ALLOWANCE; PERIODIC PAYMENTS. (a) Landlord shall make a contribution (the "Allowance") towards the "hard costs" and the "soft costs" of Tenant's Work (as such terms are hereinafter defined), in an amount equal to $3,011,645.00 (i.e., being approximately $25.66 per square foot of Rentable Area of the Premises), on the terms and conditions hereinafter set forth. If the cost of the Tenant's Work exceeds the Allowance, Tenant shall have sole responsibility for the payment of such excess cost, and shall pay any such excess when due from time to time (i.e., based on estimates from time to time of the total cost of the Tenant's Work) prior to any further disbursement of the Allowance. It is acknowledged that Landlord intends that not less than $2,307,371.00 (i.e., being approximately $19.66 per square feet of Rentable Area of the Premises) of the overall Allowance be contributed to so-called "hard" construction costs for the Tenant's Work (which "hard" construction costs, for purposes hereof, shall include all costs and fees payable under the construction contract with Tenant's general contractor or under any other construction contracts entered into by Tenant relative to the construction of the Tenant's Work, together with all costs associated with permits and other governmental approvals, the "supervisory fees" payable to Landlord under Paragraph 5 hereof, and all costs associated with the installation of telephone and cabling lines into the walls of the Premises), and it is hereby agreed that no more than $704,274.00 (i.e., being $6.00 per square foot of Rentable Area of the Premises) of the overall Allowance (herein, the "Available Soft Cost Contribution") may be applied by Tenant to pay for so-called "soft" costs associated with Tenant's construction of the Tenant's Work, including moving/relocation to the Premises (which "soft" costs, for purposes hereof, shall include all architectural and engineering costs and fees, moving expenses, relocation costs, consulting fees and other reimburseable expenses; all costs of furniture, fixtures and equipment; telephone and cabling costs associated with the interior of the Premises; and all other costs and expenses paid by Tenant to Landlord hereunder, other than the "supervisory fees" specifically set forth in Paragraph 5 of this Agreement). (b) Periodically, but not more frequently than once per month, Tenant may submit to Landlord a payment request for costs of the Tenant's Work incurred and not previously paid naming the parties to be paid and the respective amounts of such payments, which payment request shall be accompanied by: (i) A statement in writing under oath signed by Tenant stating the various contracts entered into by Tenant for the Tenant's Work and with respect to each: the total contract price of all labor, work, services and materials; the amounts theretofore paid thereon; the amount requested for the current disbursement; and the balance due for such labor, work, services and materials, after payment of the current disbursement, to complete the Tenant's Work in accordance with the Plans; (ii) A written application for payment from each of Tenant's Contractors disclosed in the aforesaid sworn Tenant's statement wherein each of Tenant's Contractors certifies completion and the cost of that portion of the Tenant's Work for which payment is requested and further certifies that the cost to complete the Tenant's Work remaining to be done under said contract will not exceed the balance due thereunder (without including in such balance any required retainages) and a statement in writing under oath or verified by affidavit of Tenant's Contractor stating: the names of all persons, firms, associations, corporations or other parties by whom labor, materials, services or work will he rendered or furnished pursuant to the contract with Tenant's Contractor; the nature of labor, work, services and materials to be rendered or furnished by each of the foregoing; the amounts (in the case of firm subcontracts) and estimated amounts (in other cases) to be paid for such labor, work, services and materials; the amounts theretofore paid thereon; the amount requested for the current disbursement; and the balance due for such labor, work, services and materials, after payment of the current disbursement, to complete the work described in such subcontract; (iii) A statement from each of the subcontractors and materialmen disclosed in the aforesaid Tenant's Contractor's sworn statement, in writing under oath or verified by affidavit of a duly authorized agent of such subcontractor of the parties furnishing materials and labor to it or for their account, and of the amounts due or to become due each; (iv) Certificate for payment executed by Tenant, acting in its capacity as the architect for the Tenant's Work, on American Institute of Architect's Form G-703; (v) Originals of partial waivers of lien from each of Tenant's Contractors and all materialmen and vendors requesting payment covering such requested payment; and (vi) Evidence reasonably satisfactory to Landlord that Tenant has paid or will pay, simultaneous with payment by Landlord, Tenant's required share of the costs of the Tenant's Work. Provided that the foregoing deliveries have been made, and so long as Tenant is not then in default hereunder or under the Lease, Landlord shall disburse portions of the Allowance in the amount of the requested disbursement no later than thirty (30) days after each such request therefor. (c) Landlord may make payments of the Allowance through a construction escrow established with Landlord's title insurance company pursuant to which escrow said title company shall examine the sworn statements and lien waivers provided by Tenant and Tenant's Contractors and, if so required by Landlord, insure against mechanic lien claims for work done through the date of Tenant's Contractors' most recent request for payment, in which case Tenant agrees to comply with the reasonable terms and conditions of such construction escrow. The escrowee's charges therefor shall be deemed part of the costs of the Tenant's Work. Notwithstanding anything to the contrary contained herein or in the Lease, in the event Landlord makes payments of the Allowance through a construction escrow as provided in this paragraph, Tenant's Contractors may, at their own expense, arrange to provide "trailing" waivers (lien waivers which are dated up to thirty (30) days earlier than the contractor's request for payment) if Landlord's lender so permits and Landlord's title insurance company nevertheless provides the insurance called for by this paragraph. (d) Within thirty (30) days after final completion and installation of the Tenant's Work, Tenant shall submit to Landlord a detailed breakdown of the total amount of the costs of the Tenant's Work, together with final waivers of liens, contractors' affidavits, and architects' certificates in such form as may be reasonably required by Landlord, Landlord's title insurance company and Landlord's lender, if any, from all parties performing labor or supplying materials or services in connection with the Tenant's Work, showing that all of said parties have been compensated in full and waiving all liens in connection with the Premises and Building. (e) Landlord has no obligation to disburse any portion of the Allowance during any period when Tenant is in (A) monetary default hereunder or under the Lease (provided that if Tenant cures any such monetary default in the time and manner provided in the Lease after written notice from Landlord, then Tenant shall again be entitled to disbursement of the Allowance in accordance with the other terms and conditions set forth herein) or (B) non-monetary "Default" hereunder or under the Lease (i.e., meaning a non-monetary default which has not been cured by Tenant in the time and manner described in the Lease after written notice from Landlord). Disbursement of any portion of the Allowance shall not be deemed a waiver of Tenant's obligation to comply with such provisions. Tenant shall be responsible for the appropriateness and completeness of the contractors' affidavits and waivers of lien and approval of any of such work; Landlord shall have no responsibility for any of the foregoing. (f) Landlord shall have the right to withhold a 10% retainage from the Allowance until final disbursement of the Allowance is due hereunder (subject, however, to the terms of Paragraph 7(k) above). Subject to Paragraph 7(k) above, Landlord shall make final disbursement of the Allowance, upon Tenant's satisfaction of the terms of Paragraphs 9(b) and 9(d) above and Tenant's final request for payment (which request shall be made no earlier than the Additional Premises Commencement Date) and certification that the entire Tenant's Work has been performed and that the amounts for which payment is requested are due and owing, which disbursement shall be made within thirty (30) days after presentation by Tenant to Landlord of request for payment and appropriate and complete contractor's affidavits and waivers of lien showing that the work covered thereby has been performed in the Premises. (g) In the event that the cost of Tenant's Work and such other items for which the Allowance may be applied should for any reason be less than the full amount of the Allowance, Tenant shall be entitled to receive such difference as a credit against Monthly Base Rent for the Premises next coming due under the Lease; provided that Tenant shall not be so entitled to any portion of such difference exceeding $1,467,237.50 (i.e., being $12.50 per square foot of Rentable Area of the Premises), and in no event shall such credit against Monthly Base Rent exceed $733,618.75 (i.e., being $6.25 per square foot of Rentable Area) in any one calendar year. (h) Without limitation of the foregoing terms regarding the "Allowance" due and owing from Landlord hereunder, Landlord hereby agrees to make the following contribution (the "Space Plan Allowance") pursuant to the following terms and conditions: (i) A contribution toward the fees and costs due and owing from Tenant to its space planner in connection with the preparation of the initial space plans (and up to two (2) revisions thereof) for Tenant's Work in the amount not to exceed $4,314.50 (i.e., being $.10 per square foot of Rentable Area of the Additional Premises, as defined in the Third Amendment). Within thirty (30) days following submission by Tenant to Landlord of a payment request with respect to the Space Plan Allowance, which request shall include a copy of the invoice(s) showing amounts due and owing to Tenant's space planner in connection with said space plans, or an invoice showing the fees and costs expensed internally by Tenant or one of its Affiliates to prepare the space plan, and, if requested by Landlord, a lien waiver from said space planner showing that all amounts so due and owing in connection with the preparation of the space plans have been fully paid, Landlord shall disburse the Space Plan Allowance to Tenant or, at Tenant's direction, directly to the aforedescribed space planner. Landlord has no obligation to disburse any portion of the Space Plan Allowance during any period when Tenant is in (A) monetary default hereunder or under the Lease or under any Tenant Construction Agreement applicable to the Tenant's Work (provided that if Tenant cures any such monetary default in the time and manner provided in the Lease after written notice from Landlord, then Tenant shall again be entitled to disbursement of the Space Plan Allowance in accordance with the other terms and conditions set forth herein), or (B) non-monetary "Default" hereunder or under the Lease or under any Tenant Construction Agreement applicable to the Tenant's Work (i.e., meaning a non-monetary default which has not been cured by Tenant in the time and manner described in the Lease after written notice from Landlord). Disbursement of any portion of the Space Plan Allowance shall not be deemed a waiver of Tenant's obligation to comply with such provisions. In the event that the fees and costs payable by Tenant to its space planner in connection with preparation of the foregoing space plans is, for any reason, less than the full amount of the Space Plan Allowance, then Tenant shall not be entitled to receive any such difference. In the event that the foregoing fees and costs are greater than the Space Plan Allowance, Tenant shall be fully responsible for the payment of all such excess costs and fees.
Appears in 1 contract
ALLOWANCE; PERIODIC PAYMENTS. (a) Landlord shall make a contribution (the "“Allowance"”) towards the "hard costs" and the "soft costs" cost of Tenant's ’s Work (as such terms are hereinafter defined)including, the costs of construction, design, engineering, and other professional/consultant fees, furniture, reconfiguration and installation and wiring of phone and data processing equipment) and towards moving costs, in an amount equal to $3,011,645.00 (i.e., being approximately $25.66 per square foot the product of the Rentable Area of the portion of the Premises as to which Tenant’s Work is then being performed (i.e. 39,355 square feet with respect to the initial build-out of the Phase I Premises)) multiplied by $10.00 (with the remaining Allowance as to the Phase II Premises and the Phase III Premises to be contributed by Landlord at such times as Tenant builds out the Phase II Premises and the Phase III Premises, respectively) on the terms and conditions hereinafter set forth. If the cost of the Tenant's ’s Work exceeds the AllowanceAllowance required to be disbursed hereunder, Tenant shall have sole responsibility for the payment of such excess cost, and Tenant shall pay any such excess when due from time to time (i.e., based on upon the most recent estimates of the cost of the Tenant’s Work delivered by Tenant under Paragraph 3 above or otherwise furnished by Tenant, in certified form, upon Landlord’s request from time to time of the total cost of the Tenant's Worktherefor) prior to any disbursement or further disbursement of the Allowance. It is acknowledged that , and in such event, Landlord intends that not less than $2,307,371.00 (i.e., being approximately $19.66 per square feet of Rentable Area shall have no obligation to disburse or further disburse any portion of the PremisesAllowance until all such excess costs have been paid by Tenant, and Tenant shall have delivered to Landlord the documentation described in Paragraph 9(b) below evidencing the payment of such excess costs by Tenant. Landlord shall not be obligated to disburse any portion of the overall Allowance which is to be contributed disbursed to so-called "hard" construction costs for the Tenant's Work (which "hard" construction costs, for purposes hereof, shall include all costs and fees payable under the construction contract with Tenant's general contractor or under any other construction contracts entered into as directed by Tenant relative in response to the construction of the Tenant's Work, together with all costs associated with permits and other governmental approvals, the "supervisory fees" payable to Landlord under Paragraph 5 hereof, and all costs associated with the installation of telephone and cabling lines into the walls of the Premises), and it any request for disbursement which is hereby agreed that no submitted by Tenant more than $704,274.00 one hundred twenty (i.e.120) days following the Commencement Date, being $6.00 per square foot except as otherwise provided in Paragraph 9(f) below. If the cost of Rentable Area of Tenant’s Work and such other items for which the Premises) of the overall Allowance (herein, the "Available Soft Cost Contribution") may be applied by should for any reason be less than the full Allowance, Tenant shall not be entitled to pay for so-called "soft" costs associated with Tenant's construction the unapplied portion of the Tenant's WorkAllowance or any credit against Rent in the amount any such unapplied portion, including moving/relocation to the Premises (which "soft" costs, for purposes hereof, shall include all architectural and engineering costs and fees, moving expenses, relocation costs, consulting fees and other reimburseable expenses; all costs of furniture, fixtures and equipment; telephone and cabling costs associated with the interior of the Premises; and all other costs and expenses paid by Tenant to Landlord hereunder, other than the "supervisory fees" specifically set forth except as otherwise provided in Paragraph 5 of this Agreement)9(f) below.
(b) Periodically, but not more frequently than once per month, commencing at any time following the date of the lease, Tenant may submit to Landlord a payment request for costs of the Tenant's ’s Work incurred and not previously paid naming the parties to be paid and the respective amounts of such payments, which payment request shall be accompanied by:
(i) A statement customary “owner’s sworn statement” in writing under oath signed by Tenant stating the various contracts entered into by Tenant for the Tenant's ’s Work and with respect to each: the total contract price of all labor, work, services and materials; the amounts theretofore paid thereon; the amount requested for the current disbursement; and the balance due for such labor, work, services and materials, after payment of the current disbursement, to complete the Tenant's ’s Work in accordance with the Plans;
(ii) A written application for payment from each of Tenant's ’s Contractors disclosed in the aforesaid sworn Tenant's ’s statement wherein each of Tenant's ’s Contractors certifies completion and the cost of that portion of the Tenant's ’s Work for which payment is requested and further certifies that the cost to complete the Tenant's ’s Work remaining to be done under said contract will not exceed the balance due thereunder (without including in such balance any required retainages) and a statement customary “contractor’s sworn statement” in writing under oath or verified signed by affidavit each of Tenant's Contractor ’s Contractors stating: the names of all persons, firms, associations, corporations or other parties by whom labor, materials, services or work will he be rendered or furnished pursuant to the contract with Tenant's ’s Contractor; the nature of labor, work, services and materials to be rendered or furnished by each of the foregoing; the amounts (in the case of firm subcontracts) and estimated amounts (in other cases) to be paid for such labor, work, services and materials; the amounts theretofore paid thereon; the amount requested for the current disbursement; and the balance due for such labor, work, services and materials, after payment of the current disbursement, to complete the work described involved in such subcontract;
(iii) A statement from each of the subcontractors and materialmen disclosed those three phases of construction, respectively, shall be made in the aforesaid Tenant's Contractor's sworn statementthree corresponding phases so that there will be, in writing under oath or verified by affidavit of a duly authorized agent of such subcontractor of the parties furnishing materials and labor to it or for their accounteffect, and of the amounts due or to become due each;
(iv) Certificate for payment executed by Tenant, acting in its capacity as the architect for the Tenant's Work, on American Institute of Architect's Form G-703;
(v) Originals of partial waivers of lien from each of Tenant's Contractors and all materialmen and vendors requesting payment covering such requested payment; and
(vi) Evidence reasonably satisfactory to Landlord that Tenant has paid or will pay, simultaneous with payment by Landlord, Tenant's required share of the costs of the Tenant's Work. Provided that the foregoing deliveries have been made, and so long as Tenant is not then in default hereunder or under the Lease, Landlord shall disburse portions of the Allowance in the amount of the requested disbursement no later than thirty (30) days after each such request therefor.
(c) Landlord may make payments of the Allowance through a construction escrow established with Landlord's title insurance company pursuant to which escrow said title company shall examine the sworn statements and lien waivers provided by Tenant and Tenant's Contractors and, if so required by Landlord, insure against mechanic lien claims for work done through the date of Tenant's Contractors' most recent request for payment, in which case Tenant agrees to comply with the reasonable terms and conditions of such construction escrow. The escrowee's charges therefor shall be deemed part of the costs of the Tenant's Work. Notwithstanding anything to the contrary contained herein or in the Lease, in the event Landlord makes payments of the Allowance through a construction escrow as provided in this paragraph, Tenant's Contractors may, at their own expense, arrange to provide "trailing" waivers (lien waivers which are dated up to thirty (30) days earlier than the contractor's request for payment) if Landlord's lender so permits and Landlord's title insurance company nevertheless provides the insurance called for by this paragraph.
(d) Within thirty (30) days after final completion and installation of the Tenant's Work, Tenant shall submit to Landlord a detailed breakdown of the total amount of the costs of the Tenant's Work, together with final waivers of liens, contractors' affidavits, and architects' certificates in such form as may be reasonably required by Landlord, Landlord's title insurance company and Landlord's lender, if any, from all parties performing labor or supplying materials or services in connection with the Tenant's Work, showing that all of said parties have been compensated in full and waiving all liens in connection with the Premises and Building.
(e) Landlord has no obligation to disburse any portion of the Allowance during any period when Tenant is in (A) monetary default hereunder or under the Lease (provided that if Tenant cures any such monetary default in the time and manner provided in the Lease after written notice from Landlord, then Tenant shall again be entitled to disbursement of the Allowance in accordance with the other terms and conditions set forth herein) or (B) non-monetary "Default" hereunder or under the Lease (i.e., meaning a non-monetary default which has not been cured by Tenant in the time and manner described in the Lease after written notice from Landlord). Disbursement of any portion of the Allowance shall not be deemed a waiver of Tenant's obligation to comply with such provisions. Tenant shall be responsible for the appropriateness and completeness of the contractors' affidavits and waivers of lien and approval of any of such work; Landlord shall have no responsibility for any of the foregoing.
(f) Landlord shall have the right to withhold a 10% retainage from the Allowance until final disbursement of the Allowance is due hereunder (subject, however, to the terms of Paragraph 7(k) above). Subject to Paragraph 7(k) above, Landlord shall make final disbursement three “final” distributions of the Allowance, upon Tenant's satisfaction one for each phase of the terms of Paragraphs 9(b) and 9(d) above and Tenant's final request for payment (which request shall be made no earlier than the Additional Premises Commencement Date) and certification that the entire Tenant's Work has been performed and that the amounts for which payment is requested are due and owing, which disbursement shall be made within thirty (30) days after presentation by Tenant to Landlord of request for payment and appropriate and complete contractor's affidavits and waivers of lien showing that the work covered thereby has been performed in the Premises.
(g) In the event that the cost of Tenant's Work and such other items for which the Allowance may be applied should for any reason be less than the full amount construction of the Allowance, Tenant shall be entitled to receive such difference as a credit against Monthly Base Rent for the Premises next coming due under the Lease; provided that Tenant shall not be so entitled to any portion of such difference exceeding $1,467,237.50 (i.e., being $12.50 per square foot of Rentable Area of the Premises), and in no event shall such credit against Monthly Base Rent exceed $733,618.75 (i.e., being $6.25 per square foot of Rentable Area) in any one calendar yearTenant’s Work.
(h) Without limitation of the foregoing terms regarding the "Allowance" due and owing from Landlord hereunder, Landlord hereby agrees to make the following contribution (the "Space Plan Allowance") pursuant to the following terms and conditions:
(i) A contribution toward the fees and costs due and owing from Tenant to its space planner in connection with the preparation of the initial space plans (and up to two (2) revisions thereof) for Tenant's Work in the amount not to exceed $4,314.50 (i.e., being $.10 per square foot of Rentable Area of the Additional Premises, as defined in the Third Amendment). Within thirty (30) days following submission by Tenant to Landlord of a payment request with respect to the Space Plan Allowance, which request shall include a copy of the invoice(s) showing amounts due and owing to Tenant's space planner in connection with said space plans, or an invoice showing the fees and costs expensed internally by Tenant or one of its Affiliates to prepare the space plan, and, if requested by Landlord, a lien waiver from said space planner showing that all amounts so due and owing in connection with the preparation of the space plans have been fully paid, Landlord shall disburse the Space Plan Allowance to Tenant or, at Tenant's direction, directly to the aforedescribed space planner. Landlord has no obligation to disburse any portion of the Space Plan Allowance during any period when Tenant is in (A) monetary default hereunder or under the Lease or under any Tenant Construction Agreement applicable to the Tenant's Work (provided that if Tenant cures any such monetary default in the time and manner provided in the Lease after written notice from Landlord, then Tenant shall again be entitled to disbursement of the Space Plan Allowance in accordance with the other terms and conditions set forth herein), or (B) non-monetary "Default" hereunder or under the Lease or under any Tenant Construction Agreement applicable to the Tenant's Work (i.e., meaning a non-monetary default which has not been cured by Tenant in the time and manner described in the Lease after written notice from Landlord). Disbursement of any portion of the Space Plan Allowance shall not be deemed a waiver of Tenant's obligation to comply with such provisions. In the event that the fees and costs payable by Tenant to its space planner in connection with preparation of the foregoing space plans is, for any reason, less than the full amount of the Space Plan Allowance, then Tenant shall not be entitled to receive any such difference. In the event that the foregoing fees and costs are greater than the Space Plan Allowance, Tenant shall be fully responsible for the payment of all such excess costs and fees.
Appears in 1 contract
Samples: Office Lease (Ulta Salon, Cosmetics & Fragrance, Inc.)
ALLOWANCE; PERIODIC PAYMENTS. (a) Landlord shall make a contribution (the "Allowance") towards the "hard costs" and the "soft costs" cost of Tenant's Work (as such terms are hereinafter definedincluding, without limitation, the costs of construction, permits and inspections, space plans and design drawings, architectural drawings, mechanical, electrical and plumbing drawings, architectural, engineering and consultants' fees, signage costs, costs of equipment and furnishings, and Landlord's charges described in Paragraph 3(e) and Paragraph 5 above) and toward (i) moving costs ("Moving Costs") and (ii) the termination fee payable by Tenant to its existing landlord in connection with the early termination of its existing lease for premises located at 55 E. Monroe in Chicago, Illinois (the "Termination Fee") and (iii) attxxxxxx' xees in connection with the negotiation of this lease or otherwise relating to the lease transaction being effectuated hereby (the "Attorneys' Fees"), which overall Allowance shall be in an the amount equal to of $3,011,645.00 2,275,514.00 (i.e., being approximately which is $25.66 58.00 per square foot of Rentable Area of the Premises), all on the terms and conditions hereinafter set forth. In no event shall the portion of the Allowance to be disbursed (or which may be requested by Tenant to be disbursed) toward the Termination Fee exceed the sum of $1,000,000.00 and in no event shall the portion of the Allowance to be disbursed (or which may be requested by Tenant to be disbursed) toward the Attorneys' Fees exceed the sum of $20,000.00. The overall Allowance required hereunder, less the amount of the Allowance which Tenant, in accordance herewith, requests to be disbursed toward Moving Costs, Attorneys' Fees and the Termination Fee, is referred to herein as the "Net Allowance". If the cost of the Tenant's Work exceeds the Net Allowance, Tenant shall have sole responsibility for the payment of such excess cost, and shall shall, at Landlord's sole election, pay any such excess when due from time to time (i.e., based on estimates from time to time the then most current estimate of the total cost of the Tenant's WorkWork submitted to and approved by Landlord under Paragraph 3(a) above or, in any event, based on certified cost statements delivered by Tenant to Landlord upon Landlord's request therefor from time to time) prior to any disbursement or further disbursement of the Net Allowance. It is acknowledged that Landlord intends that not less than $2,307,371.00 (i.e.Further, being approximately $19.66 per square feet of Rentable Area if the actual Termination Fee exceeds the maximum portion of the Premises) Allowance required to be made available toward the Termination Fee hereunder (as described above), Tenant shall have the sole responsibility for the payment of such excess cost, and shall, and Landlord's sole election, pay any such excess to its existing landlord prior to Landlord's disbursement of the overall portion of the Allowance be contributed allocated as a contribution toward the Termination Fee. Provided that Tenant has delivered the Security Deposit required under the Lease, then Landlord agrees to so-called "hard" construction costs for disburse the portion of the Allowance allocated toward the Termination Fee within seven (7) days following Tenant's Work written request therefor setting forth reasonable direction to Landlord of where payment is to be made, and delivery to Landlord of (which "hard" construction costs, for purposes hereof, shall include all costs and fees payable under the construction contract with i) a statement from Tenant's general contractor existing landlord setting forth the amount of the Termination Fee due and owing under Tenant's existing lease, and (ii) either (A) evidence that Tenant has paid such amount to its existing landlord as the requisite termination fee under Tenant's existing lease (in which case, Landlord shall pay such portion of the Allowance allocated toward the Termination Fee directly to Tenant, as reimbursement for its payment to its existing landlord), or under (B) a direction to pay the Termination Fee directly to Tenant's existing landlord (in which case, Landlord shall pay such portion of the Allowance allocated toward the Termination Fee directly to Tenant's existing landlord as direct payment of said Termination Fee); subject, in any other construction contracts entered into by Tenant relative event, to the construction terms and conditions described in the preceding sentence and in Paragraph 9(e) below. The balance of the Tenant's Work, together with all costs associated with permits and other governmental approvals, Allowance not otherwise attributable to the "supervisory fees" payable to Landlord under Paragraph 5 hereof, and all costs associated Termination Fee shall be disbursed in accordance with the installation of telephone remaining terms and cabling lines into the walls of the Premises), and it is hereby agreed that no more than $704,274.00 (i.e., being $6.00 per square foot of Rentable Area of the Premises) of the overall Allowance (herein, the "Available Soft Cost Contribution") may be applied by Tenant to pay for so-called "soft" costs associated with Tenant's construction of the Tenant's Work, including moving/relocation to the Premises (which "soft" costs, for purposes hereof, shall include all architectural and engineering costs and fees, moving expenses, relocation costs, consulting fees and other reimburseable expenses; all costs of furniture, fixtures and equipment; telephone and cabling costs associated with the interior of the Premises; and all other costs and expenses paid by Tenant to Landlord hereunder, other than the "supervisory fees" specifically set forth in Paragraph 5 conditions of this Agreement)Paragraph 9.
(b) Periodically, but not more frequently than once per month, Tenant may submit to Landlord a payment request for costs of the Tenant's Work incurred and not previously paid naming the parties to be paid and the respective amounts of such payments, which payment request shall be accompanied by:
(i) A statement in writing under oath signed by Tenant stating the various contracts entered into by Tenant for the Tenant's Work and with respect to each: the total contract price of all labor, work, services and materials; the amounts theretofore paid thereon; the amount requested for the current disbursement; and the balance due for such labor, work, services and materials, after payment of the current disbursement, to complete the Tenant's Work in accordance with the Plans;
(ii) A written application for payment from each of Tenant's Contractors disclosed in the aforesaid sworn Tenant's statement wherein each of Tenant's Contractors certifies completion and the cost of that portion of the Tenant's Work for which payment is requested and further certifies that the cost to complete the Tenant's Work remaining to be done under said contract will not exceed the balance due thereunder (without including in such balance any required retainages) and a statement in writing under oath or verified by affidavit of Tenant's Contractor stating: the names of all persons, firms, associations, corporations or other parties by whom labor, materials, services or work will he be rendered or furnished pursuant to the contract with Tenant's Contractor; the nature of labor, work, services and materials to be rendered or furnished by each of the foregoing; the amounts (in the case of firm subcontracts) and estimated amounts (in other cases) to be paid for such labor, work, services and materials; the amounts theretofore paid thereon; the amount requested for the current disbursement; and the balance due for such labor, work, services and materials, after payment of the current disbursement, to complete the work described in such subcontract;
(iii) A statement from each of the subcontractors and materialmen disclosed in the aforesaid Tenant's Contractor's sworn statement, in writing under oath or verified by affidavit of a duly authorized agent of such subcontractor of the parties furnishing materials and labor to it or for their account, and of the amounts due or to become due each;
(iv) Certificate for payment executed by Tenant, acting in its capacity as the an architect for the Tenant's Work, acceptable to Landlord on American Institute of Architect's Form G-703;; and
(v) Originals of partial waivers of lien from each of Tenant's Contractors and all materialmen and vendors requesting payment covering such requested payment; and
(vi) Evidence reasonably satisfactory to Landlord that Tenant has paid or will pay, simultaneous with payment by Landlord, Tenant's required share of the costs of the Tenant's Work. Provided that the foregoing deliveries have been made, and so long as Tenant is not then in default hereunder or hereunder, under the Lease, or under any separate Tenant Construction Agreement entered into with Landlord, as construction manager, Landlord shall disburse portions of the Allowance in the amount of the requested disbursement no later than thirty (30) days after each such request therefortherefor (provided that if Tenant cures any such default within applicable notice or cure periods under such instruments, then Tenant shall again be entitled to disbursement of the Allowance in accordance with the other terms and conditions set forth in this Paragraph 9).
(c) Except for the portion of the Allowance being disbursed toward Moving Costs, Attorneys' Fees or the Termination Fee, Landlord may make payments of the Allowance through a construction escrow established with Landlord's title insurance company pursuant to which escrow said title company shall examine the sworn statements and lien waivers provided by Tenant and Tenant's Contractors and, if so required by Landlord, insure against mechanic lien claims for work done through the date of Tenant's Contractors' most recent request for payment, in which case Tenant agrees to comply with the reasonable terms and conditions of such construction escrow. The escrowee's charges therefor shall be deemed part of the costs of the Tenant's Work. Notwithstanding anything to the contrary contained herein or in the Lease, in the event Landlord makes payments of the Allowance through a construction escrow as provided in this paragraph, Tenant's Contractors may, at their own expense, arrange to provide "trailing" waivers (lien waivers which are dated up to thirty (30) days earlier than the contractor's request for payment) if Landlord's lender so permits and Landlord's title insurance company nevertheless provides the insurance called for by this paragraph.
(d) Within thirty (30) days after final completion and installation of the Tenant's Work, Tenant shall submit to Landlord a detailed breakdown of the total amount of the costs of the Tenant's Work, together with final waivers of liens, contractors' affidavits, and architects' certificates in such form as may be reasonably required by Landlord, Landlord's title insurance company and Landlord's lender, if any, from all parties performing labor or supplying materials or services in connection with the Tenant's Work, showing that all of said parties have been compensated in full and waiving all liens in connection with the Premises and Building.
(e) Landlord has no obligation to disburse any portion of the Allowance during any period when Tenant is in (A) monetary default hereunder or hereunder, under the Lease or under any tenant construction agreement or workletter agreement entered into with Landlord, as construction manager, applicable to the Tenant's Work (provided that if Tenant cures any such monetary default in the time and manner provided in the Lease after written within applicable notice from Landlordor cure periods under such instruments, then Tenant shall again be entitled to disbursement of the Allowance in accordance with the other terms and conditions set forth herein) or (B) non-monetary "Default" hereunder or under the Lease (i.e., meaning a non-monetary default which has not been cured by Tenant in the time and manner described in the Lease after written notice from Landlordthis Paragraph 9). Disbursement of any portion of the Allowance shall not be deemed a waiver of Tenant's obligation to comply with such provisions. Tenant shall be responsible for the appropriateness and completeness of the contractors' affidavits and waivers of lien and approval of any of such work; Landlord shall have no responsibility for any of the foregoing.
(f) Except for that portion of the Allowance being disbursed toward Moving Costs, Attorneys' Fees or the Termination Fee, Landlord shall have the right to withhold a ten percent (10% %) retainage from the any Allowance until final disbursement of the Allowance is due hereunder (subject, however, payment requests submitted by Tenant from time to the terms of Paragraph 7(k) above)time. Subject to Paragraph 7(k) above, Landlord shall make final disbursement disburse such retainage, together with the balance of the Allowance, upon Tenant's satisfaction of the terms of Paragraphs Paragraph 9(b) and 9(d) above and Tenant's final request for payment (which request shall be made no earlier than the Additional Premises Commencement Date) and certification that the entire Tenant's Work has been performed and that the amounts for which payment is requested are due and owing, which disbursement shall be made within thirty (30) days after presentation by Tenant to Landlord of request for payment and appropriate and complete contractor's affidavits and waivers of lien showing that the work covered thereby has been performed in the Premises.
(g) In the event that the cost of Tenant's Work and such other items for which the Allowance may be applied should for any reason be less than the full amount of the Allowance, Tenant shall be entitled to receive such difference as a credit against Monthly Base Rent for the Premises next coming due under the Lease; provided that Tenant shall not be so entitled to any portion of such difference exceeding $1,467,237.50 196,165.00 (i.e., being which is $12.50 5.00 per square foot of Rentable Area of the Premises), and in no event shall such credit against Monthly Base Rent exceed $733,618.75 (i.e., being $6.25 per square foot of Rentable Area) in any one calendar year.
(h) Without limitation of the foregoing terms regarding the "Allowance" due and owing from Landlord hereunder, Landlord hereby agrees to make the following contribution (the "Space Plan Allowance") pursuant to the following terms and conditions:
(i) A contribution toward the fees and costs due and owing from Tenant to its space planner in connection with the preparation of the initial space plans (and up to two (2) revisions thereof) for Tenant's Work in the amount not to exceed $4,314.50 (i.e., being $.10 per square foot of Rentable Area of the Additional Premises, as defined in the Third Amendment). Within thirty (30) days following submission by Tenant to Landlord of a payment request with respect to the Space Plan Allowance, which request shall include a copy of the invoice(s) showing amounts due and owing to Tenant's space planner in connection with said space plans, or an invoice showing the fees and costs expensed internally by Tenant or one of its Affiliates to prepare the space plan, and, if requested by Landlord, a lien waiver from said space planner showing that all amounts so due and owing in connection with the preparation of the space plans have been fully paid, Landlord shall disburse the Space Plan Allowance to Tenant or, at Tenant's direction, directly to the aforedescribed space planner. Landlord has no obligation to disburse any portion of the Space Plan Allowance during any period when Tenant is in (A) monetary default hereunder or under the Lease or under any Tenant Construction Agreement applicable to the Tenant's Work (provided that if Tenant cures any such monetary default in the time and manner provided in the Lease after written notice from Landlord, then Tenant shall again be entitled to disbursement of the Space Plan Allowance in accordance with the other terms and conditions set forth herein), or (B) non-monetary "Default" hereunder or under the Lease or under any Tenant Construction Agreement applicable to the Tenant's Work (i.e., meaning a non-monetary default which has not been cured by Tenant in the time and manner described in the Lease after written notice from Landlord). Disbursement of any portion of the Space Plan Allowance shall not be deemed a waiver of Tenant's obligation to comply with such provisions. In the event that the fees and costs payable by Tenant to its space planner in connection with preparation of the foregoing space plans is, for any reason, less than the full amount of the Space Plan Allowance, then Tenant shall not be entitled to receive any such difference. In the event that the foregoing fees and costs are greater than the Space Plan Allowance, Tenant shall be fully responsible for the payment of all such excess costs and fees.
Appears in 1 contract
Samples: Office Lease (Imanage Inc)
ALLOWANCE; PERIODIC PAYMENTS. (a) Landlord shall make a contribution (the "Allowance") towards the "“hard costs" ” and the "“soft costs" ” of Tenant's Work (as such terms are hereinafter defined), in an amount equal to $3,011,645.00 2,629,080.00 (i.e., being approximately $25.66 45.00 per square foot of Rentable Area of the New Premises), on the terms and conditions hereinafter set forth. If the cost of the Tenant's Work exceeds the Allowance, Tenant shall have sole responsibility for the payment of such excess cost, and and, at Landlord's election, Tenant shall be obligated to pay any such excess its "pro-rata share" (as defined in Paragraph 9(g) below) of the cost of the Tenant’s Work when due from time to time (i.e., based on upon the most recent estimates from time to time of the total cost of the Tenant's WorkWork delivered by Tenant under Paragraph 3 above or otherwise furnished by Tenant upon Landlord's request from time to time therefor) prior as an express condition for Landlord's obligation to disburse any further disbursement portion of the Allowance, and in such event, Landlord shall have no obligation to further disburse any portion of the Allowance until Tenant's pro-rata share of the costs of the Tenant’s Work have been so paid by Tenant. It is acknowledged that Landlord intends that not less than $2,307,371.00 1,971,810.00 (i.e., being approximately $19.66 per square feet of Rentable Area 75% of the PremisesAllowance) of the overall Allowance be contributed to so-called "“hard" ” construction costs for the Tenant's ’s Work (which "“hard" ” construction costs, for purposes hereof, shall include all costs and fees payable under the construction contract with Tenant's ’s general contractor contractor, construction manager or under any other construction contracts entered into by Tenant relative to the construction of the Tenant's ’s Work, together with all costs associated with permits and other governmental approvals, the "supervisory fees" fees payable to Landlord under Paragraph 5 hereof, and all costs associated with the installation of telephone and cabling lines into the walls of the Premises), and it is hereby agreed that no more than $704,274.00 657,270.00 (i.e., being $6.00 per square foot of Rentable Area 25% of the PremisesAllowance) of the overall Allowance (herein, the "“Available Soft Cost Contribution"”) may be applied by Tenant to pay for so-called "“soft" ” costs associated with Tenant's ’s construction of the Tenant's ’s Work, including moving/relocation to the Premises (which "“soft" ” costs, for purposes hereof, shall include all architectural and engineering costs and fees, moving expenses, relocation costs, consulting fees and other reimburseable expenses; all costs of furniture, fixtures and equipment; telephone and cabling costs associated with the interior of the Premises; and all other costs and expenses paid by Tenant to Landlord hereunder, other than the "supervisory fees" fees specifically set forth in Paragraph 5 of this Agreement).
(b) Periodically, but not more frequently than once per month, beginning at any time following the full execution and delivery of the Fourth Amendment, Tenant may submit to Landlord a payment request for costs of the Tenant's Work incurred and not previously paid naming the parties to be paid and the respective amounts of such payments, which payment request shall be accompanied by:
(i) A statement in writing under oath signed by Tenant stating the various contracts entered into by Tenant for the Tenant's Work and with respect to each: the total contract price of all labor, work, services and materials; the amounts theretofore paid thereon; the amount requested for the current disbursement; and the balance due for such labor, work, services and materials, after payment of the current disbursement, to complete the Tenant's Work in accordance with the Plans;
(ii) A written application for payment from each of Tenant's Contractors disclosed in the aforesaid sworn Tenant's statement wherein each of Tenant's Contractors certifies completion and the cost of that portion of the Tenant's Work for which payment is requested and further certifies that the cost to complete the Tenant's Work remaining to be done under said contract will not exceed the balance due thereunder (without including in such balance any required retainages) and a statement in writing under oath or verified by affidavit of Tenant's Contractor stating: the names of all persons, firms, associations, corporations or other parties by whom labor, materials, services or work will he be rendered or furnished pursuant to the contract with Tenant's Contractor; the nature of labor, work, services and materials to be rendered or furnished by each of the foregoing; the amounts (in the case of firm subcontracts) and estimated amounts (in other cases) to be paid for such labor, work, services and materials; the amounts theretofore paid thereon; the amount requested for the current disbursement; and the balance due for such labor, work, services and materials, after payment of the current disbursement, to complete the work described in such subcontract;
(iii) A statement from each of the subcontractors and materialmen disclosed in the aforesaid Tenant's Contractor's sworn statement, in writing under oath or verified by affidavit of a duly authorized agent of such subcontractor of the parties furnishing materials and labor to it or for their account, and of the amounts due or to become due each;
(iv) Certificate for payment executed by Tenant, acting in its capacity as the architect for the Tenant's ’s Work, on American Institute of Architect's Form G-703;
(v) Originals of partial waivers of lien from each of Tenant's Contractors and all materialmen and vendors requesting payment covering such requested payment; and
(vi) Evidence reasonably satisfactory to Landlord that Tenant has paid or will pay, simultaneous with payment by Landlord, Tenant's required share of the costs of the Tenant's Work. Provided that the foregoing deliveries have been made, and so long as Tenant is not then in default Default hereunder or under the Lease, Landlord shall disburse portions of the Allowance in the amount of the requested disbursement no later than thirty (30) days after each such request therefor.
(c) Landlord may make payments of the Allowance through a construction escrow established with Landlord's title insurance company pursuant to which escrow said title company shall examine the sworn statements and lien waivers provided by Tenant and Tenant's Contractors and, if so required by Landlord, insure against mechanic lien claims for work done through the date of Tenant's Contractors' most recent request for payment, in which case Tenant agrees to comply with the reasonable terms and conditions of such construction escrow. The escrowee's charges therefor shall be deemed part the responsibility of Landlord and may not be deducted from the costs of the Tenant's WorkAllowance. Notwithstanding anything to the contrary contained herein or in the Lease, in the event Landlord makes payments of the Allowance through a construction escrow as provided in this paragraph, Tenant's Contractors may, at their own expense, arrange to provide "trailing" waivers (lien waivers which are dated up to thirty (30) days earlier than the contractor's request for payment) if Landlord's lender so permits and Landlord's title insurance company nevertheless provides the insurance called for by this paragraph.
(d) Within thirty (30) days after final completion and installation of the Tenant's Work, Tenant shall submit to Landlord a detailed breakdown of the total amount of the costs of the Tenant's Work, together with final waivers of liens, contractors' affidavits, and architects' certificates in such form as may be reasonably required by Landlord, Landlord's title insurance company and Landlord's lender, if any, from all parties performing labor or supplying materials or services in connection with the Tenant's Work, showing that all of said parties have been compensated in full and waiving all liens in connection with the Premises and Building.
(e) Landlord has no obligation to disburse any portion of the Allowance during any period when Tenant is in (A) monetary default hereunder or under the Lease (provided that if Tenant cures any such monetary default in the time and manner provided in the Lease after written notice from Landlord, then Tenant shall again be entitled to disbursement of the Allowance in accordance with the other terms and conditions set forth herein) or (B) non-monetary "“Default" ” hereunder or under the Lease (i.e., meaning a non-monetary default Default which has not been cured by Tenant in the time and manner described in the Lease after written notice from Landlord). Disbursement of any portion of the Allowance shall not be deemed a waiver of Tenant's obligation to comply with such provisions. Tenant shall be responsible for the appropriateness and completeness of the contractors' affidavits and waivers of lien and approval of any of such work; Landlord shall have no responsibility for any of the foregoing.
(f) Landlord shall have the right to withhold a 10% retainage from the Allowance until final disbursement of the Allowance is due hereunder (subject, however, to the terms of Paragraph 7(k) above). Subject to Paragraph 7(k) above, Landlord shall make final disbursement of the Allowance, upon Tenant's satisfaction of the terms of Paragraphs 9(b) and 9(d) above and Tenant's final request for payment (which request shall be made no earlier than the Additional New Premises Commencement Date) and certification that the entire Tenant's Work has been performed and that the amounts for which payment is requested are due and owing, which disbursement shall be made within thirty (30) days after presentation by Tenant to Landlord of request for payment and appropriate and complete contractor's affidavits and waivers of lien showing that the work covered thereby has been performed in the Premises.
(g) In the event that the cost of Tenant's Work and such other items for which the Allowance may be applied should for any reason be less than the full amount of the Allowance, Tenant shall not be entitled to receive such difference as a credit against Monthly Base Rent for the Premises next coming due under the Lease; provided that Tenant shall not be so entitled to any portion of such difference exceeding $1,467,237.50 (i.e., being $12.50 per square foot of Rentable Area of the Premises)difference, and in no event shall such credit against Monthly Base Rent exceed $733,618.75 (i.e., being $6.25 per square foot of Rentable Area) in any one calendar year.
(h) Without limitation of the foregoing terms regarding the "Allowance" due and owing from Landlord hereunder, Landlord hereby agrees to make the following contribution (the "Space Plan Allowance") pursuant to the following terms and conditions:
(i) A contribution toward the fees and costs due and owing from Tenant to its space planner in connection with the preparation of the initial space plans (and up to two (2) revisions thereof) for Tenant's Work in the amount not to exceed $4,314.50 (i.e., being $.10 per square foot of Rentable Area of the Additional Premises, as defined in the Third Amendment). Within thirty (30) days following submission by Tenant to Landlord of a payment request waives all claims with respect to the Space Plan Allowance, which request shall include a copy of the invoice(s) showing amounts due and owing to Tenant's space planner in connection with said space plans, or an invoice showing the fees and costs expensed internally by Tenant or one of its Affiliates to prepare the space plan, and, if requested by Landlord, a lien waiver from said space planner showing that all amounts so due and owing in connection with the preparation of the space plans have been fully paid, Landlord shall disburse the Space Plan Allowance to Tenant or, at Tenant's direction, directly to the aforedescribed space planner. Landlord has no obligation to disburse any portion of the Space Plan Allowance during any period when Tenant is in (A) monetary default hereunder or under the Lease or under any Tenant Construction Agreement applicable to the Tenant's Work (provided that if Tenant cures any such monetary default in the time and manner provided in the Lease after written notice from Landlord, then Tenant shall again be entitled to disbursement of the Space Plan Allowance in accordance with the other terms and conditions set forth herein), or (B) non-monetary "Default" hereunder or under the Lease or under any Tenant Construction Agreement applicable to the Tenant's Work (i.e., meaning a non-monetary default which has not been cured by Tenant in the time and manner described in the Lease after written notice from Landlord). Disbursement of any portion of the Space Plan Allowance shall not be deemed a waiver of Tenant's obligation to comply with such provisionsthereto. In the event that the fees cost of the Tenant's Work and costs payable such other items for which the Allowance may be applied (herein, “Allowance Permitted Costs”) should for any reason be greater than the maximum Allowance required of Landlord hereunder, Tenant shall have sole responsibility for the payment of such excess cost, and Tenant shall, at Landlord's option, for each pending draw request, pay such portion of the pending draw request which is necessary so that Tenant has then paid, together with any previous payments made by Tenant on account of the Allowance Permitted Costs, an amount equal to Tenant's pro-rata share (as hereinafter defined) of the Allowance Permitted Costs, all as a condition to Landlord's disbursement or further disbursement of portions of the Allowance. For purposes of the foregoing, (A) Tenant's "pro-rata share" of the applicable Allowance Permitted Costs shall mean (1) the total amount of the Allowance Permitted Costs incurred to date, less (2) "Landlord's Share"; and (B) the term "Landlord's Share" shall mean the total amount of Allowance Permitted Costs incurred as of the date of determination, multiplied by a fraction, the numerator of which is the total amount of the Allowance then required hereunder and the denominator of which is the total amount of anticipated Allowance Permitted Costs (as such anticipated Allowance Permitted Costs are determined based on cost statements delivered by Tenant to its space planner Landlord from time to time, and in connection with preparation of the foregoing space plans isany event, for any reason, less than the full amount of the Space Plan Allowance, then delivered by Tenant shall not be entitled to receive any such differenceLandlord promptly upon Landlord's request therefor). In the event that the foregoing fees and costs are greater than the Space Plan Allowance, Tenant shall be fully responsible for the payment of all such excess “soft” costs associated with the Tenant’s Work and feesexceeding the Available Soft Cost Contribution. Further, Tenant shall be responsible for payment of all costs associated with Allowance amounts retained by Landlord as permitted retainage hereunder, subject to reimbursement as part of the final disbursement of the Allowance described in Paragraph 9(f) above.
Appears in 1 contract
ALLOWANCE; PERIODIC PAYMENTS. (a) Landlord shall make a contribution (the "Allowance") towards the "hard costs" and the "soft costs" of Tenant's Work (as such terms are hereinafter defined), in an amount equal to $3,011,645.00 619,990.00 (i.e., being approximately $25.66 35.00 per square foot of Rentable Area of the Premises), on the terms and conditions hereinafter set forth. If the cost of the Tenant's Work exceeds the Allowance, Tenant shall have sole responsibility for the payment of such excess cost, and shall pay any such excess when due from time to time (i.e., based on estimates from time to time of the total cost of the Tenant's Work) prior to any further disbursement of the Allowance. It is acknowledged that Landlord intends that not less than $2,307,371.00 513,706.00 (i.e., being approximately $19.66 29.00 per square feet of Rentable Area of the Premises) of the overall Allowance be contributed to so-called "hard" construction costs for the Tenant's Work (which "hard" construction costs, for purposes hereof, shall include all costs and fees payable under the construction contract with Tenant's general contractor or under any other construction contracts entered into by Tenant relative to the construction of the Tenant's Work, together with all costs associated with permits and other governmental approvals, the "supervisory fees" payable to Landlord under Paragraph 5 hereof, and all costs associated with the installation of telephone and cabling lines into the walls of the Premises), and it is hereby agreed that no more than $704,274.00 106,284.00 (i.e., being $6.00 per square foot of Rentable Area of the Premises) of the overall Allowance (herein, the "Available Soft Cost Contribution") may be applied by Tenant to pay for so-called "soft" costs associated with Tenant's construction of the Tenant's Work, including moving/relocation to the Premises (which "soft" costs, for purposes hereof, shall include all architectural and engineering costs and fees, moving expenses, relocation costs, consulting fees and other reimburseable expenses; all costs of furniture, fixtures and equipment; telephone and cabling costs associated with the interior of the Premises; and all other costs and expenses paid by Tenant to Landlord hereunder, other than the "supervisory fees" specifically set forth in Paragraph 5 of this Agreement).
(b) Periodically, but not more frequently than once per month, Tenant may submit to Landlord a payment request for costs of the Tenant's Work incurred and not previously paid naming the parties to be paid and the respective amounts of such payments, which payment request shall be accompanied by:
(i) A statement in writing under oath signed by Tenant stating the various contracts entered into by Tenant for the Tenant's Work and with respect to each: the total contract price of all labor, work, services and materials; the amounts theretofore paid thereon; the amount requested for the current disbursement; and the balance due for such labor, work, services and materials, after payment of the current disbursement, to complete the Tenant's Work in accordance with the Plans;
(ii) A written application for payment from each of Tenant's Contractors disclosed in the aforesaid sworn Tenant's statement wherein each of Tenant's Contractors certifies completion and the cost of that portion of the Tenant's Work for which payment is requested and further certifies that the cost to complete the Tenant's Work remaining to be done under said contract will not exceed the balance due thereunder (without including in such balance any required retainages) and a statement in writing under oath or verified by affidavit of Tenant's Contractor stating: the names of all persons, firms, associations, corporations or other parties by whom labor, materials, services or work will he be rendered or furnished pursuant to the contract with Tenant's Contractor; the nature of labor, work, services and materials to be rendered or furnished by each of the foregoing; the amounts (in the case of firm subcontracts) and estimated amounts (in other cases) to be paid for such labor, work, services and materials; the amounts theretofore paid thereon; the amount requested for the current disbursement; and the balance due for such labor, work, services and materials, after payment of the current disbursement, to complete the work described in such subcontract;
(iii) A statement from each of the subcontractors and materialmen disclosed in the aforesaid Tenant's Contractor's sworn statement, in writing under oath or verified by affidavit of a duly authorized agent of such subcontractor of the parties furnishing materials and labor to it or for their account, and of the amounts due or to become due each;
(iv) Certificate for payment executed by Tenant, acting in its capacity as the architect for the Tenant's Work, on American Institute of Architect's Form G-703;
(v) Originals of partial waivers of lien from each of Tenant's Contractors and all materialmen and vendors requesting payment covering such requested payment; and
(vi) Evidence reasonably satisfactory to Landlord that Tenant has paid or will pay, simultaneous with payment by Landlord, Tenant's required proportionate share of the costs of the Tenant's Work. Provided that the foregoing deliveries have been made, and so long as Tenant is not then in default hereunder or under the Lease, Landlord shall disburse portions of the Allowance in the amount of the requested disbursement no later than thirty (30) days after each such request therefor.
(c) Landlord may make payments of the Allowance through a construction escrow established with Landlord's title insurance company pursuant to which escrow said title company shall examine the sworn statements and lien waivers provided by Tenant and Tenant's Contractors and, if so required by Landlord, insure against mechanic lien claims for work done through the date of Tenant's Contractors' most recent request for payment, in which case Tenant agrees to comply with the reasonable terms and conditions of such construction escrow. The escrowee's charges therefor shall be deemed part of the costs of the Tenant's Work. Notwithstanding anything to the contrary contained herein or in the Lease, in the event Landlord makes payments of the Allowance through a construction escrow as provided in this paragraph, Tenant's Contractors may, at their own expense, arrange to provide "trailing" waivers (lien waivers which are dated up to thirty (30) days earlier than the contractor's request for payment) if Landlord's lender so permits and Landlord's title insurance company nevertheless provides the insurance called for by this paragraph.
(d) Within thirty (30) days after final completion and installation of the Tenant's Work, Tenant shall submit to Landlord a detailed breakdown of the total amount of the costs of the Tenant's Work, together with final waivers of liens, contractors' affidavits, and architects' certificates in such form as may be reasonably required by Landlord, Landlord's title insurance company and Landlord's lender, if any, from all parties performing labor or supplying materials or services in connection with the Tenant's Work, showing that all of said parties have been compensated in full and waiving all liens in connection with the Premises and Building.
(e) Landlord has no obligation to disburse any portion of the Allowance during any period when Tenant is in (A) monetary default hereunder or under the Lease (provided that if Tenant cures any such monetary default in the time and manner provided in the Lease after written notice from Landlord, then Tenant shall again be entitled to disbursement of the Allowance in accordance with the other terms and conditions set forth herein) or (B) non-monetary "Default" hereunder or under the Lease (i.e., meaning a non-monetary default which has not been cured by Tenant in the time and manner described in the Lease after written notice from Landlord)Lease. Disbursement of any portion of the Allowance shall not be deemed a waiver of Tenant's obligation to comply with such provisions. Tenant shall be responsible for the appropriateness and completeness of the contractors' affidavits and waivers of lien and approval of any of such work; Landlord shall have no responsibility for any of the foregoing.
(f) Landlord shall have the right to withhold a 10% retainage from the Allowance until final disbursement of the Allowance is due hereunder (subject, however, to the terms of Paragraph 7(k) above). Subject to Paragraph 7(k) above, Landlord shall make final disbursement of the Allowance, upon Tenant's satisfaction of the terms of Paragraphs 9(b) and 9(d) above and Tenant's final request for payment (which request shall be made no earlier than the Additional Premises Commencement Date) and certification that the entire Tenant's Work has been performed and that the amounts for which payment is requested are due and owing, which disbursement shall be made within thirty (30) days after presentation by Tenant to Landlord of request for payment and appropriate and complete contractor's affidavits and waivers of lien showing that the work covered thereby has been performed in the Premises.
(g) In the event that the cost of Tenant's Work and such other items for which the Allowance may be applied should for any reason be less than the full amount of the Allowance, Tenant shall be entitled to receive such difference either in cash or as a credit against Monthly Additional Premises Base Rent for the Additional Premises next coming due under the LeaseLease (with such choice being made at Tenant's sole election); provided that Tenant shall not be so entitled to any portion of such difference exceeding $1,467,237.50 (i.e., being $12.50 per square foot of Rentable Area of the Premises), and in no event shall such credit against Monthly Base Rent exceed $733,618.75 (i.e., being $6.25 per square foot of Rentable Area) in any one calendar year.
(h) Without limitation of the foregoing terms regarding the "Allowance" due and owing from Landlord hereunder, Landlord hereby agrees to make the following contribution (the "Space Plan Allowance") pursuant to the following terms and conditions:
(i) A contribution toward the fees and costs due and owing from Tenant to its space planner in connection with the preparation of the initial space plans (and up to two (2) revisions thereof) for Tenant's Work in the amount not to exceed $4,314.50 (i.e., being $.10 per square foot of Rentable Area of the Additional Premises, as defined in the Third Amendment). Within thirty (30) days following submission by Tenant to Landlord of a payment request with respect to the Space Plan Allowance, which request shall include a copy of the invoice(s) showing amounts due and owing to Tenant's space planner in connection with said space plans, or an invoice showing the fees and costs expensed internally by Tenant or one of its Affiliates to prepare the space plan, and, if requested by Landlord, a lien waiver from said space planner showing that all amounts so due and owing in connection with the preparation of the space plans have been fully paid, Landlord shall disburse the Space Plan Allowance to Tenant or, at Tenant's direction, directly to the aforedescribed space planner. Landlord has no obligation to disburse any unused portion of the Space Plan Allowance during any period when Tenant is in (A) monetary default hereunder or under the Lease or under any Tenant Construction Agreement applicable to the Tenant's Work (provided that if Tenant cures any such monetary default in the time and manner provided in the Lease after written notice from Landlord, then Tenant shall again be entitled to disbursement of the Space Plan Allowance in accordance with the other terms and conditions set forth herein), or (B) non-monetary "DefaultAvailable Soft Cost Contribution" hereunder or under the Lease or under any Tenant Construction Agreement applicable to the Tenant's Work (i.e., meaning a non-monetary default which has not been cured by Tenant in the time and manner described in the Lease after written notice from Landlord). Disbursement of any that portion of the Space Plan Allowance shall Available Soft Cost Contribution not be deemed a waiver of Tenant's obligation otherwise used to comply with such provisions. In the event that the fees and fund "soft" costs payable by Tenant to its space planner as described in connection with preparation of the foregoing space plans is, for any reason, less than the full amount of the Space Plan Allowance, then Tenant shall not be entitled to receive any such difference. In the event that the foregoing fees and costs are greater than the Space Plan Allowance, Tenant shall be fully responsible for the payment of all such excess costs and feesParagraph 9(a) above).
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ALLOWANCE; PERIODIC PAYMENTS. (a) Landlord shall make a contribution (the "“Office Allowance"” and “Warehouse Allowance”, as further defined below) towards the "hard costs" and the "soft costs" cost of Tenant's ’s Work (as such terms are hereinafter definedincluding, without limitation, the costs of construction (including demolition), furniture, installation and wiring of phone and data processing equipment, permits and inspections, space plans, design drawings and other architectural drawings) and toward moving costs and any other architectural fees in connection with the Tenant’s Work (herein, the “Allowance Permitted Costs”), in an amount equal estimated to be (and subject to the terms of the Final Space Plan Addendum) to (i) $3,011,645.00 2,700,000 (should the Office Space be comprised of 30,000 square feet of Rentable Area) for the portion of the Tenant’s Work being performed in the Office Space the (“Office Allowance”) (i.e., being approximately $25.66 90.00 per square foot of Rentable Area of the PremisesOffice Space), and (ii) $250,000 (should the Warehouse Space be comprised of 5,000 square feet of Rentable Area) for the portion of the Tenant’s Work being performed in the Warehouse Space (the “Warehouse Allowance”) (i.e., being $50.00 per square foot of Rentable Area of the Warehouse Space), on the terms and conditions hereinafter set forth. Landlord and Xxxxxx acknowledge and agree that the Office Allowance shall only be allocated, used and distributed for the Tenant’s Work performed in the Office Space, and the Warehouse Allowance shall only be allocated, used and distributed for the Tenant’s Work performed in the Warehouse Space. The Office Allowance and Warehouse Allowance may collectively be referred to as the “Allowance”. If the cost of the Tenant's ’s Work is less than the Allowance, any excess Allowance, at the written request of Tenant, shall be applied by Landlord towards Rent due under the Lease as additional Abated Rent after the Third Rent Abatement Period. If the cost of the Tenant’s Work exceeds the AllowanceAllowance required to be disbursed hereunder, Tenant shall have sole responsibility for the payment of such excess cost, and and, at Landlord’s election, Tenant shall be obligated to pay any such excess its “pro‑rata share” (as defined in Paragraph 9(g) below) of the Allowance Permitted Costs when due from time to time (i.e., based on upon the most recent estimates of the cost of the Tenant’s Work delivered by Tenant under Paragraph 3 above or otherwise furnished by Tenant, in certified form, upon Xxxxxxxx’s request from time to time of the total cost of the Tenant's Worktherefor) prior as an express condition for Landlord’s obligation to disburse any further disbursement portion of the Allowance. It is acknowledged that , and in such event, Landlord intends that not less than $2,307,371.00 (i.e., being approximately $19.66 per square feet of Rentable Area shall have no obligation to further disburse any portion of the Premises) Allowance until Xxxxxx’s pro‑rata share of the overall Allowance be contributed to so-called "hard" construction costs for the Tenant's Work (which "hard" construction costs, for purposes hereof, shall include all costs and fees payable under the construction contract with Tenant's general contractor or under any other construction contracts entered into by Tenant relative to the construction of the Tenant's Work, together with all costs associated with permits and other governmental approvals, the "supervisory fees" payable to Landlord under Paragraph 5 hereof, and all costs associated with the installation of telephone and cabling lines into the walls of the Premises), and it is hereby agreed that no more than $704,274.00 (i.e., being $6.00 per square foot of Rentable Area of the Premises) of the overall Allowance (herein, the "Available Soft Cost Contribution") may be applied by Tenant to pay for so-called "soft" costs associated with Tenant's construction of the Tenant's Work, including moving/relocation to the Premises (which "soft" costs, for purposes hereof, shall include all architectural and engineering costs and fees, moving expenses, relocation costs, consulting fees and other reimburseable expenses; all costs of furniture, fixtures and equipment; telephone and cabling costs associated with the interior of the Premises; and all other costs and expenses Permitted Costs have been so paid by Tenant to Landlord hereunder, other than the "supervisory fees" specifically set forth in Paragraph 5 of this Agreement)Tenant.
(b) Periodically, but not more frequently than once per calendar month, Tenant may submit to Landlord a written payment request for costs of the Tenant's ’s Work incurred and not previously paid naming the parties to be paid paid, and the respective amounts of such payments, which payment request shall be accompanied by:
(i) A statement in writing under oath customary “sworn owner’s statement” signed by Tenant Xxxxxx stating the various contracts entered into by Tenant for the Tenant's ’s Work and with respect to each: the total contract price of all labor, work, services and materials; the amounts theretofore paid thereon; the amount requested for the current disbursement; and the balance due for such labor, work, services and materials, after payment of the current disbursement, to complete the Tenant's ’s Work in accordance with the Plans;
(ii) A written application for payment from each of Tenant's ’s Contractors disclosed in the aforesaid sworn Tenant's ’s statement wherein each of Tenant's ’s Contractors certifies completion and the cost of that portion of the Tenant's ’s Work for which payment is requested (with designations for allocations between the Office Space and Warehouse Space, as applicable) and further certifies that the cost to complete the Tenant's ’s Work remaining to be done under said contract will not exceed the balance due thereunder (without including in such balance any required retainages) and a statement in writing under oath or verified by affidavit of Tenant's ’s Contractor stating: the names of all persons, firms, associations, corporations or other parties by whom labor, materials, services or work will he be rendered or furnished pursuant to the contract with Tenant's ’s Contractor; the nature of labor, work, services and materials to be rendered or furnished by each of the foregoing; the amounts (in the case of firm subcontracts) and estimated amounts (in other cases) to be paid for such labor, work, services and materials; the amounts theretofore paid thereon; the amount requested for the current disbursement; and the balance due for such labor, work, services and materials, after payment of the current disbursement, to complete the work described in such subcontract;
(iii) A statement from each of the subcontractors and materialmen disclosed in the aforesaid Tenant's Xxxxxx’s Contractor's ’s sworn statement, in writing under oath or verified by affidavit of a duly authorized agent of such subcontractor of the parties furnishing materials and labor to it or for their account, and of the amounts due or to become due each;
(iv) Certificate for payment executed by Tenant, acting in its capacity as the an architect for the Tenant's Work, acceptable to Landlord on American Institute of Architect's ’s Form G-702 and G-703;; and
(v) Originals of partial waivers of lien from each of Tenant's ’s Contractors and all materialmen and vendors requesting payment covering such requested payment; and
(vi) Evidence reasonably satisfactory to Landlord that Tenant has paid or will pay, simultaneous with payment by Landlord, Tenant's required share of the costs of the Tenant's Work. Provided that the foregoing deliveries have been made, and so long as Tenant is a Default has not then in default hereunder or occurred under the LeaseLease or this Work Letter, or a default beyond applicable notice and/or cure periods by Tenant has not occurred under any separate construction management agreement entered into between Tenant and Landlord, in each case for which Xxxxxx has received written notice from Landlord, then Landlord shall disburse portions of the Allowance in the amount of the requested disbursement no later than thirty (30) days after the last day of the calendar month immediately succeeding the calendar month in which Tenant submits each such request therefortherefor (provided that if Tenant cures any such default within applicable cure periods, then Landlord shall again be obligated to disburse said Allowance as provided herein).
(c) Landlord may make payments of the Allowance through a construction escrow established with Landlord's Xxxxxxxx’s title insurance company pursuant to which escrow said title company shall examine the sworn statements and lien waivers provided by Tenant Xxxxxx and Tenant's Xxxxxx’s Contractors and, if so required by LandlordXxxxxxxx, insure against mechanic lien claims for work done through the date of Tenant's ’s Contractors' ’ most recent request for payment, in which case Tenant Xxxxxx agrees to comply with the reasonable terms and conditions of such construction escrow. The escrowee's ’s charges therefor shall be deemed part of the costs of the Tenant's Workpaid for by Landlord. Notwithstanding anything to the contrary contained herein or in the Lease, in the event Landlord makes payments of the Allowance through a construction escrow as provided in this paragraph, Tenant's ’s Contractors may, at their own expense, arrange to provide "“trailing" ” waivers (lien waivers which are dated up to thirty (30) days earlier than the contractor's ’s request for payment) if Landlord's ’s lender so permits and Landlord's ’s title insurance company nevertheless provides the insurance called for by this paragraphParagraph.
(d) Within thirty (30) days after final completion and installation of the Tenant's ’s Work, Tenant shall submit to Landlord a detailed breakdown of the total amount of the costs of the Tenant's ’s Work, together with final waivers of liens, contractors' ’ affidavits, and architects' ’ certificates in such form as may be reasonably required by Landlord, Landlord's ’s title insurance company and Landlord's ’s lender, if any, from all parties performing labor or supplying materials or services in connection with the Tenant's ’s Work, showing that all of said parties have been compensated in full and waiving all liens in connection with the Premises and Building.
(e) Landlord has no obligation to disburse any portion of the Allowance during any period when Tenant is in (A) monetary default hereunder or a Default has occurred under the Lease (provided that if or a default beyond applicable notice and/or cure periods by Tenant cures has occurred under any such monetary default separate construction management agreement entered into between Tenant and Landlord, in the time and manner provided in the Lease after each case for which Xxxxxx has received written notice from Landlord, then Tenant shall again be entitled to disbursement of the Allowance in accordance with the other terms and conditions set forth herein) or (B) non-monetary "Default" hereunder or under the Lease (i.e., meaning a non-monetary default which has not been cured by Tenant in the time and manner described in the Lease after written notice from Landlord). Disbursement of any portion of the Allowance shall not be deemed a waiver of Tenant's ’s obligation to comply with such provisions. Tenant shall be responsible for the appropriateness and completeness of the contractors' ’ affidavits and waivers of lien and approval of any of such work; Landlord shall have no responsibility for any of the foregoing.
(f) Landlord shall have the right to withhold a (i) ten percent (10% %) retainage until the Tenant’s work is fifty (50%) complete, and thereafter, (ii) five percent (5%), until substantial completion of the Tenant’s work, from the Allowance until final disbursement any disbursements of the Allowance is due hereunder (subjectotherwise required hereunder. Landlord shall disburse such retainage, howevertogether with the balance of the Allowance, to upon Tenant’s satisfaction of the terms of Paragraph 7(k) above). Subject to Paragraph 7(k) above, Landlord shall make final disbursement of the Allowance, upon Tenant's satisfaction of above and the terms of Paragraphs this Paragraph 9 (including, without limitation the terms of Paragraph 9(b) and Paragraph 9(d) above above) and Tenant's ’s final request for payment (which request shall be made no earlier than the Additional Premises Commencement Date) and certification that the entire Tenant's ’s Work has been performed and that the amounts for which payment is requested are due and owing, which disbursement shall be made within thirty (30) days after no later than the last day of the calendar month immediately succeeding the calendar month in which the foregoing requirements are satisfied and in which there has been presentation by Tenant to Landlord of request for payment and appropriate and complete contractor's ’s affidavits and waivers of lien showing that the work covered thereby has been performed in the Premises.
(g) Notwithstanding anything contained in the Lease or in this Work Letter to the contrary, in no event shall Tenant be entitled to any portion of the Allowance at any time after the 12-month anniversary of the Possession Date. In the event that the cost of the Tenant's ’s Work and such other items for which the Allowance may be applied should for any reason be less greater than the full maximum Allowance provided by Landlord hereunder, Tenant shall have sole responsibility for the payment of such excess cost, and Tenant shall, at Landlord’s option, for each pending draw request, pay such portion of the pending draw request which is necessary so that Tenant has then paid, together with any previous payments made by Tenant on account of the Allowance Permitted Costs, an amount equal to Tenant’s pro‑rata share (as hereinafter defined) of the Allowance Permitted Costs, all as a condition to Landlord’s disbursement or further disbursement of portions of the Allowance, Tenant shall be entitled to receive such difference and all as a credit against Monthly Base Rent for the Premises next coming due under the Lease; provided that Tenant shall not be so entitled to any portion of such difference exceeding $1,467,237.50 (i.e., being $12.50 per square foot of Rentable Area otherwise described in Paragraph 9(a) above. For purposes of the Premises)foregoing, and in no event shall such credit against Monthly Base Rent exceed $733,618.75 (i.e., being $6.25 per square foot of Rentable AreaA) in any one calendar year.
(h) Without limitation Tenant’s “pro‑rata share” of the foregoing terms regarding applicable Allowance Permitted Costs shall mean (1) the "Allowance" due and owing from Landlord hereunder, Landlord hereby agrees to make the following contribution (the "Space Plan Allowance") pursuant to the following terms and conditions:
(i) A contribution toward the fees and costs due and owing from Tenant to its space planner in connection with the preparation total amount of the initial space plans (and up Allowance Permitted Costs incurred to two date, less (2) revisions thereof) for Tenant's Work in the amount not to exceed $4,314.50 (i.e., being $.10 per square foot of Rentable Area of the Additional Premises, as defined in the Third Amendment). Within thirty (30) days following submission by Tenant to Landlord of a payment request with respect to the Space Plan Allowance, which request shall include a copy of the invoice(s) showing amounts due ”Landlord’s Share”; and owing to Tenant's space planner in connection with said space plans, or an invoice showing the fees and costs expensed internally by Tenant or one of its Affiliates to prepare the space plan, and, if requested by Landlord, a lien waiver from said space planner showing that all amounts so due and owing in connection with the preparation of the space plans have been fully paid, Landlord shall disburse the Space Plan Allowance to Tenant or, at Tenant's direction, directly to the aforedescribed space planner. Landlord has no obligation to disburse any portion of the Space Plan Allowance during any period when Tenant is in (A) monetary default hereunder or under the Lease or under any Tenant Construction Agreement applicable to the Tenant's Work (provided that if Tenant cures any such monetary default in the time and manner provided in the Lease after written notice from Landlord, then Tenant shall again be entitled to disbursement of the Space Plan Allowance in accordance with the other terms and conditions set forth herein), or (B) non-monetary "Default" hereunder or under the Lease or under any Tenant Construction Agreement applicable to the Tenant's Work (i.e., meaning a non-monetary default which has not been cured by Tenant in the time and manner described in the Lease after written notice from Landlord). Disbursement of any portion of the Space Plan Allowance shall not be deemed a waiver of Tenant's obligation to comply with such provisions. In the event that the fees and costs payable by Tenant to its space planner in connection with preparation of the foregoing space plans is, for any reason, less than the full amount of the Space Plan Allowance, then Tenant shall not be entitled to receive any such difference. In the event that the foregoing fees and costs are greater than the Space Plan Allowance, Tenant shall be fully responsible for the payment of all such excess costs and fees.term “
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