intended early access and shall fully cooperate with Landlord and Landlord’s contractor during the Early Access Period so as not to interfere with the completion of Landlord’s Work pursuant to Exhibit D. The Early Access Period shall be subject to all the terms and conditions of this Lease, except that Tenant shall not be required to pay Rent during such period.other
Appears in 1 contract
Adjustment of Commencement Date; Possession. A. If Landlord is performing Landlord Work in the Lease Term, Commencement Date and Termination Date are to be determined in accordance with Section 1.L.2. abovePremises, the Lease Term shall not commence until the later to occur of the Target Commencement Date - and the date that Landlord has substantially completed the work to be performed by Landlord as set forth in the Work Letter Agreement attached hereto as Exhibit D (“Landlord’s Work”); provided, however, that if Landlord shall be delayed in substantially completing the Landlord Work as a result of the occurrence of any of the following (a “"Delay”"):
(1) . Tenant’s 's failure to furnish information in accordance with the Work Letter Agreement or to respond to any request by Landlord for any approval of or information within any time period prescribed, or if no time period is prescribed, then within two (2) Business Days days of such request; or
(2) . Tenant’s 's insistence on art materials, finishes or installations that have long lead times after having first been informed by Landlord that such materials, finishes or installations will cause a Delay; : or
(3) . Changes in any plans and specifications requested by Tenantspecifications; or
(4) . The performance or nonperformance by a person or entity employed by on or behalf of Tenant in the completion of any work in the Premises (all such work and such persons or entities entitles being subject to the prior approval of Landlord); or
(5) . Any request by Tenant that Landlord delay the completion of any of the Landlord’s Landlord Work; or
(6) . Any breach or default by Tenant in the performance of Tenant’s 's obligations under this Lease; or
(7) . Any delay resulting from Tenant’s 's having taken possession of the Premises for any reason prior to substantial completion of the Landlord’s Landlord Work; or
(8) 8. Any other delay chargeable to Tenanttenant, its agents, employees or independent contractors; or,
9. Any other cause beyond Landlord's control; then, for purposes of determining the Commencement Date, . the date of substantial completion shall be deemed to be the day that said Landlord’s Landlord Work would have been substantially completed absent any such Delay(s). The Landlord’s Landlord Work shall be deemed to be substantially completed on the date that Landlord reasonably determines that all Landlord’s Work 's work has been performed (or would have been performed absent any Delay(sDelays), other than any details of construction, mechanical adjustment or any other matter, the noncompletion of which does not materially interfere with Tenant’s 's use of the Premises). The adjustment of the Commencement Date and, accordingly, the postponement of Tenant’s 's obligation to pay Base Rent and other sums due hereunder shall be Tenant’s 's sole remedy and shall constitute full settlement of all claims that Tenant might otherwise have against Landlord by reason of the Premises not being ready for occupancy by Tenant on the Target Commencement Date. Landlord's determination of the Commencement Date shall be final and binding on alt pathos for all purposes, including, without limitation, determination of the date of commencement of the Lease Term and of Tenant's obligation to pay Rent hereunder. Promptly after the determination of the Commencement DateDate by Landlord, Landlord and Tenant shall enter into prepare a letter agreement (the “"Commencement Letter”") on the form attached hereto as Exhibit F setting forth the Commencement Date, the Termination Date and any other dates that are affected by the adjustment of the Commencement Date. If this Lease requires Landlord to perform Landlord’s Work in the Premises, the Commencement Letter shall identify any minor incomplete items of the Landlord’s Work as reasonably determined by Landlord’s architect (the “Punchlist Items”), which Punchlist Items Landlord shall promptly remedy. Tenant, within five (5) days after alter receipt thereof from Landlord, shall execute the Commencement Letter and return the same came to Landlord. Notwithstanding anything herein to the contrary, Landlord in its sole discretion, may elect, by written notice to Tenant, not to adjust the Commencement Date as provided above if such adjustment would cause Landlord to be above, in violation of the existing rights granted to any other tenant of the Building. If Landlord elects not to adjust the Commencement Date, which case the Commencement Date shall be the Target Commencement Date, provided that Base Rent and Additional Rent shall not commence until the date that Landlord’s Landlord Work has been substantially completed (or would have been substantially completed absent any Delays). Notwithstanding the foregoing, if Landlord and Tenant have approved Plans (as defined in the Work Letter) and such Plans have been submitted to the City of Irvine for building permits on or before November 30, 2003, but Tenant is unable to occupy the Premises on or before August 1, 2004, (the “Outside Date”) because the City of Irvine refuses or is prevented from issuing the permits required to construct the Landlord’s Work reasonably consistent with the Plans, then, provided that Tenant is not then in default of its obligations under this Lease after expiration of the applicable cure period, Tenant shall have the right to terminate this Lease by giving Landlord written notice to that effect after the Outside Date but prior to August 15, 2004.
B. By taking possession of the Premises, Tenant is deemed to have have:
1. accepted the Premises and agreed that the Premises is in good order and satisfactory condition, with no representation or warranty by Landlord as to the condition or suitability of the Premises or of the Building for Tenant's use thereof; and
2. agreed that Landlord has no obligation to clean, decorate, after, (remodel, improve or repair the Premises or the Building or suitability thereof for Tenant’s use, except as otherwise provided herein or in the Work Letter, including, but not limited to, the Punchlist Items and Landlord’s ADA compliance obligations unless said obligation is Specifically set forth in Section 21 below.this Lease,
C. Notwithstanding anything to the contrary contained in this the Lease, Landlord shall not be obligated to tender possession of any portion of the Premises or other space leased by Tenant from time to time hereunder that, on the date possession that is to be delivered, is currently occupied by a tenant or other occupant or that is subject to the rights of any other tenant or occupant, nor shall Landlord have any other obligations to Tenant under this Lease with respect to such space until the date Landlord: (1) . recaptures such space from such existing tenant or occupant; and (2) . regains the legal right to possession thereof. This Lease shall not be affected by any such failure to deliver deliver. possession and Tenant shall have no claim for damages against Landlord as a result thereof, all of which are hereby waived and released by Tenant. If Landlord is prevented from delivering possession of the Premises to Tenant due to the holding over in possession of the Premises by a tenant or other occupant thereof, Landlord shall use reasonable efforts to regain possession of the Premises in order to deliver the same to Tenant. If the Lease Term is to be determined pursuant to Section 1.L.(1I.A.3.(a) hereof, the Commencement Date shall be postponed until the date Landlord delivers possession of the Premises to Tenant, in which event the Termination Date shall, at the option of Landlord, shall correspondingly be postponed on a per diem basis. If if the Lease Term is to be determined pursuant to Section 1.L.(2I.A.3.(b), the Commencement Date and Termination Date shall be determined as provided in Section 3.A. III.A. above, provided that Landlord's failure to deliver possession shall not be deemed to be a Delay by Tenant.
D. So long as If Tenant does not interfere with takes possession of the completion of Landlord’s Work (as defined in Exhibit D), Landlord shall use commercially reasonable efforts to give Tenant access Premises prior to the Premises Commencement Date for not less than fifteen (15) days prior to substantial completion of Landlord’s Work (the “Early Access Period”) for purposes of installing Tenant’s furniture, fixtures and equipment, including, without limitation, Tenant’s telephone and data cabling (“Tenant’s Work”). Landlord will provide Tenant with reasonable prior notice as to when the Early Access Period will commence based upon a schedule to be reasonably established by Landlord’s contractor. Tenant’s Work shall be performed by Tenant at Tenant’s sole cost and expense. Tenant agrees to provide Landlord with prior notice of any reason whatsoever such intended early access and shall fully cooperate with Landlord and Landlord’s contractor during the Early Access Period so as not to interfere with the completion of Landlord’s Work pursuant to Exhibit D. The Early Access Period possession shall be subject to all the terms and conditions of this Lease, except that the Lease and Tenant shall not be required pay Base Rental and Additional Base Rental to pay Rent during such periodLandlord on a per diem basis for each day of occupancy prior to the Commencement Date.
Appears in 1 contract
Adjustment of Commencement Date; Possession. A. If For purposes of determining the Lease Term, Commencement Date and Termination Date are pursuant to be determined in accordance with Section 1.L.2. Paragraph l.F above, the Lease Term shall not commence until the later to occur of the Target Commencement Date and upon the date that Landlord has substantially completed Substantially Completed (defined above) the work to be performed by Landlord as set forth in the Work Letter Agreement attached hereto as Exhibit D (“Landlord’s WorkWork Letter”); provided, however, that if Landlord shall be delayed in substantially completing the Landlord Work as a result of the occurrence of any of the following (a “Delay”):
(1) Tenant’s failure to furnish information in accordance with the Work Letter Agreement or to respond to any request by Landlord for any approval of information within any time period prescribed, or if no time period is prescribed, then within two (2) Business Days of such request; or
(2) Tenant’s insistence on or the availability of specialty equipment, materials, finishes or installations that have long lead times after having first been informed by Landlord that such materials, finishes or installations will cause a Delay; or
(3) Changes in any plans and specifications requested by Tenant; or
(4) The performance or nonperformance by a person or entity employed by on or behalf of Tenant in the completion of any work in the Premises (all such work and such persons or entities being subject to prior approval of Landlord and such work actually delays Landlord from completing Landlord’s Work); or
(5) Any request by Tenant that Landlord delay the completion of any of the Landlord’s Work; or
(6) Any breach or default by Tenant in the performance of Tenant’s obligations under this Lease; or
(7) Any actual delay resulting from Tenant’s having taken possession of the Premises for any reason prior to substantial completion Substantial Completion of the Landlord’s Work; or
(8) 7) Any other actual delay chargeable to of Landlord in completing Landlord’s Work caused by Tenant, its agents, employees or independent contractors; then, for purposes of determining the Commencement Date, the date of substantial completion Date shall be deemed to be the day that said Landlord’s Work would have been substantially completed absent any such Delay(s).
B. If Landlord fails to deliver possession of the Premises to Tenant on or before the Target Commencement Date, Landlord shall not be subject to any liability for its failure to do so. This failure shall not affect the validity of this Lease or the obligations of Tenant under it, but the Lease Term shall commence on the date on the actual date of Substantial Completion. The Lease Termination Date shall be extended for a like period plus any additional period required to make the Lease Termination Date the last day of the calendar month. Landlord shall use its commercially reasonable efforts, including litigation, to enforce its rights to possession of the Premises against any holdover tenant.
C. If Substantial Completion of Landlord’s Work and delivery of the Premises to Tenant have not occurred by November 1, 2011, as the same shall be deemed to be substantially completed on extended by reason of Tenant Delays (the date that Landlord’s Work has been performed (or would have been performed absent any Delay(s“Outside Date”), other than any details of construction, mechanical adjustment or any other matter, the noncompletion of which does not materially interfere with Tenant’s use of the Premises). The adjustment of the Commencement Date and, accordingly, the postponement of Tenant’s obligation to pay Base Rent and other sums due hereunder shall be Tenant’s sole remedy and shall constitute full settlement of all claims that Tenant might otherwise have against be to terminate this Lease by delivering a notice to Landlord by reason of (“Outside Date Termination Notice”) electing to terminate this Lease effective on the Premises not being ready for occupancy date Landlord’s receives the Outside Date Termination Notice (the “Outside Date Termination Date”). The Outside Date Termination Notice must be delivered by Tenant on to Landlord, if at all, no earlier than the Target Commencement Outside Date and no later than five (5) business days after the Outside Date. Promptly If Tenant delivers the Outside Date Termination Notice to Landlord, Landlord shall have the right to suspend the Outside Date Termination Date for a period ending thirty (30) days after the determination of original Outside Date Termination Date. In order to suspend the Commencement Outside Date Termination Date, Landlord and Tenant shall enter into a letter agreement (the “Commencement Letter”) on the form attached hereto as Exhibit F setting forth the Commencement Date, the Termination Date and any other dates that are affected by the adjustment of the Commencement Date. If this Lease requires Landlord must deliver to perform Landlord’s Work in the Premises, the Commencement Letter shall identify any minor incomplete items of the Landlord’s Work as reasonably determined by Landlord’s architect (the “Punchlist Items”), which Punchlist Items Landlord shall promptly remedy. Tenant, within five (5) business days after receipt thereof from Landlord, shall execute the Commencement Letter and return the same to Landlord. Notwithstanding anything herein to the contrary, Landlord may elect, by written notice to Tenant, not to adjust the Commencement Date as provided above if such adjustment would cause Landlord to be in violation of the existing rights granted to any other tenant Outside Date Termination Notice, a certificate of the Buildinggeneral contractor in charge of construction certifying that it is that contractor’s best good- faith judgment that Substantial Completion of Landlord’s Work will occur within thirty (30) days after the original Outside Date Termination Date. If Landlord elects not to adjust the Commencement Date, the Commencement Date shall be the Target Commencement Date, provided that Base Rent provides this certificate and Additional Rent shall not commence until the date that Substantial Completion of Landlord’s Work has been substantially completed occurs within such thirty (30) day suspension period, the Outside Date Termination Notice shall be of no further force or would have been substantially completed absent any Delays)effect and the Outside Date Termination Date shall no longer be applicable. Notwithstanding the foregoingIf, if Landlord and Tenant have approved Plans (as defined in the Work Letter) and such Plans have been submitted to the City however, Substantial Completion of Irvine for building permits on or before November 30, 2003, but Tenant is unable to occupy the Premises on or before August 1, 2004, (the “Outside Date”) because the City of Irvine refuses or is prevented from issuing the permits required to construct the Landlord’s Work reasonably consistent with the Plansdoes not occur within such thirty (30) day suspension period, then, provided that Tenant is not then in default of its obligations under this Lease after shall terminate as of the date of expiration of the applicable cure thirty (30) day period. If before the Outside Date Landlord determines that Substantial Completion of the Landlord’s Work will not occur by the Outside Date, Tenant Landlord shall have the right to terminate this Lease by giving Landlord deliver a written notice to that effect Tenant stating Landlord’s reasonable, good-faith estimate of the date by which Substantial Completion of the Landlord’s Work will occur. Tenant shall be required, within five (5) business days after receipt of such notice, to either deliver the Outside Date but prior to August 15, 2004.
B. By taking possession of the Premises, Tenant is deemed to have accepted the Premises and agreed Termination Notice (which will mean that the Premises is in good order and satisfactory condition, with no representation or warranty by Landlord as to the condition of the Premises or the Building or suitability thereof for Tenant’s use, except as otherwise provided herein or in the Work Letter, including, but not limited to, the Punchlist Items and Landlord’s ADA compliance obligations procedure set forth in Section 21 belowthe foregoing paragraph shall be followed) or agree to extend the Outside Date to the date stated in Landlord’s notice. Tenant’s failure to respond in writing within this five (5) business day period shall be considered to constitute Tenant’s agreement to extend the Outside Date to the date stated in Landlord’s notice. If the Outside Date is so extended, Landlord’s right to request Tenant to elect to either terminate or further extend the Outside Date shall remain and continue to remain, with each of the notice periods and response periods set forth above, until the Substantial Completion of the Landlord’s Work or until this Lease is terminated.
C. Notwithstanding anything to the contrary contained in this Lease, Landlord shall not be obligated to tender possession of any portion of the Premises or other space leased by D. If Tenant from time to time hereunder that, on the date possession is to be delivered, is occupied by a tenant or other occupant or that is subject to the rights of any other tenant or occupant, nor shall Landlord have any other obligations to Tenant under this Lease with respect to such space until the date Landlord: (1) recaptures such space from such existing tenant or occupant; and (2) regains the legal right to possession thereof. This Lease shall not be affected by any such failure to deliver possession and Tenant shall have no claim for damages against Landlord as a result thereof, all of which are hereby waived and released by Tenant. If Landlord is prevented from delivering takes possession of the Premises to Tenant due prior to the holding over in Commencement Date, such possession of the Premises by a tenant or other occupant thereof, Landlord shall use reasonable efforts to regain possession of the Premises in order to deliver the same to Tenant. If the Lease Term is to be determined pursuant to Section 1.L.(1) hereof, the Commencement Date shall be postponed until the date Landlord delivers possession of the Premises to Tenant, in which event the Termination Date shall, at the option of Landlord, correspondingly be postponed on a per diem basis. If the Lease Term is to be determined pursuant to Section 1.L.(2), the Commencement Date and Termination Date shall be determined as provided in Section 3.A. above.
D. So long as Tenant does not interfere with the completion of Landlord’s Work (as defined in Exhibit D), Landlord shall use commercially reasonable efforts to give Tenant access to the Premises for not less than fifteen (15) days prior to substantial completion of Landlord’s Work (the “Early Access Period”) for purposes of installing Tenant’s furniture, fixtures and equipment, including, without limitation, Tenant’s telephone and data cabling (“Tenant’s Work”). Landlord will provide Tenant with reasonable prior notice as to when the Early Access Period will commence based upon a schedule to be reasonably established by Landlord’s contractor. Tenant’s Work shall be performed by Tenant at Tenant’s sole cost and expense. Tenant agrees to provide Landlord with prior notice of any such intended early access and shall fully cooperate with Landlord and Landlord’s contractor during the Early Access Period so as not to interfere with the completion of Landlord’s Work pursuant to Exhibit D. The Early Access Period shall be subject to all the terms and conditions of this the Lease and Tenant shall pay Base Rent and Additional Rent to Landlord for each day of occupancy prior to the Commencement Date. Notwithstanding the foregoing, if Tenant, with Landlord’s prior approval, takes possession of the Premises prior to the Commencement Date for the sole purpose of performing any Landlord- approved improvements therein or installing furniture, equipment or other personal property of Tenant, such possession shall be subject to all of the terms and conditions of the Lease, except that Tenant shall not be required to pay Base Rent or Additional Rent with respect to the period of time prior to the Commencement Date during which Tenant performs such periodwork. Tenant shall, however, be liable for the cost of any services (e.g. electricity, HVAC, freight elevators) that are provided to Tenant or the Premises at Tenant’s request during the period of Tenant’s possession prior to the Commencement Date. Nothing herein shall be construed as granting Tenant the right to take possession of the Premises prior to the Commencement Date, whether for construction, fixturing or any other purpose, without the prior consent of Landlord.
Appears in 1 contract
Samples: Office Lease Agreement (Outdoor Channel Holdings Inc)
Adjustment of Commencement Date; Possession. A. If the Lease Term, Commencement Date and Termination Date are to be determined in accordance with Section 1.L.2I.F.2. above, the Lease Term shall not commence until the later to occur of the Target Commencement Date and the date that Landlord has substantially completed the work to be performed by Landlord as set forth in the Work Letter Agreement attached hereto as Exhibit D EXHIBIT E (“Landlord’s Work”"LANDLORD'S WORK"); provided, however, that if Landlord shall be delayed in substantially completing the Landlord Work as a result of the occurrence of any of the following (a “Delay”"DELAY"):
(1) Tenant’s 's failure to furnish information in accordance with the Work Letter Agreement or to respond to any request by Landlord for any approval of information within any time period prescribed, or if no time period is prescribed, then within two (2) Business Days of such request; or
(2) Tenant’s 's insistence on materials, finishes or installations that have long lead times after having first been informed by Landlord that such materials, finishes or installations will cause a Delay; or
(3) Changes in any plans and specifications requested by Tenant; or
(4) The performance or nonperformance by a person or entity employed by on or behalf of Tenant in the completion of any work in the Premises (all such work and such persons or entities being subject to prior approval of Landlord); or
(5) Any request by Tenant that Landlord delay the completion of any of the Landlord’s 's Work; or
(6) Any breach or default by Tenant in the performance of Tenant’s 's obligations under this Lease; or
(7) Any delay resulting from Tenant’s 's having taken possession of the Premises for any reason prior to substantial completion of the Landlord’s 's Work; or
(8) Any other delay chargeable to Tenant, its agents, employees or independent contractors; then, for purposes of determining the Commencement Date, the date of substantial completion shall be deemed to be the day that said Landlord’s 's Work would have been substantially completed absent any such Delay(s). The Landlord’s 's Work shall be deemed to be substantially completed on the date that Landlord’s 's Work has been performed (or would have been performed absent any Delay(s), other than any details of construction, mechanical adjustment or any other matter, the noncompletion of which does not materially interfere with Tenant’s 's use of the Premises). The adjustment of the Commencement Date and, accordingly, the postponement of Tenant’s 's obligation to pay Base Rent and other sums due hereunder shall be Tenant’s 's sole remedy and shall constitute full settlement of all claims that Tenant might otherwise have against Landlord by reason of the Premises not being ready for occupancy by Tenant on the Target Commencement Date. Promptly after the determination of the Commencement Date, Landlord and Tenant shall enter into a letter agreement (the “Commencement Letter”"COMMENCEMENT LETTER") on the form attached hereto as Exhibit F EXHIBIT G setting forth the Commencement Date, the Termination Date and any other dates that are affected by the adjustment of the Commencement Date. If this Lease requires Landlord to perform Landlord’s 's Work in the Premises, the Commencement Letter shall identify identity any minor incomplete items of the Landlord’s 's Work as reasonably determined by Landlord’s 's architect (the “Punchlist Items”"PUNCHLIST ITEMS"), which Punchlist Items Landlord shall promptly remedy. Tenant, within five (5) days after receipt thereof from Landlord, shall execute the Commencement Letter and return the same to Landlord. Notwithstanding anything herein to the contrary, Landlord may elect, by written notice to Tenant, not to adjust the Commencement Date as provided above if such adjustment would cause Landlord to be in violation of the existing rights granted to any other tenant of the Building. If Landlord elects not to adjust the Commencement Date, the Commencement Date shall be the Target Commencement Date, provided that Base Rent and Additional Rent shall not commence until the date that Landlord’s Work has been substantially completed (or would have been substantially completed absent any Delays). Notwithstanding the foregoing, if Landlord and Tenant have approved Plans (as defined in the Work Letter) and such Plans have been submitted to the City of Irvine for building permits on or before November 30, 2003, but Tenant is unable to occupy the Premises on or before August 1, 2004, (the “Outside Date”) because the City of Irvine refuses or is prevented from issuing the permits required to construct the Landlord’s Work reasonably consistent with the Plans, then, provided that Tenant is not then in default of its obligations under this Lease after expiration of the applicable cure period, Tenant shall have the right to terminate this Lease by giving Landlord written notice to that effect after the Outside Date but prior to August 15, 2004.
B. By taking possession of the Premises, Tenant is deemed to have accepted the Premises and agreed that the Premises is in good order and satisfactory condition, with no representation or warranty by Landlord as to the condition of the Premises or the Building or suitability thereof for Tenant’s use, except as otherwise provided herein or in the Work Letter, including, but not limited to, the Punchlist Items and Landlord’s ADA compliance obligations set forth in Section 21 below.
C. Notwithstanding anything to the contrary contained in this Lease, Landlord shall not be obligated to tender possession of any portion of the Premises or other space leased by Tenant from time to time hereunder that, on the date possession is to be delivered, is occupied by a tenant or other occupant or that is subject to the rights of any other tenant or occupant, nor shall Landlord have any other obligations to Tenant under this Lease with respect to such space until the date Landlord: (1) recaptures such space from such existing tenant or occupant; and (2) regains the legal right to possession thereof. This Lease shall not be affected by any such failure to deliver possession and Tenant shall have no claim for damages against Landlord as a result thereof, all of which are hereby waived and released by Tenant. If Landlord is prevented from delivering possession of the Premises to Tenant due to the holding over in possession of the Premises by a tenant or other occupant thereof, Landlord shall use reasonable efforts to regain possession of the Premises in order to deliver the same to Tenant. If the Lease Term is to be determined pursuant to Section 1.L.(1) hereof, the Commencement Date shall be postponed until the date Landlord delivers possession of the Premises to Tenant, in which event the Termination Date shall, at the option of Landlord, correspondingly be postponed on a per diem basis. If the Lease Term is to be determined pursuant to Section 1.L.(2), the Commencement Date and Termination Date shall be determined as provided in Section 3.A. above.
D. So long as Tenant does not interfere with the completion of Landlord’s Work (as defined in Exhibit D), Landlord shall use commercially reasonable efforts to give Tenant access to the Premises for not less than fifteen (15) days prior to substantial completion of Landlord’s Work (the “Early Access Period”) for purposes of installing Tenant’s furniture, fixtures and equipment, including, without limitation, Tenant’s telephone and data cabling (“Tenant’s Work”). Landlord will provide Tenant with reasonable prior notice as to when the Early Access Period will commence based upon a schedule to be reasonably established by Landlord’s contractor. Tenant’s Work shall be performed by Tenant at Tenant’s sole cost and expense. Tenant agrees to provide Landlord with prior notice of any such intended early access and shall fully cooperate with Landlord and Landlord’s contractor during the Early Access Period so as not to interfere with the completion of Landlord’s Work pursuant to Exhibit D. The Early Access Period shall be subject to all the terms and conditions of this Lease, except that Tenant shall not be required to pay Rent during such period.Commencement
Appears in 1 contract
Adjustment of Commencement Date; Possession. A. If the Lease Term, Commencement Date and Termination Date are to be determined Except as otherwise set forth in accordance with Section 1.L.2. aboveParagraph 1 of Exhibit D, the Lease Term shall not commence until the later to occur of the Target Commencement Date and the date that Landlord has substantially completed the work to be performed by Landlord as set forth in the Work Letter Agreement attached hereto as Exhibit D (“Landlord’s Work”); provided, however, that if Landlord shall be delayed in substantially completing the Landlord Work as a result of the occurrence of any of the following (a “Delay”):
(1) Tenant’s failure to furnish information in accordance with the Work Letter Agreement or to respond to any request by Landlord for any approval of information within any time period prescribed, or if no time period is prescribed, then within two (2) Business Days of such request; or
(2) Tenant’s failure to approve or disapprove (with stated reasons) the Proposed Architectural Plans (as defined in the Work Letter Agreement) within the required time, or Tenant’s proposing changes to the Architectural Plans (as defined in the Work Letter Agreement) that are inconsistent with or beyond the scope of work called for by the Space Plan (as defined in the Work Letter Agreement) or information theretofore furnished by Tenant to Landlord or the Architect (as defined in the Work Letter Agreement);
(3) Tenant’s insistence on materials, finishes or installations that have long lead times after having first been informed in writing by Landlord that such materials, finishes or installations will cause a DelayDelay and given an opportunity to make a substitution therefor; or
(34) Changes in any plans and specifications requested by Tenant; or
(45) Tenant’s disapproval of cost estimates for Landlord’s Work; or
(6) Tenant’s failure to respond within any of the time periods specified in the Work Letter Agreement, or Tenant’s failure to deposit (or delay in depositing) any sum Tenant is obligated to deposit with Landlord pursuant to the Work Letter Agreement within any of the time periods specified in the Work Letter Agreement; or
(7) The performance or nonperformance by a person or entity employed by on or behalf of Tenant in the completion of any work in the Premises (all such work and such persons or entities being subject to prior approval of Landlord); or
(5) 8) Any request by Tenant that Landlord delay the completion of any of the Landlord’s Work; : or
(69) Any breach or default by Tenant in the performance of Tenant’s obligations under this Lease; or
(710) Any delay resulting from Tenant’s having taken possession of the Premises for any reason prior to substantial completion of the Landlord’s Work; or
(8) 11) Any other delay chargeable to Tenant, its agents, employees or independent contractors; then, for purposes of determining the Commencement Date, the date of substantial completion shall be deemed to be the day that said Landlord’s Work would have been substantially completed absent any such Delay(s). The “Substantial completion” of Landlord’s Work shall will be deemed determined pursuant to be substantially completed on the date that Landlord’s Work has been performed (or would have been performed absent any Delay(s), other than any details of construction, mechanical adjustment or any other matter, the noncompletion of which does not materially interfere with Tenant’s use of the Premises)Letter Agreement. The adjustment of the Commencement Date and, accordingly, the postponement of Tenant’s Tenants obligation to pay Base Rent and other sums due hereunder shall be Tenant’s sole remedy and shall constitute full settlement of all claims that Tenant might otherwise have against Landlord by reason of the Premises not being ready for occupancy by Tenant on the Target Commencement Date. Promptly after the determination of the Commencement Date, Landlord and Tenant shall enter into a letter agreement (the “Commencement Letter”) on the form attached hereto as Exhibit F E setting forth the Commencement Date, the Termination Date and any other dates that are affected by the adjustment of the Commencement Date. If this Lease requires Landlord to perform Landlord’s Work in the Premises, the Commencement Letter shall identify any minor incomplete items of the Landlord’s Work as reasonably determined by Tenant, Tenant’s architect and Landlord’s architect (the “Punchlist Items”), which and Landlord will cause such Punchlist Items Landlord shall promptly remedyto be completed within 30 days after their determination. Tenant, within five (5) days after receipt thereof from Landlord, shall execute the Commencement Letter and return the same to Landlord. Notwithstanding anything herein to the contrary, Landlord may elect, by written notice to Tenant, not to adjust the Commencement Date as provided above if such adjustment would cause Landlord to be in violation of the existing rights granted to any other tenant of the Building. If Landlord elects not to adjust the Commencement Date, the Commencement Date shall be the Target Commencement Date, provided that Base Rent and Additional Rent shall not commence until the date that Landlord’s Work has been substantially completed (or would have been substantially completed absent any Delays). Notwithstanding the foregoing, if Landlord and Tenant have approved Plans (as defined in the Work Letter) and such Plans have been submitted to the City of Irvine for building permits on or before November 30, 2003, but Tenant is unable to occupy the Premises on or before August 1, 2004, (the “Outside Date”) because the City of Irvine refuses or is prevented from issuing the permits required to construct the Landlord’s Work reasonably consistent with the Plans, then, provided that Tenant is not then in default of its obligations under this Lease after expiration of the applicable cure period, Tenant shall have the right to terminate this Lease by giving Landlord written notice to that effect after the Outside Date but prior to August 15, 2004.
B. By taking possession of the Premises, Tenant is deemed to have accepted the Premises and agreed that the Premises is in good order and satisfactory condition, subject to Landlord’s obligation to remedy Punchlist Items as set forth above, with no representation or warranty by Landlord as to the condition of the Premises or the Building or suitability thereof for Tenant’s use, except as otherwise provided herein or in the Work Letter, including, but not limited to, the Punchlist Items and Landlord’s ADA compliance obligations set forth in Section 21 below.
C. . Notwithstanding anything to the contrary contained in this Lease, Landlord shall not be obligated to tender possession of any portion of the Premises or other space leased by Tenant from time to time hereunder that, on the date possession is to be delivered, is occupied by a tenant or other occupant or that is subject to the rights of any other tenant or occupant, nor shall Landlord have any other obligations to Tenant under this Lease with respect to such space until the date Landlord: (1) recaptures such space from such existing tenant or occupant; and (2) regains the legal right to possession thereof. This Lease shall not be void or voidable nor otherwise affected by any such failure to deliver possession and Tenant shall have no claim for damages against Landlord as a result thereof, all of which are hereby waived and released by Tenant. If Landlord is prevented from delivering possession of the Premises to Tenant due to the holding over in possession of the Premises by a tenant or other occupant thereof, Landlord shall use reasonable efforts to regain possession of the Premises in order to deliver the same to Tenant. If As of the Lease Term is to be determined pursuant to Section 1.L.(1) date hereof, the Premises are unoccupied and not subject to any lease. As long as Tenant is not in default hereunder, Landlord will not enter into any other lease for the Premises on or before the Commencement Date shall be postponed until the date Landlord delivers Date.
C. If Tenant takes possession of the Premises prior to Tenant, in which event the Termination Date shall, at the option of Landlord, correspondingly be postponed on a per diem basis. If the Lease Term is to be determined pursuant to Section 1.L.(2), the Commencement Date and Termination Date shall be determined as provided in Section 3.A. above.
D. So long as Tenant does not interfere with the completion of Landlord’s Work (as defined in Exhibit D)Date, Landlord shall use commercially reasonable efforts to give Tenant access to the Premises for not less than fifteen (15) days prior to substantial completion of Landlord’s Work (the “Early Access Period”) for purposes of installing Tenant’s furniture, fixtures and equipment, including, without limitation, Tenant’s telephone and data cabling (“Tenant’s Work”). Landlord will provide Tenant with reasonable prior notice as to when the Early Access Period will commence based upon a schedule to be reasonably established by Landlord’s contractor. Tenant’s Work shall be performed by Tenant at Tenant’s sole cost and expense. Tenant agrees to provide Landlord with prior notice of any such intended early access and shall fully cooperate with Landlord and Landlord’s contractor during the Early Access Period so as not to interfere with the completion of Landlord’s Work pursuant to Exhibit D. The Early Access Period possession shall be subject to all the terms and conditions of the Lease and Tenant shall pay Base Rent and Additional Rent to Landlord for each day of occupancy prior to the Commencement Date. Notwithstanding the foregoing, if Tenant, with Landlord’s prior approval, which approval shall not be unreasonable withheld, conditioned or delayed, takes possession of the Premises prior to the Commencement Date for the sole purpose of performing any Landlord approved improvements therein or installing furniture, equipment or other personal property of Tenant, such possession shall be subject to all of the terms and conditions of this Lease, except that Tenant shall not be required to pay Rent with respect to the period of time prior to the Commencement Date during which Tenant performs such periodwork. Tenant shall, however, be liable for the cost of any services (e.g. electricity, HVAC, freight elevators) that are provided to Tenant or the Premises during the period of Tenant’s possession prior to the Commencement Date. Nothing herein shall be construed as granting Tenant the right to take possession of the Premises prior to the Commencement Date, whether for construction, fixturing or any other purpose, without the prior consent of Landlord.
Appears in 1 contract
Samples: Office Lease (Alfacell Corp)