Common use of Construction of Improvements in Assigned Space Clause in Contracts

Construction of Improvements in Assigned Space. (1) Aside from any construction obligations described as “Port’s Work”, if any, in the Work Letter approved by Port when it approves Permittee’s plans and specifications pursuant to Section 1(2)(c) below (the “Work Letter”), Port shall have no obligation to perform any construction work or improvements to prepare the Assigned Space for Permittee’s Work described in the Work Letter. (a) Permittee must, at Permittee’s sole cost and expense, construct, install and provide all of the “Permittee’s Work” as described in the Work Letter in strict conformity with the Construction Schedule described therein, in this subsection 2(a), and in accordance with the Director’s written instructions, if any. Permittee shall coordinate the timing of Permittee’s Work with the Construction Schedule and Director’s instructions so that Permittee’s Work will not interfere with or cause a delay in any other construction activities authorized by the Port. Permittee shall be liable for any Losses (as defined in Section 1(2)(d) below) incurred by Port arising out of Permittee’s breach of its obligations under this Section 1. Permittee must diligently complete Permittee’s Work and open the Concession Unit for business on or before the Rent Commencement Date, all in accordance with the Work Letter and the other provisions of this Permit. In no event will Permittee be entitled to any financial contribution, loan guarantee, or other financial support from Port with regard to Permittee’s Work. Permittee further agrees that it will submit the following to Port for its approval pursuant to this Section 1(2), in accordance with the schedule set forth below: Conceptual review within 60 days from the Commencement Date, for all Alterations. Schematic Design review within 30 days from approval of Conceptual Plan. 50% complete construction plans and specifications for Permittee’s Work within 30 days from the Port’s approval of Permittee’s Schematic Design. 100% complete construction plans and specifications for Permittee’s Work within 30 days from the Port’s approval of Permittee’s 50% complete construction plans and specifications. Permittee further agrees to obtain the Port’s written approval of Permittee’s plans and specifications pursuant to Section 1(2)(c) below and all permits required by Section 1(2)(d) below prior to commencement of any of Permittee’s Work, and to complete all of Permittee’s Work in the Assigned Space prior to the Latest Opening Date for the Concession Unit, as set forth on attached Exhibit “5”. (b) The hard construction costs of Permittee’s Work in the Concession Unit must equal or exceed the Minimum Investment Amount of Dollars ($ ) per square foot, based on the size of the Concession Unit as shown on attached Exhibit “5”. Such “hard construction costs” may include architectural and engineering fees, construction management costs and inspection costs associated with Permittee’s work, provided the credit for such costs against the Minimum Investment Amount shall not exceed twenty percent (20%) of the Minimum Investment Amount. Such “hard construction costs” may not include, by way of example but not by way of limitation, the cost of litigation, arbitration or other costs of any dispute, attorney’s fees in preparing contracts, costs of insurance or insurance deductibles. Within one hundred twenty (120) days after substantial completion of Permittee’s Work, Permittee must provide to Port an affidavit, signed by Permittee and any of the Permittee’s general contractor, architect or construction manager, under penalty of perjury, stating the hard construction costs paid by Permittee to complete Permittee’s Work, together with copies of paid invoices, cancelled checks and lien waivers substantiating the costs stated in the affidavit. Without limitation, hard construction costs do not include business interruption, inventory, pre- opening expenses, overhead, or debt service on any construction loan; or any charges paid by Permittee to any Affiliated Person (as hereafter defined), unless and to the extent such charges have been approved by Director. If the hard construction costs paid by Permittee to complete Permittee’s Work do not equal or exceed the Minimum Investment Amount for the Concession Unit, then Permittee must pay Port within sixty (60) days of substantial completion of Permittee’s Work in such Concession Unit an amount equal to the deficiency. Permittee shall maintain in a true and accurate manner and in accordance with generally accepted accounting principles, such original books and records as would normally be examined by an independent certified public accountant pursuant to generally accepted auditing standards in performing an audit or examination of such hard construction costs. At any time, upon three (3) business days notice, Port or its representatives may audit and copy all of Permittee’s books, records and source documents related to the hard construction costs paid by Permittee to complete Permittee’s Work in such Concession Unit. Such books and records shall be made available at the Assigned Space or at the offices of the Port; provided, however, that if such is not possible, Permittee shall pay for all reasonable and actual costs incurred by the Port in inspecting and auditing such books and records, including but not limited to travel, lodging and subsistence costs. If the audit reveals that the hard construction costs paid by Permittee were less than those stated in Permittee’s affidavit, then Permittee must pay Port for the costs incurred by Port in connection with the audit plus any additional deficiency discovered between the hard construction costs paid by Permittee and the Minimum Investment Amount for such Concession Unit, plus interest thereon at the rate provided in Section 26 below from the date of substantial completion of Permittee’s Work in such Concession Unit until payment has been received by the Port. As used in this Permit, “Affiliated Person” shall mean, with respect to Permittee, any person or entity directly or indirectly Controlling, Controlled by or under Common Control with Permittee. As used in this Permit, “Control” (including the correlative meanings of the terms “Controlling”, “Controlled by” and “under Common Control with”, as used with respect to any person or entity, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such person or entity whether through ownership of voting securities, by contract or otherwise.

Construction of Improvements in Assigned Space. (1) Aside from any construction obligations described as “Port’s Work”, if any, in the Work Letter approved by Port when it approves Permittee’s plans and specifications pursuant to Section 1(2)(c) below (the “Work Letter”), Port shall have no obligation to perform any construction work or improvements to prepare the Assigned Space for Permittee’s Work described in the Work Letter. (a) Permittee must, at Permittee’s sole cost and expense, construct, install and provide all of the “Permittee’s Work” as described in the Work Letter in strict conformity with the Construction Schedule described therein, in this subsection 2(a), and in accordance with the Director’s written instructions, if any. Permittee shall coordinate the timing of Permittee’s Work with the Construction Schedule and Director’s instructions so that Permittee’s Work will not interfere with or cause a delay in any other construction activities authorized by the Port. Permittee shall be liable for any Losses (as defined in Section 1(2)(d) below) incurred by Port arising out of Permittee’s breach of its obligations under this Section 1. Permittee must diligently complete Permittee’s Work and open the Concession Unit for business on or before the Rent Commencement Date, all in accordance with the Work Letter and the other provisions of this Permit. In no event will Permittee be entitled to any financial contribution, loan guarantee, or other financial support from Port with regard to Permittee’s Work. Permittee further agrees that it will submit the following to Port for its approval pursuant to this Section 1(2), in accordance with the schedule set forth below: Conceptual review within 60 days from the Commencement Date, for all Alterations. Schematic Design review within 30 days from approval of Conceptual Plan. 50% complete construction plans and specifications for Permittee’s Work within 30 days from the Port’s approval of Permittee’s Schematic Design. 100% complete construction plans and specifications for Permittee’s Work within 30 days from the Port’s approval of Permittee’s 50% complete construction plans and specifications. Permittee further agrees to obtain the Port’s written approval of Permittee’s plans and specifications pursuant to Section 1(2)(c) below and all permits required by Section 1(2)(d) below prior to commencement of any of Permittee’s Work, and to complete all of Permittee’s Work in the Assigned Space prior to the Latest Opening Date for the Concession Unit, as set forth on attached Exhibit “5”. (b) The hard construction costs of Permittee’s Work in the Concession Unit must equal or exceed the Minimum Investment Amount of Dollars ($ ) per square foot, based on the size of the Concession Unit as shown on attached Exhibit “5”. Such “hard construction costs” may include architectural and engineering fees, construction management costs and inspection costs associated with Permittee’s work, provided the credit for such costs against the Minimum Investment Amount shall not exceed twenty percent (20%) of the Minimum Investment Amount. Such “hard construction costs” may not include, by way of example but not by way of limitation, the cost of litigation, arbitration or other costs of any dispute, attorney’s fees in preparing contracts, costs of insurance or insurance deductibles. Within one hundred twenty (120) days after substantial completion of Permittee’s Work, Permittee must provide to Port an affidavit, signed by Permittee and any of the Permittee’s general contractor, architect or construction manager, under penalty of perjury, stating the hard construction costs paid by Permittee to complete Permittee’s Work, together with copies of paid invoices, cancelled checks and lien waivers substantiating the costs stated in the affidavit. Without limitation, hard construction costs do not include business interruption, inventory, pre- opening expenses, overhead, or debt service on any construction loan; or any charges paid by Permittee to any Affiliated Person (as hereafter defined), unless and to the extent such charges have been approved by Director. If the hard construction costs paid by Permittee to complete Permittee’s Work do not equal or exceed the Minimum Investment Amount for the Concession Unit, then Permittee must pay Port within sixty (60) days of substantial completion of Permittee’s Work in such Concession Unit an amount equal to the deficiency. Permittee shall maintain in a true and accurate manner and in accordance with generally accepted accounting principles, such original books and records as would normally be examined by an independent certified public accountant pursuant to generally accepted auditing standards in performing an audit or examination of such hard construction costs. At any time, upon three (3) business days notice, Port or its representatives may audit and copy all of Permittee’s books, records and source documents related to the hard construction costs paid by Permittee to complete Permittee’s Work in such Concession Unit. Such books and records shall be made available at the Assigned Space or at the offices of the Port; provided, however, that if such is not possible, Permittee shall pay for all reasonable and actual costs incurred by the Port in inspecting and auditing such books and records, including but not limited to travel, lodging and subsistence costs. If the audit reveals that the hard construction costs paid by Permittee were less than those stated in Permittee’s affidavit, then Permittee must pay Port for the costs incurred by Port in connection with the audit plus any additional deficiency discovered between the hard construction costs paid by Permittee and the Minimum Investment Amount for such Concession Unit, plus interest thereon at the rate provided in Section 26 below from the date of substantial completion of Permittee’s Work in such Concession Unit until payment has been received by the Port. As used in this Permit, “Affiliated Person” shall mean, with respect to Permittee, any person or entity directly or indirectly Controlling, Controlled by or under Common Control with Permittee. As used in this Permit, “Control” (including the correlative meanings of the terms “Controlling”, “Controlled by” and “under Common Control with”, as used with respect to any person or entity, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such person or entity whether through ownership of voting securities, by contract or otherwise.

Construction of Improvements in Assigned Space. (1) Aside from any construction obligations described as “Port’s Work”, if any, in the Work Letter approved by Port when it approves Permittee’s plans and specifications pursuant to Section 1(2)(c) below (the “Work Letter”), Port shall have no obligation to perform any construction work or improvements to prepare the Assigned Space for Permittee’s Work described in the Work Letter. (2) (a) Commencing on the Delivery Date for each Concession Unit, Permittee must, at Permittee’s sole cost and expenseexpense (except as otherwise expressly provided in Section 2(g) below), construct, install and provide all of the “Permittee’s Work” as described in the Work Letter in strict conformity with the Construction Schedule described therein, in this subsection 2(aSection 1(2)(a), and in accordance with the Director’s written instructions, if any. Permittee shall coordinate the timing of Permittee’s Work with the Construction Schedule and Director’s instructions so that Permittee’s Work will not interfere with or cause a delay in any other construction activities authorized by the Port. Permittee shall be liable for any Losses (as defined in Section 1(2)(d) below) incurred by Port arising out of Permittee’s breach of its obligations under this Section 1. The parties anticipate that Permittee will be required to perform Permittee’s Work in phases, in order for Permittee to implement its Transition Plan. As to each Concession Unit, Permittee must diligently complete Permittee’s Work and open the that Concession Unit for business on or before the Rent Commencement DateDate applicable to such Concession Unit, all in accordance with the Work Letter and the other provisions of this Permit. In no event will Permittee be entitled to any financial contribution, loan guarantee, or other financial support from Port with regard to Permittee’s Work. If alternative time frames and conditions are contained in the Tenant Design Standards, then the Tenant Design Standards shall prevail; otherwise, Permittee further agrees that it will submit the following to Port for its approval pursuant to this Section 1(2), in accordance with the schedule set forth below: Conceptual and Transition Plan review within 60 days from the Commencement Date, for all AlterationsAlterations in the Airport. Schematic Design review within 30 days from approval of Conceptual and Transition Plan. 50% complete construction plans and specifications for Permittee’s Work within 30 days from the Port’s approval of Permittee’s Schematic Designconceptual plan. 100% complete construction plans and specifications for Permittee’s Work within 30 days from the Port’s approval of Permittee’s 50% complete construction plans and specifications. Permittee further agrees to obtain the Port’s written approval of Permittee’s plans and specifications pursuant to Section 1(2)(c) below and all permits required by Section 1(2)(d) below prior to commencement of any of Permittee’s Work, and to complete all of Permittee’s Work in a Concession Unit in the Assigned Space prior to the Latest Opening Date opening date for the that Concession Unit, as set forth opposite that Concession Unit on attached Exhibit “5”. (b) The hard construction costs of Permittee’s Work in the Concession Unit must equal or exceed the Minimum Investment Amount of Dollars ($ ) per square foot, based on the size of the Concession Unit as shown on attached Exhibit “5”. Such “hard construction costs” may include architectural and engineering fees, construction management costs and inspection costs associated with Permittee’s work, provided the credit for such costs against the Minimum Investment Amount shall not exceed twenty percent (20%) of the Minimum Investment Amount. Such “hard construction costs” may not include, by way of example but not by way of limitation, the cost of litigation, arbitration or other costs of any dispute, attorney’s fees in preparing contracts, costs of insurance or insurance deductibles. Within one hundred twenty (120) days after substantial completion of Permittee’s Work, Permittee must provide to Port an affidavit, signed by Permittee and any of the Permittee’s general contractor, architect or construction manager, under penalty of perjury, stating the hard construction costs paid by Permittee to complete Permittee’s Work, together with copies of paid invoices, cancelled checks and lien waivers substantiating the costs stated in the affidavit. Without limitation, hard construction costs do not include business interruption, inventory, pre- opening expenses, overhead, or debt service on any construction loan; or any charges paid by Permittee to any Affiliated Person (as hereafter defined), unless and to the extent such charges have been approved by Director. If the hard construction costs paid by Permittee to complete Permittee’s Work do not equal or exceed the Minimum Investment Amount for the Concession Unit, then Permittee must pay Port within sixty (60) days of substantial completion of Permittee’s Work in such Concession Unit an amount equal to the deficiency. Permittee shall maintain in a true and accurate manner and in accordance with generally accepted accounting principles, such original books and records as would normally be examined by an independent certified public accountant pursuant to generally accepted auditing standards in performing an audit or examination of such hard construction costs. At any time, upon three (3) business days notice, Port or its representatives may audit and copy all of Permittee’s books, records and source documents related to the hard construction costs paid by Permittee to complete Permittee’s Work in such Concession Unit. Such books and records shall be made available at the Assigned Space or at the offices of the Port; provided, however, that if such is not possible, Permittee shall pay for all reasonable and actual costs incurred by the Port in inspecting and auditing such books and records, including but not limited to travel, lodging and subsistence costs. If the audit reveals that the hard construction costs paid by Permittee were less than those stated in Permittee’s affidavit, then Permittee must pay Port for the costs incurred by Port in connection with the audit plus any additional deficiency discovered between the hard construction costs paid by Permittee and the Minimum Investment Amount for such Concession Unit, plus interest thereon at the rate provided in Section 26 below from the date of substantial completion of Permittee’s Work in such Concession Unit until payment has been received by the Port. As used in this Permit, “Affiliated Person” shall mean, with respect to Permittee, any person or entity directly or indirectly Controlling, Controlled by or under Common Control with Permittee. As used in this Permit, “Control” (including the correlative meanings of the terms “Controlling”, “Controlled by” and “under Common Control with”, as used with respect to any person or entity, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such person or entity whether through ownership of voting securities, by contract or otherwise.