Common use of Construction of Initial Improvements Clause in Contracts

Construction of Initial Improvements. a. Landlord shall construct the Initial Improvements in accordance with the Final Plans. b. If Tenant requests Landlord to perform additional work to the Premises outside the scope of the Final Plans, then such work shall be performed by Landlord at Tenant’s expense. Prior to commencing any such work requested by Tenant, Landlord will submit to Tenant written estimates of the cost of any such work. If Tenant fails to approve any such estimate within ten (10) days, then the same shall be deemed disapproved in all respects by Tenant, and Landlord shall not be authorized to proceed thereon. c. If Tenant fails to supply to Landlord any of the above-specified information within twenty (20) days after the dates so specified, then Landlord may, at its option, declare a Default under the Lease and exercise any of Landlord’s remedies for Default thereunder, including terminating the Lease. If Landlord so terminates the Lease, Tenant shall pay Landlord for all costs and expenses incurred by Landlord in refurbishing the Premises for Tenant within ten (10) days after Tenant’s receipt of Landlord’s invoice for same. d. Upon Substantial Completion (defined below), Landlord will assign to Tenant, on a nonexclusive basis, all warranties available from the contractors, subcontractors, suppliers, manufacturers, and materialmen for construction of the Initial Improvements. “Substantial Completion” shall mean the date Landlord has completed construction of the Initial Improvements in substantial compliance with the Final Plans (exclusive of any equipment, furniture or fixtures to be installed by Tenant and exclusive of any items on the Punch List, as defined below) and Landlord has obtained a certificate of occupancy for the Premises (as constructed with the Initial Improvements). Tenant’s sole and exclusive remedy for any defects in materials and/or workmanship shall be for the repair of such defects, or the replacement of the portion of the Initial Improvements affected by such defects, under the aforementioned warranties, and Landlord shall not be responsible for any defect of any nature in the Initial Improvements. Landlord makes no warranties, expressed or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, in connection with the Initial Improvements. Tenant’s sole remedy for breach of any applicable warranty shall be the remedy set forth in this Section. Tenant agrees that no other remedy, including without limitation incidental or consequential damages for lost profits, injury to person or property, or any other incidental or consequential loss, shall be available to Tenant.

Construction of Initial Improvements. a. Landlord shall construct the The Initial Improvements shall be constructed in accordance with the Final Plans. b. If Tenant desires to change the Final Plans, Tenant shall, at its expense, provide to Landlord plans and specifications for such change(s). All such plans and specifications shall be subject to Landlord’s written approval, which will not be unreasonably withheld. c. If Tenant requests Landlord to perform additional work to the Premises outside the scope of the Final Plans, then such work shall be performed by Landlord at Tenant’s expense. Prior to commencing any such work requested by Tenant, Landlord will submit to Tenant written estimates of the cost of any such work. If Tenant fails to approve any such estimate within ten (10) days, then the same shall be deemed disapproved in all respects by Tenant, and Landlord shall not be authorized to proceed thereon. c. d. If Tenant fails to supply to Landlord any of the above-specified information within twenty (20) days after the dates so specified, then Landlord may, at its option, declare a Default default under the Lease Agreement , as amended, and exercise any of Landlord’s remedies for Default default thereunder, including terminating the LeaseAgreement . If Landlord so terminates the LeaseAgreement , Tenant shall pay Landlord for all costs and expenses incurred by Landlord in refurbishing the Premises for Tenant within ten (10) days after Tenant’s receipt of Landlord’s invoice for same. d. e. Upon Substantial Completion (defined below), Landlord will assign to Tenant, on a nonexclusive basis, all warranties available from the contractors, subcontractors, suppliers, manufacturers, and materialmen for construction of the Initial Improvements. “Substantial Completion” shall mean the date Landlord has completed construction of the Initial Improvements in substantial compliance with the Final Plans (exclusive of any equipment, furniture or fixtures to be installed by Tenant and exclusive of any items on the Punch List, as defined below) and Landlord has obtained a applicable certificate of occupancy for the Premises (as constructed is issued with respect to the Initial Improvements). Tenant’s sole and exclusive remedy for any defects in materials and/or workmanship shall be for the repair of such defects, or the and replacement of the portion defects of the Initial Improvements affected by such defects, material and workmanship under the aforementioned warranties, and Landlord shall not be responsible for any defect of any nature in the Initial Improvements. Landlord makes no warranties, expressed or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, in connection with the Initial Improvements. Tenant’s sole remedy for breach of any applicable warranty shall be the remedy set forth in this Sectionparagraph. Tenant agrees that no other remedy, including without limitation incidental or consequential damages for lost profits, injury to person or property, or any other incidental or consequential loss, shall be available to Tenant.

Construction of Initial Improvements. a. Upon the full execution of the Lease and the approval by both parties of the Final Construction Documents, Landlord shall proceed to construct the Initial Improvements in accordance with the Final PlansConstruction Documents. b. If Tenant desires to change the Final Construction Documents, Tenant shall, at its expense, provide to Landlord plans and specifications for such change(s). All such plans and specifications shall be subject to Landlord’s written approval, which will not be unreasonably withheld. In the event any such approved change increases the Improvement Costs, such increase shall constitute Excess Costs and shall be paid by Tenant as provided in Section 1(c) of this Work Letter. c. If Tenant requests Landlord to perform additional work to the Premises outside the scope of the Final PlansConstruction Documents, then such work shall be performed by Landlord at Tenant’s expense. Prior to commencing any such work requested by Tenant, Landlord will submit to Tenant written estimates of the cost of any such work. If Tenant fails to approve any such estimate within ten (10) days, then the same shall be deemed disapproved in all respects by Tenant, and Landlord shall not be authorized to proceed thereon. c. d. If Tenant fails to supply to provide Landlord with any of the above-specified information items within twenty (20) days after the dates so specifiedspecified herein, then Landlord may, at its option, declare a Default under the Lease and exercise any of Landlord’s remedies for Default thereunder, including terminating the Lease. If Landlord so terminates the Lease, Tenant shall pay Landlord for all costs and expenses incurred by Landlord in refurbishing the Premises for Tenant within ten (10) days after Tenant’s receipt of Landlord’s invoice for same. d. e. Upon Substantial Completion (defined below), Landlord will assign to Tenant, on a nonexclusive basis, all warranties available from the contractors, subcontractors, suppliers, manufacturers, and materialmen for construction of the Initial Improvements. “Substantial Completion” shall mean the earlier of (i) the date Landlord has completed construction of the Initial Improvements in substantial compliance are completed such that Tenant can take beneficial occupancy of the Premises (with the Final Plans term “beneficial occupancy” defined as the Premises being ready for furniture installation and/or move-in by Tenant) or (exclusive of any equipment, furniture ii) the date an applicable certificate or fixtures to be installed by Tenant and exclusive of any items on the Punch List, as defined below) and Landlord has obtained a temporary certificate of occupancy for the Premises (or completion, as constructed applicable, is issued with respect to the Initial Improvements). Tenant’s sole and exclusive remedy for any defects in materials and/or workmanship shall be for the repair of such defects, or the replacement of the portion of the Initial Improvements affected by such defects, under the aforementioned warranties, and Landlord shall not be responsible for any defect of any nature in the Initial Improvements. Landlord makes no warranties, expressed or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, in connection with the Initial Improvements. Tenant’s sole remedy for breach of any applicable warranty shall be the remedy set forth in this Section. Tenant agrees that no other remedy, including without limitation incidental or consequential damages for lost profits, injury to person or property, or any other incidental or consequential loss, shall be available to Tenant.

Construction of Initial Improvements. a. Landlord shall construct In connection with the construction of the Initial Improvements Improvements, Tenant shall cause its contractors and subcontractors to carry insurance as provided in accordance with Paragraph 8 below. Tenant’s contractors and subcontractors performing any Initial Improvement work shall be licensed in California. Tenant shall be responsible for obtaining all necessary permits and approvals required for the Final Plans. b. If Tenant requests Landlord to perform additional work to construction and installation of the Premises outside the scope Initial Improvements. Following Landlord’s approval of the Final Plans, then such work and after Tenant has obtained all necessary permits and approvals required for the construction and installation of the Initial Improvements, Tenant may promptly commence construction and installation of the Initial Improvements and shall thereafter pursue the same diligently to completion. Any damage to the Building caused by Tenant or its contractors or subcontractors in connection with the construction of the Initial Improvements shall be performed by Landlord repaired at Tenant’s expense. Prior to commencing any such All work requested by Tenantdone in connection with the Initial Improvements shall be performed in compliance with all applicable laws, Landlord will submit to Tenant written estimates ordinances, rules, orders and regulations of all federal, state, county and municipal governments or agencies now in force or that may be enacted hereafter and with all directives rules and regulations of the cost fire marshal, health officer, building inspector or other proper officers of any such workgovernmental agency now having or hereafter acquiring jurisdiction. If Tenant fails agrees to approve comply, at no cost to Landlord, with any such estimate within ten (10) days, then reasonable recommendations made by Landlord to minimize any negative impact construction or installation of the same Initial Improvements may have on other tenants or occupants of the Building or Project or on the Building or Project. Tenant will manage the construction of the Initial Improvements and no construction management or supervision fee shall be deemed disapproved in all respects paid by Tenant, and Landlord shall not be authorized to proceed thereon. c. If Tenant fails to supply to Landlord any of in connection with the above-specified information within twenty (20) days after the dates so specified, then Landlord may, at its option, declare a Default under the Lease and exercise any of Landlord’s remedies for Default thereunder, including terminating the Lease. If Landlord so terminates the Lease, Tenant shall pay Landlord for all costs and expenses incurred by Landlord in refurbishing the Premises for Tenant within ten (10) days after Tenant’s receipt of Landlord’s invoice for same. d. Upon Substantial Completion (defined below), Landlord will assign to Tenant, on a nonexclusive basis, all warranties available from the contractors, subcontractors, suppliers, manufacturers, and materialmen for construction of the Initial Improvements. “Substantial Completion” Tenant shall mean have the date right to use consultants and contractors selected by Tenant and approved by Landlord has completed (which approval shall not be unreasonably withheld, conditioned or delayed) in connection with the construction of the Initial Improvements in substantial compliance with the Final Plans (exclusive of any equipment, furniture or fixtures Improvements. Tenant hereby discloses to be installed by Tenant and exclusive of any items on the Punch List, as defined below) and Landlord has obtained a certificate of occupancy that Tenant’s general contractor for the Premises (as constructed with the Initial Improvements). Tenant’s sole and exclusive remedy for any defects in materials and/or workmanship shall be for the repair of such defects, or the replacement of the portion performance of the Initial Improvements affected by such defects, under the aforementioned warranties, shall be McClarney Construction and Landlord shall not be responsible for any defect approves McClarney Construction as Tenant’s general contractor. Promptly following completion of any nature in the Initial Improvements (or earlier termination of the Lease, if applicable), Tenant agrees to furnish to Landlord, at no cost to Landlord, a copy of all permits and approvals obtained by Tenant with respect to the construction or installation of the Initial Improvements. Landlord makes no warranties, expressed or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, in connection with the Initial Improvements. Tenant’s sole remedy for breach of any applicable warranty shall be the remedy set forth in this Section. Tenant agrees that no other remedy, including without limitation incidental or consequential damages for lost profits, injury to person or property, or any other incidental or consequential loss, shall be available to Tenant.

Construction of Initial Improvements. a. Upon the full execution of the Lease and the approval by both parties of the Final Plans and the Approved Budget, Landlord shall proceed to construct the Initial Improvements in accordance with the Final PlansPlans and the Approved Budget. b. If Tenant desires to change the Final Plans, Tenant shall, at its expense, provide to Landlord plans and specifications for such change(s). All such plans and specifications shall be subject to Landlord’s written approval, which will not be unreasonably withheld. c. If Tenant requests Landlord to perform additional work to the Premises outside the scope of the Final Plans, then such work shall be performed by Landlord at Tenant’s expense, provided however any unused portion of the Improvement Allowance may be used by Tenant to pay for such additional work. Prior to commencing any such work requested by Tenant, Landlord will submit to Tenant written estimates of the cost of any such work. If Tenant fails to approve any such estimate within ten (10) days, then the same shall be deemed disapproved in all respects by Tenant, and Landlord shall not be authorized to proceed thereon. c. d. If Tenant fails to supply to Landlord any of the above-specified information within twenty (20) days after the dates so specified, then Landlord may, at its option, declare a Default under the Lease and exercise any of Landlord’s remedies for Default thereunder, including terminating the Lease. If Landlord so terminates the LeaseAgreement, Tenant shall pay Landlord for all costs and expenses incurred by Landlord in refurbishing the Premises for Tenant within ten (10) days after Tenant’s receipt of Landlord’s invoice for same. d. e. Upon Substantial Completion (defined below), Landlord will assign to Tenant, on a nonexclusive basis, all warranties available from the contractors, subcontractors, suppliers, manufacturers, and materialmen for construction of the Initial Improvements. “Substantial Completion” shall mean the date Landlord has completed construction the applicable certificate of occupancy is issued with respect to the Initial Improvements in substantial compliance with subject to nonmaterial punch list items, and the Final Plans (exclusive of any equipment, furniture or fixtures to Premises can be installed used by Tenant and exclusive of any items on the Punch List, as defined below) and Landlord has obtained a certificate of occupancy for the Premises (Authorized Use without material interference as constructed with a result of the Initial Improvements)punch list items. Tenant’s sole and exclusive remedy for any defects in materials and/or workmanship shall be for the repair of such defects, or the replacement of the portion of the Initial Improvements affected by such defects, under the aforementioned warranties, and Landlord shall not be responsible for any defect of any nature in the Initial Improvements. Landlord makes no warranties, expressed or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, in connection with the Initial Improvements. Tenant’s sole remedy for breach of any applicable warranty shall be the remedy set forth in this Section. Tenant agrees that no other remedy, including without limitation incidental or consequential damages for lost profits, injury to person or property, or any other incidental or consequential loss, shall be available to Tenant.

Construction of Initial Improvements. a. Upon the full execution of the Lease and the approval by both parties of the Final Plans, Landlord shall proceed to construct the Initial Improvements in accordance with the Final Plans. b. If Tenant desires to change the Final Plans, Tenant shall, at its expense, provide to Landlord plans and specifications for such change(s). All such plans and specifications shall be subject to Landlord’s written approval, which will not be unreasonably withheld. Tenant shall be responsible for all costs related to such changes. c. If Tenant requests Landlord to perform additional work to the Premises outside the scope of the Final Plans, then such work work, if approved by Landlord, shall be performed by Landlord at Tenant’s expense. Prior to commencing any such work requested by Tenant, Landlord will submit to Tenant written estimates of the cost of any such work. If Tenant fails to approve any such estimate within ten five (105) business days, then the same shall be deemed disapproved in all respects by Tenant, and Landlord shall not be authorized to proceed thereon. c. d. If Tenant fails to supply to Landlord any of the above-specified information within twenty ten (2010) days after the dates so specified, then Landlord may, at its option, declare a Default under the Lease and exercise any of Landlord’s remedies for Default thereunder, including terminating the Lease. If Landlord so terminates the LeaseAgreement, Tenant shall pay Landlord for all costs and expenses incurred by Landlord in designing and refurbishing the Premises for Tenant within ten (10) days after Tenant’s receipt of Landlord’s invoice for same. d. e. Upon Substantial Completion (defined below), Landlord will assign to Tenant, on a nonexclusive basis, all warranties available from the contractors, subcontractors, suppliers, manufacturers, and materialmen for construction of the Initial Improvements. “Substantial Completion” shall mean that the date Landlord has Premises are broom-clean and Initial Improvements have been completed construction (as reasonably determined by Landlord) in accordance with the Final Plans, except for such incomplete items as would not materially interfere with the use of the Premises for its intended uses, as described in the Lease (but excluding items not included in the Initial Improvements in substantial compliance with the Final Plans (exclusive which are required for use of any equipment, furniture or fixtures to be installed by Tenant and exclusive of any items on the Punch List, as defined below) and Landlord has obtained a certificate of occupancy for the Premises (as constructed with the Initial Improvementsfor such purposes). 47842-0001 NY\53603744.6 Tenant’s sole and exclusive remedy for any defects in materials and/or workmanship shall be for the repair of such defects, or the replacement of the portion of the Initial Improvements affected by such defects, under the aforementioned warranties, and Landlord shall not be responsible for any defect of any nature in the Initial Improvements. Landlord makes no warranties, expressed or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, in connection with the Initial Improvements. Tenant’s sole remedy for breach of any applicable warranty shall be the remedy set forth in this Section. Tenant agrees that no other remedy, including without limitation incidental or consequential damages for lost profits, injury to person or property, or any other incidental or consequential loss, shall be available to Tenant.

Construction of Initial Improvements. a. Landlord (a) Tenant, at Tenant's sole and exclusive cost, except as expressly provided in (c) below, shall promptly construct and complete the Initial Improvements described on Exhibit G attached hereto and made a part hereof. --------- Tenant shall also obtain all permits and governmental approvals for the work necessary to construct and complete the Initial Improvements then applicable to the Premises, or any portion thereof. (b) Tenant agrees and covenants that, when completed, the Initial Improvements and the Premises shall be free from liens of materialmen, contractors, subcontractors, laborers, and all other mechanic's liens, subject to Tenant's right to contest any claim of lien in good faith, as provided in Article 9. Tenant shall erect, construct, install and complete the Initial Improvements in accordance with Legal Requirements (as hereinafter defined), all Insurance Requirements (as hereinafter defined) then applicable to the Final PlansPremises, or any portion thereof. b. If (c) So long as Tenant requests is not in default under this Lease and Tenant furnishes Landlord with all construction contracts, lien waivers, certificates of insurance and all other documents and things and performs all acts, necessary for Landlord to perform additional work remain in compliance with the requirements of any Lender (as hereinafter defined) which is providing Project Financing (as hereinafter defined), Landlord shall provide to Tenant the amount of not more than $250,000.00 (the "Landlord Contribution") towards the costs of those specific Initial Improvements listed on Exhibit G. Subject to the Premises outside the scope satisfaction of the Final Plans, then such work shall be performed by --------- conditions for Landlord at Tenant’s expense. Prior to commencing any such work requested by Tenantproviding the Landlord Contribution set forth in the immediately preceding sentence, Landlord will submit shall pay to Tenant written estimates the Landlord Contribution within thirty (30) days after the Commencement Date. In no event shall Landlord be obligated to advance any amount in excess of the Landlord's Contribution. If the cost of those particular Initial Improvements listed on Exhibit G is less than the Landlord Contribution, all savings shall be for the --------- exclusive benefit of Landlord, and Tenant shall not be entitled to any portion of such savings, either directly or through a credit against Rent. Tenant acknowledges that the funds for the Landlord Contribution are derived from the proceeds of a construction loan from the Lender providing Project Financing. Tenant shall comply with all reasonable obligations and requirements of the Lender that is providing the Project Financing and with any Loan Document (as hereinafter defined) with respect to the Project Financing, and shall not either commit any act or omit to perform any act which could result in Landlord defaulting or place Landlord in default under any such workLoan Document. (d) At all times during construction, Landlord and its representatives shall have the right to enter upon the Premises for the purpose of inspecting construction and progress of the Initial Improvements. If Tenant fails agrees that Landlord's entry onto and occupation of the Premises prior to approve any such estimate within ten (10) daysthe Commencement Date shall be subject to all of the terms, then covenants and conditions of this Lease as the same shall be deemed disapproved in all respects by Tenantapplicable thereto, and Landlord shall not be authorized except the covenants to proceed thereonpay Basic Rent. c. If Tenant fails (e) In addition to supply the insurance required pursuant to Landlord any of the above-specified information within twenty (20) days after the dates so specified, then Landlord may, at its option, declare a Default under the Lease and exercise any of Landlord’s remedies for Default thereunder, including terminating the Lease. If Landlord so terminates the LeaseArticle 12, Tenant shall pay Landlord for all costs procure and expenses incurred by Landlord in refurbishing the Premises for Tenant within ten (10) days after Tenant’s receipt of Landlord’s invoice for same. d. Upon Substantial Completion (defined below)maintain, Landlord will assign to Tenant, on a nonexclusive basis, all warranties available from the contractors, subcontractors, suppliers, manufacturers, and materialmen for during construction of the Initial Improvements. “Substantial Completion” shall mean , All Risk Property Insurance (as hereinafter defined) in the date Landlord has completed construction amount of the full replacement value of the Initial Improvements in substantial compliance with Improvements. (f) For purposes of this Lease, the Final Plans (exclusive of any equipment, furniture or fixtures to be installed by Tenant and exclusive of any items on following terms shall have the Punch List, as defined below) and Landlord has obtained a certificate of occupancy for the Premises (as constructed with the Initial Improvements). Tenant’s sole and exclusive remedy for any defects in materials and/or workmanship shall be for the repair of such defects, or the replacement of the portion of the Initial Improvements affected by such defects, under the aforementioned warranties, and Landlord shall not be responsible for any defect of any nature in the Initial Improvements. Landlord makes no warranties, expressed or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, in connection with the Initial Improvements. Tenant’s sole remedy for breach of any applicable warranty shall be the remedy set forth in this Section. Tenant agrees that no other remedy, including without limitation incidental or consequential damages for lost profits, injury to person or property, or any other incidental or consequential loss, shall be available to Tenant.following definitions:

Construction of Initial Improvements. a. Upon the full execution of the Lease and the approval by both parties of the Final Plans, Landlord shall proceed to construct the Initial Improvements in accordance with the Final Plans. b. If Tenant desires to change the Final Plans, Tenant shall, at its expense, provide to Landlord plans and specifications for such change(s). All such plans and specifications shall be subject to Landlord’s written approval, which will not be unreasonably withheld. c. If Tenant requests Landlord to perform additional work to the Premises outside the scope of the Final Plans, then such work shall be performed by Landlord at Tenant’s expense. Prior to commencing any such work requested by Tenant, Landlord will submit to Tenant written estimates of the cost of any such work. If Tenant fails to approve any such estimate within ten (10) days, then the same shall be deemed disapproved in all respects by Tenant, and Landlord shall not be authorized to proceed thereon. c. d. If Tenant fails to supply to Landlord any of the above-specified information within twenty (20) days after the dates so specified, then Landlord may, at its option, declare a Default under the Lease and exercise any of Landlord’s remedies for Default thereunder, including terminating the Lease. If Landlord so terminates the Lease, Tenant shall pay Landlord for all costs and expenses incurred by Landlord in refurbishing the Premises for Tenant within ten (10) days after Tenant’s receipt of Landlord’s invoice for same. d. e. Upon Substantial Completion (defined below), Landlord will assign to Tenant, on a nonexclusive basis, all warranties available from the contractors, subcontractors, suppliers, manufacturers, and materialmen for construction of the Initial Improvements. “Substantial Completion” shall mean the date Landlord has completed construction of the Initial Improvements in substantial compliance with the Final Plans (exclusive of any equipment, furniture or fixtures to be installed by Tenant and exclusive of any items on the Punch List, as defined below) and Landlord has obtained a applicable certificate of occupancy for the Premises (as constructed is issued with respect to the Initial Improvements). Tenant’s sole and exclusive remedy for any defects in materials and/or workmanship shall be for the repair of such defects, or the replacement of the portion of the Initial Improvements affected by such defects, under the aforementioned warranties, and Landlord shall not be responsible for any defect of any nature in the Initial Improvements. Landlord makes no warranties, expressed or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, in connection with the Initial Improvements. Tenant’s sole remedy for breach of any applicable warranty shall be the remedy set forth in this Section. Tenant agrees that no other remedy, including without limitation incidental or consequential damages for lost profits, injury to person or property, or any other incidental or consequential loss, shall be available to Tenant.